The Justice Department today charged Microsoft with engaging in anticompetitive and exclusionary practices designed to maintain its monopoly in personal computer operating systems and to extend that monopoly to internet browsing software. Twenty state Attorneys General and the District of Columbia filed a similar action today.
“Consumers and computer manufacturers should have the right to choose the software they want installed on their personal computers,” said Attorney General Janet Reno. “We are acting to preserve competition and promote innovation in the computer software industry.”
“This action will protect innovation by ensuring that anyone who develops a software program will have a fair opportunity to compete in the marketplace,” said Joel I. Klein, Assistant Attorney General in charge of the Department’s Antitrust Division. “Inventors and investors cannot and will not develop and market innovative software programs if they know that Microsoft can use its Windows monopoly to block the distribution of their programs and to force consumers to buy Microsoft’s competing products.”
In its complaint, filed today in U.S. District Court in Washington, D.C., the Department charged that Microsoft engaged in a pattern of anticompetitive acts, including the following:
In May 1995, Microsoft executives attempted to persuade an internet browser software competitor–Netscape Communications Corporation–not to compete with Microsoft and to divide the browser market, with Microsoft becoming the sole supplier of browsers for use with Windows 95 operating systems and with Netscape becoming the sole supplier of browsers for non-Windows 95 operating systems. Netscape refused to participate.
Microsoft unlawfully required PC manufacturers to agree to license and install its browser, Internet Explorer, as a condition of obtaining licenses for the Windows 95 operating system.
Microsoft now intends to tie unlawfully its IE Internet browser software to its new Windows 98 operating system, the successor to Windows 95.
Microsoft continues to misuse its Windows operating system monopoly by requiring personal computer manufacturers to agree, as a condition of acquiring a license to the Windows operating system, to adopt a uniform “boot-up” or “first screen” sequence specified by Microsoft.
This sequence determines the screens that every user sees upon turning on a Windows PC. Microsoft’s exclusionary restrictions forbid, among other things, any changes by an OEM that would remove from the PC Microsoft’s Internet Explorer software or that would add to the PC a competing browser in any more prominent or visible way than the way Microsoft requires Internet Explorer to be presented.
Microsoft has entered into anticompetitive agreements
with virtually all of the nation’s largest and most popular On-
Line Service Providers and Internet Service Providers, firms
which provide the communications link between a subscriber’s PC
and the Internet.
These agreements leverage its operating system
monopoly by conditioning these Providers’ inclusion in Windows’
lists on their agreement to offer Microsoft’s Internet Explorer
browser primarily or exclusively through all of the channels
through which they distribute their services; not to promote or
even mention to any of their subscribers the existence of a
competing Internet browser; and to use on their own Internet
sites Microsoft proprietary standards and tools that make those
sites more effective when viewed through Internet Explorer than
when viewed through competing Internet browsers.
These agreements have foreclosed competing browsers from this major
channel of browser distribution. More than 30 percent of
Internet browser users have obtained their browsers from their
service providers.
Microsoft has entered into anticompetitive agreements
with Internet Content Providers (ICPs). Prominent “channel
buttons” advertising and providing direct Internet access to
select ICPs appear on the “Active Desktop” feature shipped with
the Windows operating system.
These agreements condition an
ICP’s placement on one of these buttons on the ICP’s agreement
not to pay or otherwise compensate a Microsoft Internet browser
competitor for similar placement on that browser; not to
advertise or even publicly mention its placement on a competing
browser; not to promote a competing browser in any other way; not
to allow a competing browser to highlight and promote the ICP’s
Internet content; and to design its Web sites using Microsoft-
specific, proprietary programming extensions so that those sites
are more effective when viewed with Internet Explorer than when
viewed through a competing browser.
Although Microsoft has sought to modify some of the
anticompetitive agreements with ISPs, OSPs and ICPs, the
modifications Microsoft has imposed (which condition
participation in Windows on the Providers agreeing to give parity
to Microsoft’s browser) are themselves unlawful.
The complaint also charges that Microsoft recognized that
the success of Netscape’s internet browser threatened Microsoft’s
Windows monopoly on PC operating systems. Netscape’s browser
presented such a threat because it was designed to run on several
different operating systems and afforded software developers the
opportunity to develop programs to run directly on the Netscape
browser. This would leave computer manufacturers and users with
a choice about which operating system to run on their PCs,
leading to more competition and lower prices for operating
systems.
This threat was described by Microsoft CEO Bill Gates in a
1995 warning to Microsoft executives:
“A new competitor “born” on the Internet is Netscape.
Their browser is dominant, with a 70% usage share,
allowing them to determine which network extensions
will catch on. They are pursuing a multi-platform
strategy where they move the key API [applications
programming interface] into the client to commoditize the
underlying operating system.”
Microsoft set out to eliminate this competitive threat and
to win at any cost what Microsoft described as “the browser war”
between Internet Explorer and Netscape’s Navigator browser, the
Department said.
Reno added, “The Internet is an immensely popular medium for
communication, commerce, and the information flow of the 21st
century. No firm should be permitted to use its monopoly power
to develop a chokehold on the browser software needed to access
the Internet.”
The Department is seeking preliminary relief to eliminate
provisions in Microsoft’s licensing and marketing contracts that
restrict the ability of computer manufacturers to choose which
browser to install on their machines. It also seeks to eliminate
provisions that limit the ability of Internet service, online
service and internet content providers to distribute and promote
competing browser software.
Klein stated that the preliminary relief being sought “will
not require Microsoft to redesign Windows 98. Our main focus in
the motion for preliminary injunction is not the code–it’s the
contracts.”
The Department today filed a motion seeking a preliminary
injunction that would:
— Require that if Microsoft insists on including its
browser on Windows 98, it must also include Netscape’s browser so
that consumers will have a real choice. Computer manufacturers
would have the option of deleting either browser. If Microsoft
does not want to include Netscape, it must unbundle its own
browser and let it compete on the merits.
— Require Microsoft to give computer manufacturers the
right to modify the initial bootup sequence, so that the
manufacturers will be able to offer consumers greater choices in
the products and services installed on their machines;
— Require Microsoft to give computer manufacturers
additional options for installing and removing browser software
on new computers; and
— Forbid Microsoft from enforcing contractual provisions
that condition participation by internet and online service
providers and internet content providers in the windows desktop
on their agreeing to limit their distribution and promotion of
competing browsers.
Microsoft’s own documents, quoted in the complaint filed
today, make clear that Microsoft executives did not believe that
Microsoft could win the browser war through competition on the
merits and instead had to use its Windows monopoly advantage to
tilt the playing field in its favor, the Department said. For
example:
Microsoft’s Christian Wildfeuer wrote on February 24,
1997: “It seems clear that it will be very hard to increase
browser market share on the merits of IE 4 alone. It will be
more important to leverage the OS asset to make people use IE
instead of Navigator” (emphasis added);
Microsoft Senior Vice President Allchin had similarly
written on December 20, 1996, that unless Microsoft were to
“leverage Windows . . . . I don’t understand how IE is going to
win . . . . Maybe being free helps us, but once people are used
to a product it is hard to change them . . . . My conclusion is
that we must leverage Windows more. Treating IE as just an add-
on to Windows which is cross-platform loses our biggest advantage
Windows market share. We should dedicate a cross group team
to come up with ways to leverage Windows technically more . . . .
We should think first about an integrated solution that is our
strength.”
On January 2, 1997, Allchin wrote concerning “IE and
Windows’ that Microsoft needed to begin “leveraging Windows from
a marketing perspective” if it was to defeat Netscape. Allchin
complained that without leveraging Windows from a marketing
standpoint: “We do not use our strength which is that we have
an installed base of Windows and we have a strong OEM shipment
channel for Windows.” Allchin emphasized: “I am convinced we
have to use Windows this is the one thing they don’t have . .
. . We have to be competitive with features, but we need
something more Windows integration.
If you agree that Windows
is a huge asset, then it follows quickly that we are not
investing sufficiently in finding ways to tie IE and Windows
together.” Using Microsoft’s code name, Memphis, for the next
version of Windows, Allchin concluded that, “Memphis must be a
simple upgrade, but most importantly it must be a killer on OEM
shipments so that Netscape never gets a chance on these systems.”
(Emphasis supplied).
On March 25, 1997, Microsoft’s Megan Bliss wrote
concerning Bill Gates Memphis Review that Microsoft’s “#1
strategic imperative” was “to get IE share,” that they had been
“stalled,” and that their “best hope is tying tight to Windows,
esp. on OEM machines.” She added, “That is, unless I’ve woken up
in an alternate state and now work for Netscape.”
On March 27, 1997, Microsoft’s Kumar Mehta, after
analyzing “how people get and use IE” concluded that “based on
all the IE research we have done . . . it is a mistake to release
Memphis without bundling IE with it.”
Microsoft concluded in late March 1997 that if Windows 98
and IE “are decoupled, then Navigator has a good chance of
winning” and that “if we take away IE from the O/S, most nav
users will never switch to us.”
As Microsoft senior executive Brad Chase recognized in an
April 21, 1997 memorandum, “Memphis is a key weapon in the IE
share battle.”
As a January 5, 1997 presentation to Microsoft CEO Bill
Gates had emphasized: “Integrate with Windows” was a way to
“Increase IE share”.
The Department filed its complaint and motion for a
preliminary injunction today after discussions over the weekend
with Microsoft ended without satisfying the Department’s
competitive concerns.
In addressing the scope of the complaint being filed today,
Klein stated, “We are filing this action now to address time-
sensitive aspects of the shipment of Windows 98, aspects that
could significantly harm competition. Our investigation of other
Microsoft practices is ongoing.”
The Department’s press release, complaint, and motion for a
preliminary injunction can be found at the following Internet
address: http://www.usdoj.gov/atr
After accessing the Division’s website, go to “Antitrust Cases”
and look
for U.S. v. Microsoft.
