The "non-settling" proposal has two definitions: one for Middleware and another for Microsoft Middleware Product. The settling states' proposal has four definitions involving middleware, addressing Microsoft Middleware, non-Microsoft Middleware, Microsoft Middleware Product, and non-Microsoft Middleware Product.
The definitions identify the specific areas where Microsoft's conduct violated antitrust laws, so different definitions will, of course, produce contradictory remedies.
According to our legal advisor Linda Eads, "Not only could such a labyrinth of provisions and definitions make it difficult for those responsible at Microsoft to interpret and comply with the final judgment, it will make it difficult for the oversight committee to determine the adequacy of that compliance." The settling states' proposal requires the members of the Technical Committee--charged with ensuring remedy compliance--to be "experts in software design and programming"; this could exacerbate the interpretation problem as the committee would lack legal or business experts. The rival proposal from the non-settling states allows any type of expert to participate in compliance oversight.
To better understand what each proposal means when it refers to middleware, how the definitions differ, and the potential ramifications of the differences, I attempted to decipher both sides' definitions. Because of the complexity of the task, I focused on just one of the key differences that I found--the definition of operating systems.
What's an operating system?
Each document's definition of middleware relies on other definitions that the documents also disagree on. After digging through the definitions, I was able to determine that the definitions in the settling proposal will limit the scope of some of the provisions to middleware that's designed to work only on Microsoft's desktop operating systems. This is evident for three reasons.
First, the definition of personal computer, on which the entire tree of definitions depends, is described as an Intel x86 or successor-based computer whose "primary purpose is for use by one person at a time." The definition specifically excludes servers, set-top boxes, handheld computers, game consoles, telephones, pagers, and personal digital assistants.
Second, the definition of Windows Operating System product is limited to Microsoft's operating systems for those personal computers: Windows 2000 Professional, Windows XP Home, Windows XP Professional, and their successors.
Third, the examples provided for Microsoft Middleware Product--Internet Explorer, Microsoft's Java Virtual Machine, Windows Media Player, Windows Messenger, Outlook Express, and their successors--include middleware products found on desktops, but exclude middleware products found on other platforms such as servers.
Alternatively, the non-settling proposal's definition "tree" seems painstakingly written to not limit the scope of the final judgment to middleware for Microsoft's desktop operating systems. Like the settling proposal, the definition of operating system relies on the definition of personal computer. The non-settling proposal specifically expands the scope beyond personal computers to include servers and handheld devices.
As such, the list of examples of Microsoft Middleware Products in the non-settling proposal includes products (such as Microsoft's Exchange) that are found in operating systems other than Microsoft's desktop operating systems.
It appears that the settling proposal has definitions that limit the application of some of the final judgment's provisions while the non-settling proposal is written in a non-exclusive, open-ended fashion so as to not to limit the final judgment's scope. As discussed in Rating the remedies, the three main objectives of an antitrust remedy (according to Supreme Court precedent), are to end the unlawful conduct, to restore competition to the relevant market, and avoid recurrence of the violation and others like it.
So, the question is whether restrictions on scope could interfere with the main objectives of an antitrust remedy. Considering its definitions for personal computer, operating system, and Windows operating system product, the settling proposal attempts to map the provisions to the "relevant market" that needs restoring. According to documents from the District and Appellate Courts, the relevant market is identified as "Intel-compatible PC operating systems."
Technically speaking, Microsoft's portfolio of "Intel-compatible PC operating systems" is not limited to desktop operating systems. Microsoft's server operating systems, which the settling proposal excludes, are also "Intel-compatible PC operating systems." It should be noted that desktop operating systems clearly comprise the majority of Intel-compatible PC operating systems that Microsoft has shipped.
According to Microsoft spokesperson Jim Desler, "The definitions were arrived at carefully and reflect what this case is all about. This case is about the desktop. The State's overbroad definitions and overbroad proposals are about a competitor's wish list of what they want, what they want the case to be about, and what they believe the remedy should be. We believe that every aspect of the settlement agreement, which was developed with the DOJ goes beyond what the U.S. Court of Appeals courts ruled, and does so in the interests of consumers and the industry."
However, whether or not the final judgment adequately addresses the relevant market may be a moot point. That's because the third objective of an antitrust remedy is to avoid recurrence of the violation and others like it.
The question this raises is whether Microsoft's involvement in the markets and technologies that the settling proposal excludes (such as servers, handhelds, phones, pagers, set-top boxes, etc.) could lead to a recurrence of the violation.
Should the definitions be limited to Microsoft's desktop operating systems, or expanded to Microsoft's other operating systems and middleware? How do you think the final remedy could affect your technology plans and infrastructure? Write to me at david.berlind@cnet.com or use ZDNet's TalkBack below.
Linda Eads, a professor of law at Southern Methodist University, contributed to this report. Eads has taught courses on the Microsoft antitrust case and, prior to joining the SMU faculty, served as the Deputy Attorney General for the State of Texas where she was in charge of the state's antitrust division. After Eads' tenure with Texas' Attorney General's office, Texas pursued Microsoft on antitrust charges, but later ceased its antitrust actions.
