Sun Jun 28 17:46:47 1998
这几天忙着跟几个对手辩论微软的官司，更由于访问国外网址异常困难（！），竟然错过了上个礼拜三就应该知道的消息：美国上诉法院判决微软在“视窗
95”中捆绑IE4.0是合法的。 这个判决将使得司法部上个月对微软的另外一个指控——指控微软在“视窗98”中捆绑IE——陷于不利的处境。这些新闻，
大家都可以在 YAHOO 的新闻专题中找到，甚至可以找到司法部和法院的原始文件。我很高兴微软赢了一场战役，也希望微软尽快赢得整场战争。但是，跟一些以为法庭的判决就是是非的最后标准的人不一样，我认为整个反垄断的想法都是错误的。假如微软最终能够赢得这场战争，将可以让法制的精神走上另外一条为自由主义精神祝福的道路。
Wednesday June 24 11:32 PM ET Microsoft Wins Appeal By Will Rodger, ZDNetA U.S. Appeals Court Tuesday ruled that Microsoft Corp. did not violate a previous court order when it bundled its Windows 95 operating system with its Internet Explorer browser, seriously undercutting the Justice Department's antitrust actions against the world's largest maker of software for personal computers.
The ruling dealt only with a case filed last fall over Windows 95, a product whose life cycle will end with the release of Windows 98 on Thursday. Nonetheless, the most current case against Microsoft also relies heavily on allegations of illegal bundling and could be seriously hampered by the latest ruling, legal analysts said.
"All the bundling and leveraging is in the bulls-eye here," said William Kovacic, professor of law at George Mason University and a former antitrust attorney at the Federal Trade Commission. "This makes it a very tough case for the Justice Department."
The latest antitrust case filed by the DOJ and 20 states attorneys general centers around allegations that Microsoft is trying to illegally extend its monopoly in PC operating systems to the market for browser software, a segment of the computer industry which in and of itself poses a threat to conventional operating systems such as Windows.
The 2-1 ruling addressed a December 1997 ruling by Judge Thomas Penfield Jackson of the U.S. District court for the District of Columbia. Jackson had tentatively ruled that Microsoft's bundling of the Windows 95 operating system with its browser constituted a violation of a previous consent decree between the company and the DOJ that forbade tying sale of separate products to the operating system. Though the consent decree made an exception for sale of "integrated products," Justice and Microsoft differed over what that phrase meant.
In their opinion for the majority, Judges Stephen Williams and Raymond Randolph rejected each side's definitions. An integrated product, the judges ruled, should be superior to the products that once existed separately. "We think that an 'integrated product' is most reasonably understood as a product that combines functionalities (which may also be marketed separately and operated together) in a way that offers advantages unavailable if the functionalities are bought separately and combined by the purchaser," Williams wrote.
Microsoft's browser/operating system combination clearly passed that test, they wrote.
Jackson also erred, they said, when he issued the preliminary injunction without first giving Microsoft a chance to explain its side of the case.
Judge Patricia Wald agreed Jackson had made a procedural error but disputed the other judges' definition of what constituted an integrated product. The two judges had not shown sufficient consumer benefit from the bundling to justify it in the first place.
"Antitrust law cannot avoid determining whether a particular technological development has occurred because it is efficient or merely because it permits a monopolist to extend its monopoly to a new market," she wrote. "Here, the majority effectively exempts software products from antitrust analysis by stating that "software code by its nature is susceptible to division and combination in a way that physical products are not."
Microsoft officials were predictably cheered by the news of the ruling.
"The court today helped focus the legal issues squarely where they belong, by concentrating on whether a product innovation brings new benefits to consumers. We have long been confident that our Internet improvements to both Windows 95 and Windows 98 meet this test," said William H. Neukom, Microsoft's senior vice president for law and corporate affairs.
DOJ officials issued a three-sentence statement on the ruling. "We remain confident that the evidence and our legal arguments in our antitrust case filed on May 18, 1998, will demonstrate that Microsoft's conduct has violated federal antitrust laws," they said.
The three-judge panel also threw out the appointment of Harvard Law Professor Larry Lessig as special master to the case. Though Jackson had named Lessig to sort out the technical complexities of the case, the appeals court ruled the case was not sufficiently difficult to justify his role.
Windows 98
