Microsoft Ruling Court Final Judgement
``Final Judgement'', June 7th, 2000
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, )
)
v. )
)
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
2.
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.
c. Following approval of a final plan
of divestiture by the Court (the "Plan") (and the expiration
of the stay pending appeal set forth in section 6.a),
Microsoft shall implement such Plan.
d.
e. 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:
f.
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.
iii. 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.
iv.
v. 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.
vi.
g. Until Implementation of
the Plan, Microsoft shall:
h.
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.
iii.
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;
iv.
v. 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
vi.
vii. 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.
viii.
3. Provisions Implementing Divestiture
4.
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.
5. 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.
6.
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.
7. 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.
8.
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.
9.
Compliance Inspection. This section shall remain in effect
throughout the term of this Final Judgment.
10.
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.
11. Effective Date, Term,
Retention of Jurisdiction, Modification.
12.
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.
13.
Definitions.
14.
a. "Agreement" means any agreement,
arrangement, alliance, understanding or joint venture,
whether written or oral.
b.
c. "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.
d.
e. "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.
f.
g. "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.
h.
i. "Business" means the Operating Systems Business or
the Applications Business.
j.
k. "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.
l.
m.
"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.
n.
o.
"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.
p.
q. "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.
r.
s. "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.
t.
u. "IHV" means an
independent hardware vendor that develops hardware to be
included in or used with a Personal Computer.
v.
w.
"Implementation of the Plan" means full completion of all of
the steps described in section 1.c.
x.
y.
"Intellectual Property" means copyrights, patents,
trademarks and trade secrets used by Microsoft or licensed
by Microsoft to third parties.
z.
aa. "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.
bb.
cc. "Manager"
means a Microsoft employee who is responsible for the direct
or indirect supervision of more than 100 other employees.
dd.
ee. "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.
ff.
gg. "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.
hh.
ii. "Middleware Product"
means
jj.
i. Internet browsers, e-mail client
software, multimedia viewing software, instant messaging
software, and voice recognition software, or
ii.
iii. software distributed by Microsoft that -
iv.
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.
3.
provides functionality similar to that provided by
Middleware offered by a competitor to Microsoft.
4.
kk. "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.
ll.
mm.
"OEM" means the manufacturer or assembler of a personal
computer.
nn.
oo. "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.
pp.
qq. "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.
rr.
ss. "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.
tt.
uu. "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.
vv.
ww. "Plaintiff" means the United
States or any of the plaintiff States in this action.
xx.
yy. "Plan" means the final plan of divestiture
approved by the Court.
zz.
aaa. "Platform Software"
means an Operating System or Middleware or a combination of
an Operating System and Middleware.
bbb.
bbb.
"Remaining Business" means whichever of the Operating
Systems Business and the Applications Businesses is not
transferred to a separate entity pursuant to the Plan.
ccc.
cccc. "Separated Business" means whichever of
the Operating Systems Business and the Applications
Businesses is transferred to a separate entity pursuant to
the Plan.
dddd.
ddddd. "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.
eeeee.
eeeeee. "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.
ffffff.
fffffff.
"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.
ggggggg.
_____________________
Thomas Penfield Jackson
U.S. District
Judge