FALL 2007

Computer Law

 
Course No.  9200 711 001
Th 6:30 - 9:30 p.m.
Room W-214
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2004, 2007   Jay Dratler, Jr.   For permission, see CMI.
 

Microsoft III (Section 2 Claims)


As our brief introduction suggested, antitrust and intellectual property are two sides of the same coin.  The old English Statute of Monopolies established their proper relationship: that of rule and exception.  In any free economy based upon robust competition in free markets, freedom to compete must be the general rule.  Intellectual property is a limited exception to that rule, designed for the limited purpose of encouraging innovation and creativity where they otherwise would not occur.  Even the effectiveness of the intellectual property laws themselves depends upon the general rule of free competition.  As the Supreme Court has said,
    "From their inception, the federal patent laws have embodied a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy. . . . The attractiveness of [the patent] bargain [limited monopoly in exchange of public disclosure of inventions], and its effectiveness in inducing creative effort and disclosure of the results of that effort, depend almost entirely on a backdrop of free competition in the exploitation of unpatented designs and innovations."
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, 151, 109 S.Ct. 971, 103 L.Ed.2d 118, 9 U.S.P.Q.2d (BNA) 1847 (1989).

Like any other property, intellectual property may be abused.  When its abuse adversely affects competition, antitrust offenses may result.  A monopolist in particular has the power to abuse its intellectual property, with potentially far-reaching effects on competition and the ability of smaller firms to compete and to innovate.  Microsoft III illustrates some of the myriad ways in which a monopolist may suppress competition by using otherwise valid intellectual property as a club to bludgeon competitors, intermediaries, and customers.

Microsoft III is the D.C. Circuit's 2001 decision in the federal government's massive antitrust action against the software giant.  Although involving difficult law and economic theory and exceedingly complex facts, the case is worthy of study for three reasons. First, it was the most recent of three decisions in the latter third of the twentieth century—all ultimately settled— in which the federal government sought to restore free competition in a vital national industry.  (The other two involved IBM and AT & T.)  Second, it is the first major government antitrust case involving the so-called "new economy," i.e., the software and Internet industries, as distinguished from traditional manufacturing.  At a fundamental level, Microsoft III raises the question whether, from an antitrust perspective, the "new economy" is really so new after all.

Finally, because of the economic importance of the industries involved—computers and software— Microsoft III implicates fundamental issues of national economic policy.   Will antitrust law continue to ensure that small and independent firms have the right to compete as it has in the past?  Will it continue to guarantee consumers a free choice between competing products and services?  These questions are no less important in the twenty-first century than they were in the twentieth.  The Supreme Court has said that "competition is our fundamental national economic policy." United States v. Philadelphia National Bank, 374 U.S. 321, 372, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).  Cases like Microsoft III will determine how well that policy works in the Third Millennium.

For four reasons, Microsoft III is a good case with which to begin abbreviated study of antitrust law relevant to the computer industry.  First, it provides an excellent introduction to the Section 2 offense of monopolizing a defined market, with all the nuance and complexity of the modern software industry.   Second, it introduces the offense of attempting to monopolize a defined market, also a Section 2 offense, and it illustrates judicial reluctance to impose antitrust sanctions when monopolization is not complete.   Third, it explores the concepts of market definition and market power, which are central not only to Section 2 claims, but to many Section 1 claims as well.

Finally, Microsoft III strengthens understanding of the nature and elements of the Section 1 tying offense, which can invoke either the per-se rule or the rule of reason.  This offense is of critical importance in our modern economy, in which the convergence of media and convergence of technologies dictates that firms compete—and attempt to exclude competition—by combining products and technologies together in marketable bundles.   In this regard, Microsoft III addresses to what extent a firm that has gained a legitimate monopoly in one product can extend the scope of that monopoly by integrating other products or additional functions into that product.  The following portions of the decision address the Section 2 claims; we will cover the Section 1 tying claim in the following class session.

There is no getting away from the fact that Microsoft III is a difficult case.  Everything about it is difficult.   The industry at issue is exceedingly complex, with many different, independent players at many levels.   Although the basic technological elements—Microsoft's "Windows" operating systems and Web browsers—are familiar to virtually everyone, how they interact technologically and economically, and how their design affects the multifarious players in the industry may not be.  The law is complex (and new to many students in this course), and aspects of how the D.C. Circuit applied it are controversial.  Finally, the economic theory addressed in the case is modern and highly sophisticated and not brilliantly illuminated in the court's opinion.  

The very complexity of the case, however, is itself worth of study.  For it raises two questions, both vital to the future of antitrust law in the Third Millennium, especially as applied to cutting-edge technologies.  First, might the very complexity of the law and theory allow clever lawyers, backed up by clever expert witnesses, to pull the wool over judges' eyes?  Second, does the confluence of complex technologies, complex law, and complex economic theory run the risk of outpacing the limits of human decision making, especially by generalists?  (For more on both of these issues, see the second Note at the end of the next class section.)


United States v. Microsoft Corp.

253 F.3d 34 (D.C. Cir. 2001)

Before: Edwards, Chief Judge, Williams, Ginsburg, Sentelle, Randolph, Rogers and Tatel, Circuit Judges.  

* * * [*45] * * *

Per Curiam: Microsoft Corporation appeals from judgments of the District Court finding the company in violation of §§ 1 and 2 of the Sherman Act and ordering various remedies.  

The action against Microsoft arose pursuant to a complaint filed by the United States and separate complaints filed by individual States.  The District Court determined that Microsoft had maintained a monopoly in the market for Intel compatible PC operating systems in violation of § 2; attempted to gain a monopoly in the market for internet browsers in violation of § 2; and illegally tied two purportedly separate products, Windows and Internet Explorer ("IE"), in violation of § 1. . . .   To remedy the Sherman Act violations, the District Court issued a Final Judgment requiring Microsoft to submit a proposed plan of divestiture, with the company to be split into an operating systems business and an applications business. . . .  The District Court's remedial order also contains a number of interim restrictions on Microsoft's conduct. . . .[*46]

Microsoft's appeal contests both the legal conclusions and the resulting remedial order.  There are three principal aspects of this appeal.  First, Microsoft challenges the District Court's legal conclusions as to all three alleged antitrust violations and also a number of the procedural and factual foundations on which they rest.  Second, Microsoft argues that the remedial order must be set aside, because the District Court failed to afford the company an evidentiary hearing on disputed facts and, also, because the substantive provisions of the order are flawed.  Finally, Microsoft asserts that the trial judge committed ethical violations by engaging in impermissible ex parte contacts and making inappropriate public comments on the merits of the case while it was pending.  Microsoft argues that these ethical violations compromised the District Judge's appearance of impartiality, thereby necessitating his disqualification and vacatur of his Findings of Fact, Conclusions of Law, and Final Judgment.  

* * * [W]e find that some but not all of Microsoft's liability challenges have merit.  Accordingly, we affirm in part and reverse in part the District Court's judgment that Microsoft violated § 2 of the Sherman Act by employing anticompetitive means to maintain a monopoly in the operating system market; we reverse the District Court's determination that Microsoft violated § 2 of the Sherman Act by illegally attempting to monopolize the internet browser market; and we remand the District Court's finding that Microsoft violated § 1 of the Sherman Act by unlawfully tying its browser to its operating system. . . .

* * *

We vacate in full the Final Judgment embodying the remedial order and remand the case to a [*47] different trial judge for further proceedings consistent with this opinion.


I. INTRODUCTION

A.  Background

In July 1994, officials at the Department of Justice ("DOJ"), on behalf of the United States, filed suit against Microsoft, charging the company with, among other things, unlawfully maintaining a monopoly in the operating system market through anticompetitive terms in its licensing and software developer agreements.  The parties subsequently entered into a consent decree, thus avoiding a trial on the merits. See United States v. Microsoft Corp., 312 U.S. App. D.C. 378, 56 F.3d 1448 (D.C. Cir. 1995) ("Microsoft I").  Three years later, the Justice Department filed a civil contempt action against Microsoft for allegedly violating one of the decree's provisions.  On appeal from a grant of a preliminary injunction, this court held that Microsoft's technological bundling of IE 3.0 and 4.0 with Windows 95 did not violate the relevant provision of the consent decree. United States v. Microsoft Corp., 331 U.S. App. D.C. 121, 147 F.3d 935 (D.C. Cir. 1998) ("Microsoft II").  We expressly reserved the question whether such bundling might independently violate §§ 1 or 2 of the Sherman Act. . . .

On May 18, 1998, shortly before issuance of the Microsoft II decision, the United States and a group of State plaintiffs filed separate (and soon thereafter consolidated) complaints, asserting antitrust violations by Microsoft and seeking preliminary and permanent injunctions against the company's allegedly unlawful conduct. . . .  Relying almost exclusively on Microsoft's varied efforts to unseat Netscape Navigator as the preeminent internet browser, plaintiffs charged four distinct violations of the Sherman Act . . . .* * *

The District Court scheduled the case on a "fast track." * * *

After a 76-day bench trial, the District Court issued its Findings of Fact. United States v. Microsoft Corp., 84 F. Supp. 2d 9 (D.D.C. 1999) ("Findings of Fact"). * * * [T]he District Court referred the case to mediation to afford the parties an opportunity to settle their differences. The [*48] Honorable Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit, was appointed to serve as mediator.  The parties concurred in the referral to mediation and in the choice of mediator.  

Mediation failed after nearly four months of settlement talks between the parties.  On April 3, 2000, with the parties' briefs having been submitted and considered, the District Court issued its conclusions of law [holding Microsoft liable on all claims except for attempting to monopolize].

* * *

B.  Overview

Before turning to the merits of Microsoft's various arguments, we pause to reflect briefly on two matters of note, one practical and one theoretical.  

The practical matter relates to the temporal dimension of this case.  The litigation timeline in this case is hardly problematic.  Indeed, it is noteworthy that a case of this magnitude and complexity has proceeded from the filing of complaints through trial to appellate decision in a mere three years. See, e.g., Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1155 (1st Cir. 1994) (six years from filing of complaint to appellate decision); Transamerica Computer Co., Inc. v. IBM, 698 F.2d 1377, 1381 (9th Cir. 1983) (over four years from start of trial to appellate decision); United States v. United Shoe Mach. Corp., 110 F. Supp. 295, 298 (D. Mass. 1953) (over five years from filing of complaint to trial court decision). [*49]

What is somewhat problematic, however, is that just over six years have passed since Microsoft engaged in the first conduct plaintiffs allege to be anticompetitive.  As the record in this case indicates, six years seems like an eternity in the computer industry.  By the time a court can assess liability, firms, products, and the marketplace are likely to have changed dramatically.  This, in turn, threatens enormous practical difficulties for courts considering the appropriate measure of relief in equitable enforcement actions, both in crafting injunctive remedies in the first instance and reviewing those remedies in the second.  Conduct remedies may be unavailing in such cases, because innovation to a large degree has already rendered the anticompetitive conduct obsolete (although by no means harmless).  And broader structural remedies present their own set of problems, including how a court goes about restoring competition to a dramatically changed, and constantly changing, marketplace.  That is just one reason why we find the District Court's refusal in the present case to hold an evidentiary hearing on remedies—to update and flesh out the available information before seriously entertaining the possibility of dramatic structural relief—so problematic.

We do not mean to say that enforcement actions will no longer play an important role in curbing infringements of the antitrust laws in technologically dynamic markets, nor do we assume this in assessing the merits of this case.  Even in those cases where forward-looking remedies appear limited, the Government will continue to have an interest in defining the contours of the antitrust laws so that law-abiding firms will have a clear sense of what is permissible and what is not.  And the threat of private damage actions will remain to deter those firms inclined to test the limits of the law.  

The second matter of note is more theoretical in nature.  We decide this case against a backdrop of significant debate amongst academics and practitioners over the extent to which "old economy" § 2 monopolization doctrines should apply to firms competing in dynamic technological markets characterized by network effects.  In markets characterized by network effects, one product or standard tends towards dominance, because "the utility that a user derives from consumption of the good increases with the number of other agents consuming the good."  Michael L. Katz & Carl Shapiro, Network Externalities, Competition, and Compatibility, 75 AM. ECON. REV. 424, 424 (1985).  For example, "an individual consumer's demand to use (and hence her benefit from) the telephone network . . . increases with the number of other users on the network whom she can call or from whom she can receive calls."  Howard A. Shelanski & J. Gregory Sidak, Antitrust Divestiture in Network Industries, 68 U. CHI. L. REV. 1, 8 (2001).  Once a product or standard achieves wide acceptance, it becomes more or less entrenched. Competition in such industries is "for the field" rather than "within the field." See Harold Demsetz, Why Regulate Utilities?, 11 J.L. & ECON. 55, 57 & n.7 (1968) (emphasis omitted).  

In technologically dynamic markets, however, such entrenchment may be temporary, because innovation may alter the field altogether.  See JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 81-90 (Harper Perennial 1976) (1942).  Rapid technological change leads to markets in which "firms compete through innovation for temporary market dominance, from which they may be displaced by the next wave of product advancements."  Shelanski & Sidak, at 11-12 (discussing Schumpeterian competition, which proceeds "sequentially over time rather than [*50] simultaneously across a market").  Microsoft argues that the operating system market is just such a market.  

Whether or not Microsoft's characterization of the operating system market is correct does not appreciably alter our mission in assessing the alleged antitrust violations in the present case.  As an initial matter, we note that there is no consensus among commentators on the question of whether, and to what extent, current monopolization doctrine should be amended to account for competition in technologically dynamic markets characterized by network effects. . . .  Indeed, there is some suggestion that the economic consequences of network effects and technological dynamism act to offset one another, thereby making it difficult to formulate categorical antitrust rules absent a particularized analysis of a given market. . . .  

Moreover, it should be clear that Microsoft makes no claim that anticompetitive conduct should be assessed differently in technologically dynamic markets.  It claims only that the measure of monopoly power should be different.  For reasons fully discussed below, we reject Microsoft's monopoly power argument.

With this backdrop in mind, we turn to the specific challenges raised in Microsoft's appeal.


II.  MONOPOLIZATION

Section 2 of the Sherman Act makes it unlawful for a firm to "monopolize."  15 U.S.C. § 2.  The offense of monopolization has two elements: "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident."  United States v. Grinnell Corp., 384 U.S. 563, 570-71, 16 L.Ed.2d 778, 86 S.Ct. 1698 (1966).  The District Court applied this test and found that Microsoft possesses monopoly power in the market for Intel-compatible PC operating systems.  Focusing primarily on Microsoft's efforts to suppress Netscape Navigator's threat to its operating system monopoly, the court also found that Microsoft maintained its power not through competition on the merits, but through unlawful means.  Microsoft challenges both conclusions.  We defer to the District Court's findings of fact, setting them aside only if clearly erroneous.  FED R. CIV. P. 52(a).  We review legal questions de novo. . . . [*51] * * *


A.  Monopoly Power

While merely possessing monopoly power is not itself an antitrust violation, . . .  it is a necessary element of a monopolization charge . . .   The Supreme Court defines monopoly power as "the power to control prices or exclude competition." United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 100 L.Ed. 1264, 76 S.Ct. 994 (1956).  More precisely, a firm is a monopolist if it can profitably raise prices substantially above the competitive level. . . .  Where evidence indicates that a firm has in fact profitably done so, the existence of monopoly power is clear. See Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995); see also FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460-61, 90 L. Ed. 2d 445, 106 S. Ct. 2009 (1986) (using direct proof to show market power in Sherman Act § 1 unreasonable restraint of trade action).  Because such direct proof is only rarely available, courts more typically examine market structure in search of circumstantial evidence of monopoly power. . . .   Under this structural approach, monopoly power may be inferred from a firm's possession of a dominant share of a relevant market that is protected by entry barriers. See Rebel Oil, 51 F.3d at 1434. "Entry barriers" are factors (such as certain regulatory requirements) that prevent new rivals from timely responding to an increase in price above the competitive level. . . .

The District Court considered these structural factors and concluded that Microsoft possesses monopoly power in a relevant market.  Defining the market as Intel-compatible PC operating systems, the District Court found that Microsoft has a greater than 95% share.   It also found the company's market position protected by a substantial entry barrier. . . .

* * *

1.  Market Structure

a.  Market definition

"Because the ability of consumers to turn to other suppliers restrains a firm from raising prices above the competitive level," Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 253 U.S. App. D.C. 142, 792 F.2d 210, 218 [*52](D.C. Cir. 1986), the relevant market must include all products "reasonably interchangeable by consumers for the same purposes." du Pont, 351 U.S. at 395.  In this case, the District Court defined the market as "the licensing of all Intel-compatible PC operating systems worldwide," finding that there are "currently no products—and . . . there are not likely to be any in the near future—that a significant percentage of computer users worldwide could substitute for [these operating systems] without incurring substantial costs." . . .   Calling this market definition "far too narrow," Microsoft argues that the District Court improperly excluded three types of products: non-Intel compatible operating systems (primarily Apple's Macintosh operating system, Mac OS), operating systems for non-PC devices (such as handheld computers and portal websites), and "middleware" products, which are not operating systems at all.  

We begin with Mac OS.  Microsoft's argument that Mac OS should have been included in the relevant market suffers from a flaw that infects many of the company's monopoly power claims: the company fails to challenge the District Court's factual findings, or to argue that these findings do not support the court's conclusions.  The District Court found that consumers would not switch from Windows to Mac OS in response to a substantial price increase because of the costs of acquiring the new hardware needed to run Mac OS (an Apple computer and peripherals) and compatible software applications, as well as because of the effort involved in learning the new system and transferring files to its format. . . .  The court also found the Apple system less appealing to consumers because it costs considerably more and supports fewer applications. * * *  Microsoft neither points to evidence contradicting the District Court's findings nor alleges that supporting record evidence is insufficient. . . .

Microsoft's challenge to the District Court's exclusion of non-PC based competitors, such as information appliances (handheld devices, etc.) and portal websites that host server based software applications, suffers from the same defect: the company fails to challenge the District Court's key factual findings.  In particular, the District Court found that because information appliances fall far short of performing all of the functions of a PC, most consumers will buy them only as a supplement to their PCs. . . .  The District Court also found that portal websites do not presently host enough applications to induce consumers to switch, nor are they likely to do so in the near future. . . .  Again, because Microsoft does not argue that the District Court's findings do not support its conclusion that information appliances and portal websites are outside the relevant market, we adhere to that conclusion. [*53]

This brings us to Microsoft's main challenge to the District Court's market definition: the exclusion of middleware.  Because of the importance of middleware to this case, we pause to explain what it is and how it relates to the issue before us.  

Operating systems perform many functions, including allocating computer memory and controlling peripherals such as printers and keyboards. . . .  Operating systems also function as platforms for software applications.  They do this by "exposing"—i.e., making available to software developers—routines or protocols that perform certain widely-used functions.  These are known as Application Programming Interfaces, or "APIs." . . .  For example, Windows contains an API that enables users to draw a box on the screen.. . .  Software developers wishing to include that function in an application need not duplicate it in their own code.  Instead, they can "call"—i.e., use—the Windows API. . . .   Windows contains thousands of APIs, controlling everything from data storage to font display.. . .  

Every operating system has different APIs.  Accordingly, a developer who writes an application for one operating system and wishes to sell the application to users of another must modify, or "port," the application to the second operating system.. . .  This process is both time consuming and expensive.

"Middleware" refers to software products that expose their own APIs. . . .   Because of this, a middleware product written for Windows could take over some or all of Windows's valuable platform functions—that is, developers might begin to rely upon APIs exposed by the middleware for basic routines rather than relying upon the API set included in Windows.  If middleware were written for multiple operating systems, its impact could be even greater.  The more developers could rely upon APIs exposed by such middleware, the less expensive porting to different operating systems would be.  Ultimately, if developers could write applications relying exclusively on APIs exposed by middleware, their applications would run on any operating system on which the middleware was also present.. . .  Netscape Navigator and Java—both at issue in this case—are middleware products written for multiple operating systems. . . .  

Microsoft argues that, because middleware could usurp the operating system's platform function and might eventually take over other operating system functions (for instance, by controlling peripherals), the District Court erred in excluding Navigator and Java from the relevant market.  The District Court found, however, that neither Navigator, Java, nor any other middleware product could now, or would soon, expose enough APIs to serve as a platform for popular applications, much less take over all operating system functions. . . .   Again, Microsoft fails to challenge these findings, instead simply asserting middleware's "potential" as a competitor. . . The test of reasonable interchangeability, however, required the District Court to consider only substitutes that constrain pricing in the reasonably foreseeable [*54] future, and only products that can enter the market in a relatively short time can perform this function. * * *  Whatever middleware's ultimate potential, the District Court found that consumers could not now abandon their operating systems and switch to middleware in response to a sustained price for Windows above the competitive level. . . .  Nor is middleware likely to overtake the operating system as the primary platform for software development any time in the near future.

Alternatively, Microsoft argues that the District Court should not have excluded middleware from the relevant market because the primary focus of the plaintiffs' § 2 charge is on Microsoft's attempts to suppress middleware's threat to its operating system monopoly.  According to Microsoft, it is "contradictory," to define the relevant market to exclude the "very competitive threats that gave rise" to the action. . . .  The purported contradiction lies between plaintiffs' § 2 theory, under which Microsoft preserved its monopoly against middleware technologies that threatened to become viable substitutes for Windows, and its theory of the relevant market, under which middleware is not presently a viable substitute for Windows.  Because middleware's threat is only nascent, however, no contradiction exists.  Nothing in § 2 of the Sherman Act limits its prohibition to actions taken against threats that are already well-developed enough to serve as present substitutes.   Because market definition is meant to identify products "reasonably interchangeable by consumers," du Pont, 351 U.S. at 395, and because middleware is not now interchangeable with Windows, the District Court had good reason for excluding middleware from the relevant market.  

b. Market power

Having thus properly defined the relevant market, the District Court found that Windows accounts for a greater than 95% share. . . .  The court also found that even if Mac OS were included, Microsoft's share would exceed 80%. . . .  Microsoft challenges neither finding, nor does it argue that such a market share is not predominant. Cf.  Grinnell, 384 U.S. at 571 (87% is predominant); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481, 119 L.Ed.2d 265, 112 S.Ct. 2072 (1992) (80%); du Pont, 351 U.S. at 379, 391 (75%).  

Instead, Microsoft claims that even a predominant market share does not by itself indicate monopoly power.  Although the "existence of [monopoly] power ordinarily may be inferred from the predominant share of the market," Grinnell, 384 U.S. at 571, we agree with Microsoft that because of the possibility of competition from new entrants, . . .  looking to current market share alone can be "misleading." Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir. 1980) . . . .   In this case, however, the District Court was not misled.  Considering [*55] the possibility of new rivals, the court focused not only on Microsoft's present market share, but also on the structural barrier that protects the company's future position. . . .  That barrier—the "applications barrier to entry"—stems from two characteristics of the software market: (1) most consumers prefer operating systems for which a large number of applications have already been written; and (2) most developers prefer to write for operating systems that already have a substantial consumer base. . . .  This "chicken-and-egg" situation ensures that applications will continue to be written for the already dominant Windows, which in turn ensures that consumers will continue to prefer it over other operating systems.

Challenging the existence of the applications barrier to entry, Microsoft observes that software developers do write applications for other operating systems, pointing out that at its peak IBM's OS/2 supported approximately 2,500 applications. . . .  This misses the point.  That some developers write applications for other operating systems is not at all inconsistent with the finding that the applications barrier to entry discourages many from writing for these less popular platforms.  Indeed, the District Court found that IBM's difficulty in attracting a larger number of software developers to write for its platform seriously impeded OS/2's success.

Microsoft does not dispute that Windows supports many more applications than any other operating system.  It argues instead that "it defies common sense" to suggest that an operating system must support as many applications as Windows does (more than 70,000, according to the District Court) to be competitive. . . .  Consumers, Microsoft points out, can only use a very small percentage of these applications.  As the District Court explained, however, the applications barrier to entry gives consumers reason to prefer the dominant operating system even if they have no need to use all applications written for it:
    "The consumer wants an operating system that runs not only types of applications that he knows he will want to use, but also those types in which he might develop an interest later.  Also, the consumer knows that if he chooses an operating system with enough demand to support multiple applications in each product category, he will be less likely to find himself straitened later by having to use an application whose features disappoint him.  Finally, the average user knows that, generally speaking, applications improve through successive versions.  He thus wants an operating system for which successive generations of his favorite applications will be released—promptly at that.  The fact that a vastly larger number of applications are written for Windows than for other PC operating systems attracts consumers to Windows, because it reassures them that their interests will be met as long as they use Microsoft's product."  
Findings of Fact ¶ 37.  Thus, despite the limited success of its rivals, Microsoft benefits from the applications barrier to entry.  

Of course, were middleware to succeed, it would erode the applications barrier to entry.  Because applications written for multiple operating systems could run on any operating system on which the middleware product was present with little, if any, porting, the operating system market would become competitive. . . .  But as the District Court found, middleware will not expose a sufficient number of APIs to erode the applications barrier to entry in the foreseeable future. [*56]

Microsoft next argues that the applications barrier to entry is not an entry barrier at all, but a reflection of Windows' popularity.  It is certainly true that Windows may have gained its initial dominance in the operating system market competitively—through superior foresight or quality.  But this case is not about Microsoft's initial acquisition of monopoly power.  It is about Microsoft's efforts to maintain this position through means other than competition on the merits.  Because the applications barrier to entry protects a dominant operating system irrespective of quality, it gives Microsoft power to stave off even superior new rivals.  The barrier is thus a characteristic of the operating system market, not of Microsoft's popularity, or, as asserted by a Microsoft witness, the company's efficiency.. . .  

Finally, Microsoft argues that the District Court should not have considered the applications barrier to entry because it reflects not a cost borne disproportionately by new entrants, but one borne by all participants in the operating system market.  According to Microsoft, it had to make major investments to convince software developers to write for its new operating system, and it continues to "evangelize" the Windows platform today.  Whether costs borne by all market participants should be considered entry barriers is the subject of much debate. . . .  We need not resolve this issue, however, for even under the more narrow definition it is clear that there are barriers.  When Microsoft entered the operating system market with MS-DOS and the first version of Windows, it did not confront a dominant rival operating system with as massive an installed base and as vast an existing array of applications as the Windows operating systems have since enjoyed. . . .  Moreover, when Microsoft introduced Windows 95 and 98, it was able to bypass the applications barrier to entry that protected the incumbent Windows by including APIs from the earlier version in the new operating systems.  This made porting existing Windows applications to the new version of Windows much less costly than porting them to the operating systems of other entrants who could not freely include APIs from the incumbent Windows with their own.

2.  Direct Proof

* * *
    [The court rejected Microsoft's argument that, because the computer-software industry is particularly "dynamic," Section 2 claims addressing that industry should require direct proof of market power, i.e., power to sustain price increases despite competition.  Microsoft argued that its large investments in research and development and the low prices for its operating systems demonstrated an absence of market power.]
* * *

Even if we were to require direct proof, moreover, Microsoft's behavior may well be sufficient to show the existence of monopoly power.  Certainly, none of the conduct Microsoft points to—its investment in R&D and the relatively low price of Windows—is inconsistent with the possession of such power.. . .  The R&D expenditures Microsoft points to are not simply for Windows, but for its entire company, which most likely does not possess a monopoly for all of its products.  Moreover, because innovation can increase an already dominant market share and further delay the emergence of competition, even monopolists have reason to invest in R&D. . . .  Microsoft's pricing behavior is similarly equivocal.  The company claims only that it never charged the short-term profit-maximizing price for Windows.  Faced with conflicting expert testimony, the District Court found that it could not accurately determine what this price would be.. . .  In any event, the court found, a price lower than the short-term profit-maximizing price is not inconsistent with possession or improper use of monopoly power. . . .  Cf.  Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 274 (2d Cir. 1979) ("If monopoly power has been acquired or maintained through improper means, the fact that the power has not been used to extract [a monopoly price] provides no succor to the monopolist.").

* * *

More telling, the District Court found that some aspects of Microsoft's behavior are difficult to explain unless Windows is a monopoly product.  For instance, according [*58] to the District Court, the company set the price of Windows without considering rivals' prices, . . .  something a firm without a monopoly would have been unable to do.  The District Court also found that Microsoft's pattern of exclusionary conduct could only be rational "if the firm knew that it possessed monopoly power." . . .   It is to that conduct that we now turn.  


B.  Anticompetitive Conduct

As discussed above, having a monopoly does not by itself violate § 2.  A firm violates § 2 only when it acquires or maintains, or attempts to acquire or maintain, a monopoly by engaging in exclusionary conduct "as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Grinnell, 384 U.S. at 571; see also United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945) (Hand, J.) ("The successful competitor, having been urged to compete, must not be turned upon when he wins.").  

In this case, after concluding that Microsoft had monopoly power, the District Court held that Microsoft had violated § 2 by engaging in a variety of exclusionary acts (not including predatory pricing), to maintain its monopoly by preventing the effective distribution and use of products that might threaten that monopoly.  Specifically, the District Court held Microsoft liable for: (1) the way in which it integrated IE into Windows; (2) its various dealings with Original Equipment Manufacturers ("OEMs"), Internet Access Providers ("IAPs"), Internet Content Providers ("ICPs"), Independent Software Vendors ("ISVs"), and Apple Computer; (3) its efforts to contain and to subvert Java technologies; and (4) its course of conduct as a whole.  Upon appeal, Microsoft argues that it did not engage in any exclusionary conduct.  

Whether any particular act of a monopolist is exclusionary, rather than merely a form of vigorous competition, can be difficult to discern: the means of illicit exclusion, like the means of legitimate competition, are myriad.  The challenge for an antitrust court lies in stating a general rule for distinguishing between exclusionary acts, which reduce social welfare, and competitive acts, which increase it.

From a century of case law on monopolization under § 2, however, several principles do emerge.  First, to be condemned as exclusionary, a monopolist's act must have an "anticompetitive effect."  That is, it must harm the competitive process and thereby harm consumers.  In contrast, harm to one or more competitors will not suffice. "The [Sherman Act] directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 122 L.Ed.2d 247, 113 S.Ct. 884 (1993); see also Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225, 125 L.Ed.2d 168, 113 S.Ct. 2578 (1993) ("Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws. . . .").  

Second, the plaintiff, on whom the burden of proof of course rests, . . . must demonstrate that the monopolist's conduct indeed has the requisite anticompetitive [*59] effect.. . .  * * *

Third, if a plaintiff successfully establishes a prima facie case under § 2 by demonstrating anticompetitive effect, then the monopolist may proffer a "procompetitive justification" for its conduct.  See Eastman Kodak, 504 U.S. at 483.  If the monopolist asserts a procompetitive justification—a nonpretextual claim that its conduct is indeed a form of competition on the merits because it involves, for example, greater efficiency or enhanced consumer appeal—then the burden shifts back to the plaintiff to rebut that claim. . . .

Fourth, if the monopolist's procompetitive justification stands unrebutted, then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit. * * *

Finally, in considering whether the monopolist's conduct on balance harms competition and is therefore condemned as exclusionary for purposes of § 2, our focus is upon the effect of that conduct, not upon the intent behind it.  Evidence of the intent behind the conduct of a monopolist is relevant only to the extent it helps us understand the likely effect of the monopolist's conduct. See, e.g., Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 62 L.Ed. 683, 38 S.Ct. 242 (1918) ("knowledge of intent may help the court to interpret facts and to predict consequences") . . .

With these principles in mind, we now consider Microsoft's objections to the District Court's holding that Microsoft violated § 2 of the Sherman Act in a variety of ways.

1.  Licenses Issued to Original Equipment Manufacturers

The District Court condemned a number of provisions in Microsoft's agreements licensing Windows to OEMs, because it [*60] found that Microsoft's imposition of those provisions (like many of Microsoft's other actions at issue in this case) serves to reduce usage share of Netscape's browser and, hence, protect Microsoft's operating system monopoly.  The reason market share in the browser market affects market power in the operating system market is complex, and warrants some explanation.  

Browser usage share is important because a browser (or any middleware product, for that matter) must have a critical mass of users in order to attract software developers to write applications relying upon the APIs it exposes, and away from the APIs exposed by Windows.  Applications written to a particular browser's APIs, however, would run on any computer with that browser, regardless of the underlying operating system.  "The overwhelming majority of consumers will only use a PC operating system for which there already exists a large and varied set of . . . applications, and for which it seems relatively certain that new types of applications and new versions of existing applications will continue to be marketed . . .."  Findings of Fact ¶ 30.  If a consumer could have access to the applications he desired—regardless of the operating system he uses—simply by installing a particular browser on his computer, then he would no longer feel compelled to select Windows in order to have access to those applications; he could select an operating system other than Windows based solely upon its quality and price.  In other words, the market for operating systems would be competitive.  

Therefore, Microsoft's efforts to gain market share in one market (browsers) served to meet the threat to Microsoft's monopoly in another market (operating systems) by keeping rival browsers from gaining the critical mass of users necessary to attract developer attention away from Windows as the platform for software development. * * *

In evaluating the restrictions in Microsoft's agreements licensing Windows to OEMs, we first consider whether plaintiffs have made out a prima facie case by demonstrating that the restrictions have an anticompetitive effect.  In the next subsection, we conclude that plaintiffs have met this burden as to all the restrictions.  We then consider Microsoft's proffered justifications for the restrictions and, for the most part, hold those justifications insufficient.  

a.  Anticompetitive effect of the license restrictions

The restrictions Microsoft places upon Original Equipment are of particular importance in determining browser usage share because having an OEM pre-install a browser on a computer is one of the two most cost-effective methods by far of distributing browsing software.  (The other is bundling the browser with internet access software distributed by an IAP.)  Findings of Fact ¶ 145.  The District Court found that the restrictions Microsoft imposed in licensing Windows to OEMs prevented many OEMs from distributing browsers other than IE. [*61] . . .  In particular, the District Court condemned the license provisions prohibiting the OEMs from: (1) removing any desktop icons, folders, or "Start" menu entries; (2) altering the initial boot sequence; and (3) otherwise altering the appearance of the Windows desktop. . .

The District Court concluded that the first license restriction—the prohibition upon the removal of desktop icons, folders, and Start menu entries—thwarts the distribution of a rival browser by preventing OEMs from removing visible means of user access to IE.  The OEMs cannot practically install a second browser in addition to IE, the court found, in part because "pre-installing more than one product in a given category . . . can significantly increase an OEM's support costs, for the redundancy can lead to confusion among novice users." . . .  That is, a certain number of novice computer users, seeing two browser icons, will wonder which to use when and will call the OEM's support line.  Support calls are extremely expensive and, in the highly competitive original equipment market, firms have a strong incentive to minimize costs.

* * *

As noted above, the OEM channel is one of the two primary channels for distribution of browsers.  By preventing OEMs from removing visible means of user access to IE, the license restriction prevents many OEMs from pre-installing a rival browser and, therefore, protects Microsoft's monopoly from the competition that middleware might otherwise present.  Therefore, we conclude that the license restriction at issue is anticompetitive. . . .

The second license provision at issue prohibits OEMs from modifying the initial boot sequence—the process that occurs the first time a consumer turns on the computer.  Prior to the imposition of that restriction, "among the programs that many OEMs inserted into the boot sequence were Internet sign-up procedures that encouraged users to choose from a list of IAPs assembled by the OEM." Findings of Fact ¶ 210.  Microsoft's prohibition on any alteration of the boot sequence thus [*62] prevents OEMs from using that process to promote the services of IAPs, many of which—at least at the time Microsoft imposed the restriction—used Navigator rather than IE in their internet access software.. . .  Microsoft does not deny that the prohibition on modifying the boot sequence has the effect of decreasing competition against IE by preventing OEMs from promoting rivals' browsers.  Because this prohibition has a substantial effect in protecting Microsoft's market power, and does so through a means other than competition on the merits, it is anticompetitive. . . .

Finally, Microsoft imposes several additional provisions that, like the prohibition on removal of icons, prevent OEMs from making various alterations to the desktop: Microsoft prohibits OEMs from causing any user interface other than the Windows desktop to launch automatically, from adding icons or folders different in size or shape from those supplied by Microsoft, and from using the "Active Desktop" feature to promote third-party brands.  These restrictions impose significant costs upon the OEMs; prior to Microsoft's prohibiting the practice, many OEMs would change the appearance of the desktop in ways they found beneficial.  See, e.g., Findings of Fact ¶ 214; GX 309, reprinted in 22 J.A. at 14551 (March 1997 letter from Hewlett-Packard to Microsoft: "We are responsible for the cost of technical support of our customers, including the 33% of calls we get related to the lack of quality or confusion generated by your product. . . .  We must have more ability to decide how our system is presented to our end users.  If we had a choice of another supplier, based on your actions in this area, I assure you [that you] would not be our supplier of choice.").  

The dissatisfaction of the OEM customers does not, of course, mean the restrictions are anticompetitive.  The anticompetitive effect of the license restrictions is, as Microsoft itself recognizes, that OEMs are not able to promote rival browsers, which keeps developers focused upon the APIs in Windows.  Findings of Fact ¶ 212 (quoting Microsoft's Gates as writing, "winning Internet browser share is a very very important goal for us," and emphasizing the need to prevent OEMs from promoting both rival browsers and IAPs that might use rivals' browsers) . . .   This kind of promotion is not a zero-sum game; but for the restrictions in their licenses to use Windows, OEMs could promote multiple IAPs and browsers.  By preventing the OEMs from doing so, this type of license restriction, like the first two restrictions, is anticompetitive: Microsoft reduced rival browsers' usage share not by improving its own product but, rather, by preventing OEMs from taking actions that could increase rivals' share of usage.  

b.  Microsoft's justifications for the license restrictions

Microsoft argues that the license restrictions are legally justified because, in imposing them, Microsoft is simply "exercising its rights as the holder of valid copyrights." . . . [*63] . . .  Microsoft also argues that the licenses "do not unduly restrict the opportunities of Netscape to distribute Navigator in any event."

Microsoft's primary copyright argument borders upon the frivolous.  The company claims an absolute and unfettered right to use its intellectual property as it wishes: "If intellectual property rights have been lawfully acquired," it says, then "their subsequent exercise cannot give rise to antitrust liability." . . .  That is no more correct than the proposition that use of one's personal property, such as a baseball bat, cannot give rise to tort liability.  As the Federal Circuit succinctly stated: "Intellectual property rights do not confer a privilege to violate the antitrust laws."  In re Indep. Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1325 (Fed. Cir. 2000).  

* * *
    [Microsoft next argued that its copyright gave it the right to prevent unauthorized alteration of its software.]
The only license restriction Microsoft seriously defends as necessary to prevent a "substantial alteration" of its copyrighted work is the prohibition on OEMs automatically launching a substitute user interface upon completion of the boot process.  See Findings of Fact ¶ 211 ("[A]few large OEMs developed programs that ran automatically at the conclusion of a new PC system's first boot sequence.  These programs replaced the Windows desktop either with a user interface designed by the OEM or with Navigator's user interface.").  We agree that a shell that automatically prevents the Windows desktop from ever being seen by the user is a drastic alteration of Microsoft's copyrighted work, and outweighs the marginal anticompetitive effect of prohibiting the OEMs from substituting a different interface automatically upon completion of the initial boot process.  We therefore hold that this particular restriction is not an exclusionary practice that violates § 2 of the Sherman Act.  

In a second variation upon its copyright defense, Microsoft argues that the license restrictions merely prevent OEMs from taking actions that would reduce substantially the value of Microsoft's copyrighted work: that is, Microsoft claims each license restriction in question is necessary to prevent OEMs from so altering Windows as to undermine "the principal value of Windows as a stable and consistent platform that supports a broad range of applications and that is familiar to users."   Microsoft, however, never substantiates this claim, and, because an OEM's altering [*64] the appearance of the desktop or promoting programs in the boot sequence does not affect the code already in the product, the practice does not self-evidently affect either the "stability" or the "consistency" of the platform. . . . * * *  Therefore, we conclude Microsoft has not shown that the OEMs' liberality reduces the value of Windows except in the sense that their promotion of rival browsers undermines Microsoft's monopoly—and that is not a permissible justification for the license restrictions.  

* * *

In sum, we hold that with the exception of the one restriction prohibiting automatically launched alternative interfaces, all the OEM license restrictions at issue represent uses of Microsoft's market power to protect its monopoly, unredeemed by any legitimate justification.  The restrictions therefore violate § 2 of the Sherman Act.


2.  Integration of IE and Windows

Although Microsoft's license restrictions have a significant effect in closing rival browsers out of one of the two primary channels of distribution, the District Court found that "Microsoft's executives believed . . . its contractual restrictions placed on OEMs would not be sufficient in themselves to reverse the direction of Navigator's usage share.  Consequently, in late 1995 or early 1996, Microsoft set out to bind [IE] more tightly to Windows 95 as a technical matter." Findings of Fact ¶ 160.  

Technologically binding IE to Windows, the District Court found, both prevented OEMs from pre-installing other browsers and deterred consumers from using them.  In particular, having the IE software code as an irremovable part of Windows meant that pre-installing a second browser would "increase an OEM's product testing costs," because an OEM must test and train its support staff to answer calls related to every software product preinstalled on the machine; moreover, pre-installing a browser in addition to IE would to many OEMs be "a questionable use of the scarce and valuable space on a PC's hard drive."  Id. ¶ 159.  

* * * [*65] * * *

a.  Anticompetitive effect of integration

As a general rule, courts are properly very skeptical about claims that competition has been harmed by a dominant firm's product design changes.  See, e.g., Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 544-45 (9th Cir. 1983).  In a competitive market, firms routinely innovate in the hope of appealing to consumers, sometimes in the process making their products incompatible with those of rivals; the imposition of liability when a monopolist does the same thing will inevitably deter a certain amount of innovation.  This is all the more true in a market, such as this one, in which the product itself is rapidly changing . . . .  Judicial deference to product innovation, however, does not mean that a monopolist's product design decisions are per se lawful.   See Foremost Pro Color, 703 F.2d at 545; see also Cal. Computer Prods., 613 F.2d at 739, 744; In re IBM Peripheral EDP Devices Antitrust Litig., 481 F. Supp. 965, 1007-08 (N.D. Cal. 1979).

The District Court first condemned as anticompetitive Microsoft's decision to exclude IE from the "Add/Remove Programs" utility in Windows 98. Findings of Fact ¶ 170.  Microsoft had included IE in the Add/Remove Programs utility in Windows 95, . . .  but when it modified Windows 95 to produce Windows 98, it took IE out of the Add/Remove Programs utility.  This change reduces the usage share of rival browsers not by making Microsoft's own browser more attractive to consumers but, rather, by discouraging OEMs from distributing rival products.   Because Microsoft's conduct, through something other than competition on the merits, has the effect of significantly reducing usage of rivals' products and hence protecting its own operating system monopoly, it is anticompetitive . . . .

Second, the District Court found that Microsoft designed Windows 98 "so that using Navigator on Windows 98 would have unpleasant consequences for users" by, in some circumstances, overriding the user's choice of a browser other than IE as his or her default browser. . . . * * *  Because the override reduces rivals' usage share and protects Microsoft's monopoly, it too is anticompetitive.  

Finally, the District Court condemned Microsoft's decision to bind IE to Windows 98 "by placing code specific to Web browsing in the same files as code that provided operating system functions." . . . .  Putting code supplying browsing functionality into a file with code supplying operating system functionality "ensures that the deletion of any file containing browsing-specific routines would also delete vital operating system routines and thus cripple Windows. . . ."   As noted above, [*66] preventing an OEM from removing IE deters it from installing a second browser because doing so increases the OEM's product testing and support costs; by contrast, had OEMs been able to remove IE, they might have chosen to pre-install Navigator alone.

* * *

* * *  [W]e 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.  


b.  Microsoft's justifications for integration

Microsoft proffers no justification for two of the three challenged actions that it took in integrating IE into Windows—excluding IE from the Add/Remove Programs utility and commingling browser and operating system code.  Although Microsoft does make some general claims regarding the benefits of integrating the browser and the operating system, see, e.g., Direct Testimony of James Allchin ¶ 94, reprinted in 5 J.A. at 3321 ("Our vision of deeper levels of technical integration is highly efficient and provides substantial benefits to customers and developers."), it neither specifies nor substantiates those claims.  Nor does it argue that either excluding IE from the Add/Remove Programs utility or commingling code achieves any integrative [*67] benefit.  Plaintiffs plainly made out a prima facie case of harm to competition in the operating system market by demonstrating that Microsoft's actions increased its browser usage share and thus protected its operating system monopoly from a middleware threat and, for its part, Microsoft failed to meet its burden of showing that its conduct serves a purpose other than protecting its operating system monopoly.  Accordingly, we hold that Microsoft's exclusion of IE from the Add/Remove Programs utility and its commingling of browser and operating system code constitute exclusionary conduct, in violation of § 2.  

As for the other challenged act that Microsoft took in integrating IE into Windows—causing Windows to override the user's choice of a default browser in certain circumstances—Microsoft argues that it has "valid technical reasons."  Specifically, Microsoft claims that it was necessary to design Windows to override the user's preferences when he or she invokes one of "a few" out "of the nearly 30 means of accessing the Internet." . . .  According to Microsoft:

    "The Windows 98 Help system and Windows Update feature depend on ActiveX controls not supported by Navigator, and the now-discontinued Channel Bar utilized Microsoft's Channel Definition Format, which Navigator also did not support.  Lastly, Windows 98 does not invoke Navigator if a user accesses the Internet through ‘My Computer' or ‘Windows Explorer' because doing so would defeat one of the purposes of those features—enabling users to move seamlessly from local storage devices to the Web in the same browsing window."  
Id. (internal citations omitted).  The plaintiff bears the burden not only of rebutting a proffered justification but also of demonstrating that the anticompetitive effect of the challenged action outweighs it.  In the District Court, plaintiffs appear to have done neither, let alone both; in any event, upon appeal, plaintiffs offer no rebuttal whatsoever.  Accordingly, Microsoft may not be held liable for this aspect of its product design.  


3.  Agreements with Internet Access Providers

The District Court also condemned as exclusionary Microsoft's agreements with various IAPs.  The IAPs include both Internet Service Providers, which offer consumers internet access, and Online Services ("OLSs") such as America Online ("AOL"), which offer proprietary content in addition to internet access and other services.  Findings of Fact ¶ 15. * * *

The District Court condemned Microsoft's actions . . .  
    [The condemned actions fell into two categories.   First, Microsoft had offered IAPs promotional inducements to use IE, including free copies of IE, bonuses for signing up customers to use IE, and free kits (called IE Access Kits (or "IEAKs") to help IAPs customize how their Websites appeared on IE.   Second, "Microsoft agreed to provide easy access to IAPs' services from the Windows desktop in return for the IAPs' agreement to promote IE exclusively and to keep shipments of internet access software using Navigator under a specific percentage, typically 25%."]

* * * [*68] * * *

The rare case of price predation aside [which plaintiffs did not press upon appeal], the antitrust laws do not condemn even a monopolist for offering its product at an attractive price, and we therefore have no warrant to condemn Microsoft for offering either IE or the IEAK free of charge or even at a negative price.  Likewise, as we said above, a monopolist does not violate the Sherman Act simply by developing an attractive product.  See Grinnell, 384 U.S. at 571 ("Growth or development as a consequence of a superior product [or] business acumen" is no violation.).  Therefore, Microsoft's development of the IEAK does not violate the Sherman Act.  

We turn now to Microsoft's deals with IAPs concerning desktop placement. * * *  Under [its AOL] agreement Microsoft puts the AOL icon in the OLS folder on the Windows desktop and AOL does not promote any non-Microsoft browser, nor provide software using any non-Microsoft browser except at the customer's request, and even then AOL will not supply more than 15% of its subscribers with a browser other than IE.

The Supreme Court most recently considered an antitrust challenge to an exclusive contract in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 5 L. Ed. 2d 580, 81 S. Ct. 623 (1961).  That case, involved a challenge to a requirements contract, was brought under § 3 of the Clayton Act and §§ 1 and 2 of the Sherman Act.  The Court held that an exclusive contract does not violate the Clayton Act unless its probable effect is to "foreclose competition in a substantial share of the line of commerce affected."  Id. at 327.  The share of the market foreclosed is important because, for the contract to have an adverse effect upon competition, "the opportunities for other traders to enter into or remain in that market must be significantly limited."  Id. at 328.  Although "neither the Court of Appeals nor the District Court [had] considered in detail the question of the relevant market," id. at 330, the Court in Tampa Electric examined the record and, after defining the relevant market, determined that the contract affected less than one percent of that market. After concluding, under the Clayton Act, that this share was "conservatively speaking, quite insubstantial," the Court went on summarily to reject the Sherman Act claims.  Id. at 335 ("If [the contract] does not fall within the broader prescription of § 3 of the Clayton Act it follows that it is not forbidden by those of the [Sherman Act].").  

Following Tampa Electric, courts considering antitrust challenges to exclusive contracts have taken care to identify the share of the market foreclosed.  Some courts have indicated that § 3 of the Clayton Act and § 1 of the Sherman Act require an equal degree of foreclosure before prohibiting exclusive contracts. . . .  Other courts, however, have held that a higher market share must be foreclosed in order to establish a violation of the Sherman Act as compared to the Clayton Act.. . .  

Though what is "significant" may vary depending upon the antitrust provision under which an exclusive deal is challenged, it is clear that in all cases the plaintiff must both define the relevant market and prove the degree of foreclosure.  This is a prudential requirement; exclusivity provisions in contracts may serve many useful purposes.. . .  Permitting an antitrust action to proceed any time a firm enters into an exclusive deal would both discourage a presumptively legitimate business practice and encourage costly antitrust actions.  Because an exclusive deal affecting a small fraction of a market clearly cannot have the requisite harmful effect upon competition, the requirement of a significant degree of foreclosure serves a useful screening function. . . .   [*70]

    [The district court rejected had plaintiffs' exclusive-dealing claim under Section 1, and they did not appeal that ruling.]
Turning to § 2, the [district] court stated: "the fact that Microsoft's arrangements with various [IAPs and other] firms did not foreclose enough of the relevant market to constitute a § 1 violation in no way detracts from the Court's assignment of liability for the same arrangements under § 2. . . .  All of Microsoft's agreements, including the non-exclusive ones, severely restricted Netscape's access to those distribution channels leading most efficiently to the acquisition of browser usage share."  Conclusions of Law, at 53.  

On appeal Microsoft argues that "courts have applied the same standard to alleged exclusive dealing agreements under both Section 1 and Section 2," and it argues that the District Court's holding of no liability under § 1 necessarily precludes holding it liable under § 2. * * *

The basic prudential concerns relevant to §§ 1 and 2 are admittedly the same: exclusive contracts are commonplace—particularly in the field of distribution—in our competitive, market economy, and imposing upon a firm with market power the risk of an antitrust suit every time it enters into such a contract, no matter how small the effect, would create an unacceptable and unjustified burden upon any such firm.  At the same time, however, we agree with plaintiffs that a monopolist's use of exclusive contracts, in certain circumstances, may give rise to a § 2 violation even though the contracts foreclose less than the roughly 40% or 50% share usually required in order to establish a § 1 violation. . . .

In this case, plaintiffs allege that, by closing to rivals a substantial percentage of the available opportunities for browser distribution, Microsoft managed to preserve its monopoly in the market for operating systems.  The IAPs constitute one of the two major channels by which browsers can be distributed. Findings of Fact ¶ 242.  Microsoft has exclusive deals with [*71] "fourteen of the top fifteen access providers in North America[, which] account for a large majority of all Internet access subscriptions in this part of the world."  Id. ¶ 308.  By ensuring that the "majority" of all IAP subscribers are offered IE either as the default browser or as the only browser, Microsoft's deals with the IAPs clearly have a significant effect in preserving its monopoly; they help keep usage of Navigator below the critical level necessary for Navigator or any other rival to pose a real threat to Microsoft's monopoly.  See, e.g., id. ¶ 143 (Microsoft sought to "divert enough browser usage from Navigator to neutralize it as a platform.") . . .

Plaintiffs having demonstrated a harm to competition, the burden falls upon Microsoft to defend its exclusive dealing contracts with IAPs by providing a procompetitive justification for them. Significantly, Microsoft's only explanation for its exclusive dealing is that it wants to keep developers focused upon its APIs—which is to say, it wants to preserve its power in the operating system market. . . .  That is not an unlawful end, but neither is it a procompetitive justification for the specific means here in question, namely exclusive dealing contracts with IAPs.  Accordingly, we affirm the District Court's decision holding that Microsoft's exclusive contracts with IAPs are exclusionary devices, in violation of § 2 of the Sherman Act.


4.  Dealings with Internet Content Providers, Independent Software Vendors, and Apple Computer
    [The court next addressed Microsoft's promotional and exclusive deals with ICPs (independent content providers, who develop Websites), ISV's (independent software vendors, who develop and market applications that interoperate with Microsoft's operating sytems, and Apple Computer.  It first rejected, for lack of substantial evidence, the claim that Microsoft's deals with ICPs were anticompetitive.  It upheld, however, the claim that Microsoft's exclusive deals with independent software vendors, under which they agreed to use and promote IE exclusively, were anticompetitive and, in the absence of justification, violated Section 2.   The reasoning was similar to that applied to the exclusive deals with IAPs above.  The court then turn to Microsoft's behavior vis-a-vis Apple Computer.]
* * * 72 * * *

Finally, the District Court held that Microsoft's dealings with Apple violated the Sherman Act.  See Conclusions of Law, at 42-43.  Apple is vertically integrated: it makes both software (including an operating system, Mac OS), and hardware (the Macintosh line of computers). Microsoft primarily makes software, including, in addition to its operating system, [*73] a number of popular applications.  One, called "Office," is a suite of business productivity applications that Microsoft has ported to Mac OS.  The District Court found that "ninety percent of Mac OS users running a suite of office productivity applications [use] Microsoft's Mac Office."  Findings of Fact ¶ 344.  Further, the District Court found that:
    "In 1997, Apple's business was in steep decline, and many doubted that the company would survive much longer. . . .  Many ISVs questioned the wisdom of continuing to spend time and money developing applications for the Mac OS. Had Microsoft announced in the midst of this atmosphere that it was ceasing to develop new versions of Mac Office, a great number of ISVs, customers, developers, and investors would have interpreted the announcement as Apple's death notice."  
Id. ¶ 344.  Microsoft recognized the importance to Apple of its continued support of Mac Office.  See id. ¶ 347 (quoting internal Microsoft e-mail) ("[We] need a way to push these guys[, i.e., Apple] and [threatening to cancel Mac Office] is the only one that seems to make them move."); see also id. ("[Microsoft Chairman Bill] Gates asked whether Microsoft could conceal from Apple in the coming month the fact that Microsoft was almost finished developing Mac Office 97."); id. at ¶ 354 ("I think . . . Apple should be using [IE] everywhere and if they don't do it, then we can use Office as a club.").  

In June 1997 Microsoft Chairman Bill Gates determined that the company's negotiations with Apple "‘have not been going well at all. . . .  Apple let us down on the browser by making Netscape the standard install.' Gates then reported that he had already called Apple's CEO . . . to ask ‘how we should announce the cancellation of Mac Office. . . .'" Id. at ¶ 349.  The District Court further found that, within a month of Gates' call, Apple and Microsoft had reached an agreement pursuant to which [Microsoft agreed to continue updating Mac Office for five years and Apple agreed to bundle IE with the Mac operating system and make the default browser and exclusve desktop browser icon.] * * *  The agreement also prohibits Apple from encouraging users to substitute another browser for IE, and states that Apple will "encourage its employees to use [IE]."

This exclusive deal between Microsoft and Apple has a substantial effect upon the distribution of rival browsers.  If a browser developer ports its product to a second operating system, such as the Mac OS, it can continue to display a common set of APIs.  Thus, usage share, not the underlying operating system, is the primary determinant of the platform challenge a browser may pose.  Pre-installation of a browser (which can be accomplished either by including the browser with the operating system or by the OEM installing browser) is one of the two most important methods of browser distribution, and Apple had a not insignificant share of worldwide sales of operating systems.  See id. ¶ 35 (Microsoft has 95% of the market not counting Apple and "well above" 80% with Apple included in the relevant market).  Because Microsoft's exclusive contract with Apple [*74] has a substantial effect in restricting distribution of rival browsers, and because (as we have described several times above) reducing usage share of rival browsers serves to protect Microsoft's monopoly, its deal with Apple must be regarded as anticompetitive. . . .  

Microsoft offers no procompetitive justification for the exclusive dealing arrangement. . . .  Accordingly, we hold that the exclusive deal with Apple is exclusionary, in violation of § 2 of the Sherman Act.


5.  Java

Java, a set of technologies developed by Sun Microsystems, is another type of middleware posing a potential threat to Windows' position as the ubiquitous platform for software development.  Findings of Fact ¶ 28. * * *  
    [The Java product, or "Java runtime environment," included several components, one of which was a "Java virtual machine" (JVM), which translated Java programs into instructions for the operating system.  The idea of JVM was to provide a "portable" Java environment that could be adapted or "ported" to different operating systems.  Once so "ported," it would provide the same programming environment on all of them.]
In May 1995 Netscape agreed with Sun to distribute a copy of the Java runtime environment with every copy of Navigator, and "Navigator quickly became the principal vehicle by which Sun placed copies of its Java runtime environment on the PC systems of Windows users."  Id. ¶ 76.  Microsoft, too, agreed to promote the Java technologies—or so it seemed.  For at the same time, Microsoft took steps "to maximize the difficulty with which applications written in Java could be ported from Windows to other platforms, and vice versa."  Conclusions of Law, at 43.  Specifically, the District Court found that Microsoft took four steps to exclude Java from developing as a viable cross-platform threat: (a) designing a JVM incompatible with the one developed by Sun; (b) entering into contracts, the so-called "First Wave Agreements," requiring major ISVs to promote Microsoft's JVM exclusively; (c) deceiving Java developers about the Windows-specific nature of the tools it distributed to them; and (d) coercing Intel to stop aiding Sun in improving the Java technologies.  

a.  The incompatible JVM

The District Court held that Microsoft engaged in exclusionary conduct by developing and promoting its own JVM.  Conclusions of Law, at 43-44.  Sun had already developed a JVM for the Windows operating system when Microsoft began work on its version.  The JVM developed by Microsoft allows Java applications to run faster on Windows than does Sun's JVM, Findings of Fact ¶ 389, but a Java application designed to work with Microsoft's JVM does not work with Sun's JVM and vice versa. * * * [*75]

* * * [A] monopolist does not violate the antitrust laws simply by developing a product that is incompatible with those of its rivals. . . .  In order to violate the antitrust laws, the incompatible product must have an anticompetitive effect that outweighs any procompetitive justification for the design.  Microsoft's JVM is not only incompatible with Sun's, it allows Java applications to run faster on Windows than does Sun's JVM.  Microsoft's faster JVM lured Java developers into using Microsoft's developer tools, and Microsoft offered those tools deceptively, as we discuss below.  The JVM, however, does allow applications to run more swiftly and does not itself have any anticompetitive effect.  Therefore, we reverse the District Court's imposition of liability for Microsoft's development and promotion of its JVM.  

b. The First Wave Agreements

The District Court also found that Microsoft entered into First Wave Agreements with dozens of ISVs to use Microsoft's JVM. See Findings of Fact ¶ 401 ("In exchange for costly technical support and other blandishments, Microsoft induced dozens of important ISVs to make their Java applications reliant on Windows-specific technologies and to refrain from distributing to Windows users JVMs that complied with Sun's standards.").  Again, we reject the District Court's condemnation of low but non-predatory pricing by Microsoft.  

To the extent Microsoft's First Wave Agreements with the ISVs conditioned receipt of Windows technical information upon the ISVs' agreement to promote Microsoft's JVM exclu-sively, they raise a different competitive concern.  The District Court found that, although not literally exclusive, the deals were exclusive in practice because they required developers to make Microsoft's JVM the default in the software they developed.

While the District Court did not enter precise findings as to the effect of the First Wave Agreements upon the overall distribution of rival JVMs, the record indicates that Microsoft's deals with the major ISVs had a significant effect upon JVM promotion.  As discussed above, the products of First Wave ISVs reached millions of consumers. * * *  Moreover, Microsoft's exclusive deals with the leading ISVs took place against a backdrop of foreclosure: the District Court found that "when Netscape announced in May 1995 [prior to Microsoft's execution of the First Wave Agreements] that it would include with every copy of Navigator a copy of a Windows JVM that complied with Sun's standards, it appeared that Sun's Java implementation would achieve the necessary ubiquity on Windows."  Findings of Fact ¶ 394.  As discussed above, however, Microsoft undertook a number of anticompetitive actions that seriously reduced the distribution of Navigator, and the District [*76]Court found that those actions thereby seriously impeded distribution of Sun's JVM.  Conclusions of Law, at 43-44.  Because Microsoft's agreements foreclosed a substantial portion of the field for JVM distribution and because, in so doing, they protected Microsoft's monopoly from a middleware threat, they are anticompetitive.  

Microsoft offered no procompetitive justification for the default clause that made the First Wave Agreements exclusive as a practical matter.  See Findings of Fact ¶ 401.  Because the cumulative effect of the deals is anticompetitive and because Microsoft has no procompetitive justification for them, we hold that the provisions in the First Wave Agreements requiring use of Microsoft's JVM as the default are exclusionary, in violation of the Sherman Act.  

c.  Deception of Java developers

Microsoft's "Java implementation" included, in addition to a JVM, a set of software development tools it created to assist ISVs in designing Java applications.  The District Court found that, not only were these tools incompatible with Sun's cross-platform aspirations for Java—no violation, to be sure—but Microsoft deceived Java developers regarding the Windows-specific nature of the tools. * * *  That is, developers who relied upon Microsoft's public commitment to cooperate with Sun and who used Microsoft's tools to develop what Microsoft led them to believe were cross-platform applications ended up producing applications that would run only on the Windows operating system.  

When specifically accused by a PC Week reporter of fragmenting Java standards so as to prevent cross-platform uses, Microsoft denied the accusation and indicated it was only "adding rich platform support" to what remained a crossplatform implementation.  An e-mail message internal to Microsoft, written shortly after the conversation with the reporter, shows otherwise:
    "[The reporter] accused us of being schizo with this vs. our java approach, i said he misunderstood [—]that [with Java] we are merely trying to add rich platform support to an interop layer. . . . this plays well. . . . at this point its [sic] not good to create MORE noise around our win32 java classes.  instead we should just quietly grow j [(Microsoft's development tools)] share and assume that people will take more advantage of our classes without ever realizing they are building win 32-only java apps."  
Finally, other Microsoft documents confirm that Microsoft intended to deceive Java developers, and predicted that the effect of its actions would be to generate Windows-dependent Java applications that their developers believed would be cross-platform; these documents also indicate that Microsoft's ultimate objective was to thwart Java's threat to Microsoft's monopoly in the market for operating systems.  One Microsoft document, for example, states as a strategic goal: "Kill cross-platform [*77] Java by growing the polluted Java market."  It also notes that "[c]ross-platform capability is by far the number one reason for choosing/using Java."  (emphasis in original).  

Microsoft's conduct related to its Java developer tools served to protect its monopoly of the operating system in a manner not attributable either to the superiority of the operating system or to the acumen of its makers, and therefore was anticompetitive.  Unsurprisingly, Microsoft offers no procompetitive explanation for its campaign to deceive developers.  Accordingly, we conclude this conduct is exclusionary, in violation of § 2 of the Sherman Act.  


d.  The threat to Intel

The District Court held that Microsoft also acted unlawfully with respect to Java by using its "monopoly power to prevent firms such as Intel from aiding in the creation of cross-platform interfaces."  Conclusions of Law, at 43.  In 1995 Intel was in the process of developing a high performance, Windows-compatible JVM.  Microsoft wanted Intel to abandon that effort because a fast, cross-platform JVM would threaten Microsoft's monopoly in the operating system market.   At an August 1995 meeting, Microsoft's Gates told Intel that its "cooperation with Sun and Netscape to develop a Java runtime environment . . . was one of the issues threatening to undermine cooperation between Intel and Microsoft."  Findings of Fact ¶ 396.  Three months later, "Microsoft's Paul Maritz told a senior Intel executive that Intel's [adaptation of its multimedia software to comply with] Sun's Java standards was as inimical to Microsoft as Microsoft's support for non-Intel microprocessors would be to Intel."  Id. ¶ 405.  

Intel nonetheless continued to undertake initiatives related to Java. * * *

Intel finally capitulated in 1997, after Microsoft delivered the coup de grace.  

One of Intel's competitors, called AMD, solicited support from Microsoft for its "3DX" technology. . . .  Microsoft's Allchin asked Gates whether Microsoft should support 3DX, despite the fact that Intel would oppose it.  Gates responded: "If Intel has a real problem with us supporting this then they will have to stop supporting Java Multimedia the way they are.  I would gladly give up supporting this if they would back off from their work on JAVA." Id. ¶ 406.  

Microsoft's internal documents and deposition testimony confirm both the anticompetitive effect and intent of its actions.. . .  

Microsoft does not deny the facts found by the District Court, nor does it offer any procompetitive justification for pressuring Intel not to support cross-platform Java.  Microsoft lamely characterizes its threat to Intel as "advice."  The District Court, [*78] however, found that Microsoft's "advice" to Intel to stop aiding cross-platform Java was backed by the threat of retaliation, and this conclusion is supported by the evidence cited above.  Therefore we affirm the conclusion that Microsoft's threats to Intel were exclusionary, in violation of § 2 of the Sherman Act.

6.  Course of Conduct

The District Court held that, apart from Microsoft's specific acts, Microsoft was liable under § 2 based upon its general "course of conduct." * * *

* * *

[T]he District Court did not point to any series of acts, each of which harms competition only slightly but the cumulative effect of which is significant enough to form an independent basis for liability.  The "course of conduct" section of the District Court's opinion contains, with one exception, only broad, summarizing conclusions. See, e.g., Conclusions of Law, at 44 ("Microsoft placed an oppressive thumb on the scale of competitive fortune. . . .").  The only specific acts to which the court refers are Microsoft's expenditures in promoting its browser, . . .  which we have explained are not in themselves unlawful.  Because the District Court identifies no other specific acts as a basis for "course of conduct" liability, we reverse its conclusion that Microsoft's course of conduct separately violates § 2 of the Sherman Act.  

C. Causation

As a final parry, Microsoft urges this court to reverse on the monopoly maintenance claim, because plaintiffs never established a causal link between Microsoft's anticompetitive conduct, in particular its foreclosure of Netscape's and Java's distribution channels, and the maintenance of Microsoft's operating system monopoly.  See Findings of Fact ¶ 411 ("There is insufficient evidence to find that, absent Microsoft's actions, Navigator and Java already would have ignited genuine competition in the market for Intel-compatible PC operating systems.").  This is the flip side of Microsoft's earlier argument that the District Court should have included middleware in the relevant market.  According to Microsoft, the District Court cannot simultaneously find that middleware is not a reasonable substitute and that Microsoft's exclusionary conduct contributed to the maintenance of monopoly power in the operating system market.  Microsoft claims that the first finding depended on the court's view that middleware does not pose a serious threat to Windows, . . .  while the [*79] second finding required the court to find that Navigator and Java would have developed into serious enough cross-platform threats to erode the applications barrier to entry.  We disagree.  

Microsoft points to no case, and we can find none, standing for the proposition that, as to § 2 liability in an equitable enforcement action, plaintiffs must present direct proof that a defendant's continued monopoly power is precisely attributable to its anticompetitive conduct. * * *

* * * To require that § 2 liability turn on a plaintiff's ability or inability to reconstruct the hypothetical marketplace absent a defendant's anticompetitive conduct would only encourage monopolists to take more and earlier anticompetitive action.  

We may infer causation when exclusionary conduct is aimed at producers of nascent competitive technologies as well as when it is aimed at producers of established substitutes.  Admittedly, in the former case there is added uncertainty, inasmuch as nascent threats are merely potential substitutes.  But the underlying proof problem is the same—neither plaintiffs nor the court can confidently reconstruct a product's hypothetical technological development in a world absent the defendant's exclusionary conduct.  To some degree, "the defendant is made to suffer the uncertain consequences of its own undesirable conduct."  3 AREEDA & HOVENKAMP, ANTITRUST LAW ¶ 651c, at 78.  

Given this rather edentulous test for causation, the question in this case is not whether Java or Navigator would actually have developed into viable platform substitutes, but (1) whether as a general matter the exclusion of nascent threats is the type of conduct that is reasonably capable of contributing significantly to a defendant's continued monopoly power and (2) whether Java and Navigator reasonably constituted nascent threats at the time Microsoft engaged in the anticompetitive conduct at issue.  As to the first, suffice it to say that it would be inimical to the purpose of the Sherman Act to allow monopolists free reign to squash nascent, albeit unproven, competitors at will—particularly in industries marked by rapid technological advance and frequent paradigm shifts.  Findings of Fact ¶ P 59-60.  As to the second, the District Court made ample findings that both Navigator and Java showed potential as middleware platform threats.  Findings of Fact ¶ ¶ 68-77.  Counsel for Microsoft admitted as much at oral argument.  ("There are no constraints on output.  Marginal costs are essentially zero.  And there are to some extent network effects.  So a company like Netscape founded in 1994 can be by the middle of 1995 clearly a potentially lethal competitor to Windows because it can supplant its position in the market because of the characteristics of these markets."). [*80]

Microsoft's concerns over causation have more purchase in connection with the appropriate remedy issue, i.e., whether the court should impose a structural remedy or merely enjoin the offensive conduct at issue.  As we point out later in this opinion, divestiture is a remedy that is imposed only with great caution, in part because its long-term efficacy is rarely certain. . . .  Absent some measure of confidence that there has been an actual loss to competition that needs to be restored, wisdom counsels against adopting radical structural relief.  See 3 AREEDA & HOVENKAMP, ANTITRUST LAW ¶ 653b, at 91-92 ("More extensive equitable relief, particularly remedies such as divestiture designed to eliminate the monopoly altogether, raise more serious questions and require a clearer indication of a significant causal connection between the conduct and creation or maintenance of the market power.").  But these queries go to questions of remedy, not liability.  In short, causation affords Microsoft no defense to liability for its unlawful actions undertaken to maintain its monopoly in the operating system market.


III.  ATTEMPTED MONOPOLIZATION

Microsoft further challenges the District Court's determination of liability for "attempting to monopolize . . . any part of the trade or commerce among the several States."  15 U.S.C. § 2 (1997).  To establish a § 2 violation for attempted monopolization, "a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 122 L. Ed. 2d 247, 113 S. Ct. 884 (1993) . . .   Because a deficiency on any one of the three will defeat plaintiffs' claim, we look no further than plaintiffs' failure to prove a dangerous probability of achieving monopoly power in the putative browser market.

The determination whether a dangerous probability of success exists is a particularly fact-intensive inquiry. * * *  The District Court determined that "the evidence supports the conclusion that Microsoft's actions did pose such a danger."  Conclusions of Law, at 45. . . .

At the outset we note a pervasive flaw in the District Court's and plaintiffs' discussion of attempted monopolization.  Simply put, plaintiffs have made the same argument under two different headings—monopoly maintenance and attempted monopolization. [*81] They have relied upon Microsoft's § 2 liability for monopolization of the operating system market as a presumptive indicator of attempted monopolization of an entirely different market.  The District Court implicitly accepted this approach: It agreed with plaintiffs that the events that formed the basis for the § 2 monopolization claim "warranted additional liability as an illegal attempt to amass monopoly power in the browser market."  (emphasis added).  Thus, plaintiffs and the District Court failed to recognize the need for an analysis wholly independent of the conclusions and findings on monopoly maintenance.  

To establish a dangerous probability of success, plaintiffs must as a threshold matter show that the browser market can be monopolized, i.e., that a hypothetical monopolist in that market could enjoy market power.  This, in turn, requires plaintiffs (1) to define the relevant market and (2) to demonstrate that substantial barriers to entry protect that market.  Because plaintiffs have not carried their burden on either prong, we reverse without remand.  


A.  Relevant Market

A court's evaluation of an attempted monopolization claim must include a definition of the relevant market.  See Spectrum Sports, 506 U.S. at 455-56.  Such a definition establishes a context for evaluating the defendant's actions as well as for measuring whether the challenged conduct presented a dangerous probability of monopolization.  The District Court omitted this element of the Spectrum Sports inquiry.

Defining a market for an attempted monopolization claim involves the same steps as defining a market for a monopoly maintenance claim, namely a detailed description of the purpose of a browser—what functions may be included and what are not—and an examination of the substitutes that are part of the market and those that are not.. . .  The District Court never engaged in such an analysis nor entered detailed findings defining what a browser is or what products might constitute substitutes. . . .

Because the determination of a relevant market is a factual question to be resolved by the District Court, . . .  we would normally remand the case so that the District Court could formulate an appropriate definition. . . .  A remand on market definition is unnecessary, however, because the District Court's imprecision is directly traceable to plaintiffs' failure to articulate and identify evidence before the District Court as to (1) what constitutes a browser (i.e., what are the technological components of or functionalities [*82] provided by a browser) and (2) why certain other products are not reasonable substitutes (e.g., browser shells or viewers for individual internet extensions, such as Real Audio Player or Adobe Acrobat Reader). . . .  Indeed, when plaintiffs in their Proposed Findings of Fact attempted to define a relevant market for the attempt claim, they pointed only to their separate products analysis for the tying claim. . . .  However, the separate products analysis for tying purposes is not a substitute for the type of market definition that Spectrum Sports requires.

* * *

B.  Barriers to Entry

Because a firm cannot possess monopoly power in a market unless that market is also protected by significant barriers to entry, . . .  it follows that a firm cannot threaten to achieve monopoly power in a market unless that market is, or will be, similarly protected.  See Spectrum Sports, 506 U.S. at 456 ("In order to determine whether there is a dangerous probability of monopolization, courts have found it necessary to consider . . . the defendant's ability to lessen or destroy competition in that market.") (citing cases).  Plaintiffs have the burden of establishing barriers to entry into a properly defined relevant market.. . .  Plaintiffs must not only show that barriers to entry protect the properly defined browser market, but that those barriers are "significant." See United States v. Baker Hughes Inc., 285 U.S. App. D.C. 222, 908 F.2d 981, 987 (D.C. Cir. 1990).  Whether there are significant barriers to entry cannot, of course, be answered absent an appropriate market definition; thus, plaintiffs' failure on that score alone is dispositive.  But even were we to assume a properly defined market, for example browsers consisting of a graphical interface plus internet protocols, plaintiffs nonetheless failed to carry their burden on barriers to entry.  

Contrary to plaintiffs' contention on appeal, . . .  none of the District Court's statements constitutes a finding of barriers to entry into the web browser market. . . .

* * * [*83] * * *

Giving plaintiffs and the District Court the benefit of the doubt, we might remand if the possible existence of entry barriers resulting from the possible creation and exploitation of network effects in the browser market were the only concern.  That is not enough to carry the day, however, because the District Court did not make two key findings: (1) that network effects were a necessary or even probable, rather than merely possible, consequence of high market share in the browser market and (2) that a barrier to entry resulting from network effects would be "significant" enough to confer monopoly power.  Again, these deficiencies are in large part traceable to plaintiffs' own failings. * * *  The proffered testimony contains no evidence regarding the [*84] cost of "porting" websites to different browsers or the potentially different economic incentives facing ICPs, as opposed to ISVs, in their decision to incur costs to do so.  Simply invoking the phrase "network effects" without pointing to more evidence does not suffice to carry plaintiffs' burden in this respect.  

Any doubt that we may have had regarding remand instead of outright reversal on the barriers to entry question was dispelled by plaintiffs' arguments on attempted monopolization before this court.  Not only did plaintiffs fail to articulate a website barrier to entry theory in either their brief or at oral argument, they failed to point the court to evidence in the record that would support a finding that Microsoft would likely erect significant barriers to entry upon acquisition of a dominant market share.  

Plaintiffs did not devote the same resources to the attempted monopolization claim as they did to the monopoly maintenance claim.  But both claims require evidentiary and theoretical rigor.  Because plaintiffs failed to make their case on attempted monopolization both in the District Court and before this court, there is no reason to give them a second chance to flesh out a claim that should have been fleshed out the first time around.  Accordingly, we reverse the District Court's determination of § 2 liability for attempted monopolization.

Back to Top