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FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICROSOFT CORPORATION,
Defendant.
STATE OF NEW YORK, et al.,
Plaintiffs,
v.
MICROSOFT CORPORATION,
Defendant.
MICROSOFT CORPORATION,
Counterclaim-Plaintiff,
v.
ELIOT SPITZER, attorney general
of the State of New York,
in his official capacity, et al.,
Counterclaim-Defendants.
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Civil Action No. 98-1232 (TPJ)
Civil Action No. 98-1233 (TPJ)
FINAL JUDGMENT
Plaintiff, United States of America, having filed its complaint herein on May 18,
1998;
Plaintiff States, having filed their complaint herein on the same day;
Defendant Microsoft Corporation ("Microsoft") having appeared and filed its
answer to such complaints;
The Court having jurisdiction of the parties hereto and of the subject
matter hereof and having conducted a trial thereon and entered Findings of Fact
on November 5, 1999, and Conclusions of Law on April 3, 2000;
The Court having entered judgment in accordance with the Findings of
Fact and the Conclusions of Law on April 3, 2000, that Microsoft has violated
§§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, as well as the following state
law provisions: Cal Bus. & Prof. Code §§ 16720, 16726, 16727, 17200; Conn.
Gen. Stat. §§ 35-26, 35-27, 35-29; D.C. Code §§ 28-4502, 28-4503; Fla. Stat.
chs. 501.204(1), 542.18, 542.19; 740 Ill. Comp. Stat. ch. 10/3; Iowa Code §
553.4, 553.5; Kan. Stat. §§ 50-101 et seq.; Ky. Rev. Stat. §§ 367.170, 367.175;
La. Rev. Stat. §§ 51:122, 51:123, 51:1405; Md. Com. Law II Code Ann. §
11-204; Mass. Gen. Laws ch. 93A, § 2; Mich. Comp. Laws §§ 445.772,
445.773; Minn. Stat. § 325D.52; N.M. Stat. §§ 57-1-1, 57-1-2; N.Y. Gen. Bus.
Law § 340; N.C. Gen. Stat. §§ 75-1.1, 75-2.1; Ohio Rev. Code §§ 1331.01,
1331.02; Utah Code § 76-10-914; W.Va. Code §§ 47-18-3, 47-18-4; Wis. Stat.
§ 133.03(1)-(2); and
Upon the record at trial and all prior and subsequent proceedings herein, it
is this __7th___ day of June, 2000, hereby:
ORDERED, ADJUDGED, AND DECREED as follows:
1.Divestiture
a.Not later than four months after entry of this Final Judgment,
Microsoft shall submit to the Court and the Plaintiffs a proposed
plan of divestiture. The Plaintiffs shall submit any objections to the
proposed plan of divestiture to the Court within 60 days of receipt
of the plan, and Microsoft shall submit its response within 30 days
of receipt of the plaintiffs' objections.
b.Following approval of a final plan of divestiture by the Court (the
"Plan")(1) (and the expiration of the stay pending appeal set forth in
section 6.a), Microsoft shall implement such Plan.
c.The Plan shall provide for the completion, within 12 months of the
expiration of the stay pending appeal set forth in section 6.a., of the
following steps:
i.The separation of the Operating Systems Business from the
Applications Business, and the transfer of the assets of one
of them (the "Separated Business") to a separate entity
along with (a) all personnel, systems, and other tangible and
intangible assets (including Intellectual Property) used to
develop, produce, distribute, market, promote, sell, license
and support the products and services of the Separated
Business, and (b) such other assets as are necessary to
operate the Separated Business as an independent and
economically viable entity.
ii.Intellectual Property that is used both in a product
developed, distributed, or sold by the Applications Business
and in a product developed, distributed, or sold by the
Operating Systems Business as of April 27, 2000, shall be
assigned to the Applications Business, and the Operating
Systems Business shall be granted a perpetual, royalty-free
license to license and distribute such Intellectual Property in
its products, and, except with respect to such Intellectual
Property related to the Internet browser, to develop, license
and distribute modified or derivative versions of such
Intellectual Property, provided that the Operating Systems
Business does not grant rights to such versions to the
Applications Business. In the case of such Intellectual
Property that is related to the Internet browser, the license
shall not grant the Operating Systems Business any right to
develop, license, or distribute modified or derivative versions
of the Internet browser.
iii.The transfer of ownership of the Separated Business by
means of a distribution of stock of the Separated Business
to Non-Covered Shareholders of Microsoft, or by other
disposition that does not result in a Covered Shareholder
owning stock in both the Separated Business and the
Remaining Business.
d.Until Implementation of the Plan, Microsoft shall:
i.preserve, maintain, and operate the Operating Systems
Business and the Applications Business as ongoing,
economically viable businesses, with management, sales,
products, and operations of each business held as separate,
distinct and apart from one another as they were on April
27, 2000, except to provide the accounting, management,
and information services or other necessary support
functions provided by Microsoft prior to the entry of this
Final Judgment;
ii.use all reasonable efforts to maintain and increase the sales
and revenues of both the products produced or sold by the
Operating Systems Business and those produced or sold by
the Applications Business prior to the Implementation of the
Plan and to support research and development and business
development efforts of both the Operating Systems
Business and the Applications Business;
iii.take no action that undermines, frustrates, interferes with, or
makes more difficult the divestiture required by this Final
Judgment without the prior approval of the Court; and
iv.file a report with the Court 90 days after entry of this Final
Judgment on the steps Microsoft has taken to comply with
the requirements of this section 1.d.
2.Provisions Implementing Divestiture
a.After Implementation of the Plan, and throughout the term of this
Final Judgment, neither the Operating Systems Business nor the
Applications Business, nor any member of their respective Boards
of Directors, shall acquire any securities or assets of the other
Business; no Covered Shareholder holding securities of either the
Operating Systems Business or the Applications Business shall
acquire any securities or assets of or shall be an officer, director,
or employee of the other Business; and no person who is an
officer, director, or employee of the Operating Systems Business
or the Applications Business shall be an officer, director, or
employee of the other Business.
b.After Implementation of the Plan and throughout the term of this
Final Judgment, the Operating Systems Business and the
Applications Business shall be prohibited from:
i.merging or otherwise recombining, or entering into any joint
venture with one another;
ii.entering into any Agreement with one another under which
one of the Businesses develops, sells, licenses for sale or
distribution, or distributes products or services (other than
the technologies referred to in the following sentence)
developed, sold, licensed, or distributed by the other
Business;
iii.providing to the other any APIs, Technical Information,
Communications Interfaces, or technical information that is
not simultaneously published, disclosed, or made readily
available to ISVs, IHVs, and OEMs; and
iv.licensing, selling or otherwise providing to the other
Business any product or service on terms more favorable
than those available to any similarly situated third party.
Section 2.b.ii shall not prohibit the Operating Systems
Business and the Applications Business from licensing
technologies (other than Middleware Products) to each
other for use in each others' products or services provided
that such technology (i) is not and has not been separately
sold, licensed, or offered as a product, and (ii) is licensed on
terms that are otherwise consistent with this Final
Judgment.
c.Three months after Implementation of the Plan and once every
three months thereafter throughout the term of this Final Judgment,
the Operating Systems Business and the Applications Business
shall file with the Plaintiffs a copy of each Agreement (and a
memorandum describing each oral Agreement) entered into
between them.
d.Throughout the term of this Final Judgment, Microsoft, the
Operating Systems Business and the Applications Business shall
be prohibited from taking adverse action against any person or
entity in whole or in part because such person or entity provided
evidence in this case.
e.The obligations and restrictions set forth in sections 3 and 4 herein
shall, after the Implementation of the Plan, apply only to the
Operating Systems Business.
3.Provisions In Effect Until Full Implementation of the Plan of Divestiture .
The provisions in this section 3 shall remain in effect until the earlier of
three years after the Implementation of the Plan or the expiration of the
term of this Final Judgment.
a.OEM Relations.
i.Ban on Adverse Actions for Supporting Competing
Products. Microsoft shall not take or threaten any action
adversely affecting any OEM (including but not limited to
giving or withholding any consideration such as licensing
terms; discounts; technical, marketing, and sales support;
enabling programs; product information; technical
information; information about future plans; developer tools
or developer support; hardware certification; and permission
to display trademarks or logos) based directly or indirectly,
in whole or in part, on any actual or contemplated action by
that OEM:
1.to use, distribute, promote, license, develop, produce
or sell any product or service that competes with any
Microsoft product or service; or
2.to exercise any of the options or alternatives provided
under this Final Judgment.
ii.Uniform Terms for Windows Operating System Products
Licensed to Covered OEMs. Microsoft shall license
Windows Operating System Products to Covered OEMs
pursuant to uniform license agreements with uniform terms
and conditions and shall not employ market development
allowances or discounts in connection with Windows
Operating System Products. Without limiting the foregoing,
Microsoft shall charge each Covered OEM the applicable
royalty for Windows Operating System Products as set
forth on a schedule, to be established by Microsoft and
published on a web site accessible to plaintiffs and all
Covered OEMs , that provides for uniform royalties for
Windows Operating System Products, except that
1.the schedule may specify different royalties for
different language versions, and
2.the schedule may specify reasonable volume
discounts based upon actual volume of total
shipments of Windows Operating System Products.
Without limiting the foregoing, Microsoft shall afford
Covered OEMs equal access to licensing terms; discounts;
technical, marketing, and sales support; product information;
technical information; information about future plans;
developer tools or developer support; hardware certification;
and permission to display trademarks or logos. The
foregoing requirement insofar as it relates to access to
technical information and information about future plans
shall not apply to any bona fide joint development effort by
Microsoft and a Covered OEM with respect to confidential
matters within the scope of that effort. Microsoft shall not
terminate a Covered OEM's license for a Windows
Operating System Product without having first given the
Covered OEM written notice of the reason for the proposed
termination and not less than thirty days' opportunity to cure.
Microsoft shall not enforce any provision in any Agreement
with a Covered OEM that is inconsistent with this Final
Judgment.
iii.OEM Flexibility in Product Configuration. Microsoft shall
not restrict (by contract or otherwise, including but not
limited to granting or withholding consideration) an OEM
from modifying the boot sequence, startup folder, internet
connection wizard, desktop, preferences, favorites, start
page, first screen, or other aspect of a Windows Operating
System Product to
1.include a registration sequence to obtain subscription
or other information from the user;
2.display icons of or otherwise feature other products
or services, regardless of the size or shape of such
icons or features, or to remove the icons, folders,
start menu entries, or favorites of Microsoft products
or services;
3.display any user interfaces, provided that an icon is
also displayed that allows the user to access the
Windows user interface; or
4.launch automatically any non-Microsoft Middleware,
Operating System or application, offer its own
Internet access provider or other start-up sequence,
or offer an option to make non-Microsoft
Middleware the Default Middleware and to remove
the means of End-User Access for Microsoft's
Middleware Product.
b.Disclosure of APIs, Communications Interfaces and Technical
Information. Microsoft shall disclose to ISVs, IHVs, and OEMs in
a Timely Manner, in whatever media Microsoft disseminates such
information to its own personnel, all APIs, Technical Information
and Communications Interfaces that Microsoft employs to enable
i.Microsoft applications to interoperate with Microsoft
Platform Software installed on the same Personal
Computer, or
ii.a Microsoft Middleware Product to interoperate with
Windows Operating System software (or Middleware
distributed with such Operating System) installed on the
same Personal Computer, or
iii.any Microsoft software installed on one computer (including
but not limited to server Operating Systems and operating
systems for handheld devices) to interoperate with a
Windows Operating System (or Middleware distributed with
such Operating System) installed on a Personal Computer.
To facilitate compliance, and monitoring of compliance, with the
foregoing, Microsoft shall create a secure facility where qualified
representatives of OEMs, ISVs, and IHVs shall be permitted to
study, interrogate and interact with relevant and necessary portions
of the source code and any related documentation of Microsoft
Platform Software for the sole purpose of enabling their products
to interoperate effectively with Microsoft Platform Software
(including exercising any of the options in section 3.a.iii).
c.Knowing Interference with Performance. Microsoft shall not take
any action that it knows will interfere with or degrade the
performance of any non-Microsoft Middleware when
interoperating with any Windows Operating System Product
without notifying the supplier of such non-Microsoft Middleware in
writing that Microsoft intends to take such action, Microsoft's
reasons for taking the action, and any ways known to Microsoft
for the supplier to avoid or reduce interference with, or the
degrading of, the performance of the supplier's Middleware.
d.Developer Relations. Microsoft shall not take or threaten any
action affecting any ISV or IHV (including but not limited to giving
or withholding any consideration such as licensing terms; discounts;
technical, marketing, and sales support; enabling programs; product
information; technical information; information about future plans;
developer tools or developer support; hardware certification; and
permission to display trademarks or logos) based directly or
indirectly, in whole or in part, on any actual or contemplated action
by that ISV or IHV to
i.use, distribute, promote or support any Microsoft product or
service, or
ii.develop, use, distribute, promote or support software that
runs on non-Microsoft Middleware or a non-Microsoft
Operating System or that competes with any Microsoft
product or service, or
iii.exercise any of the options or alternatives provided under
this Final Judgment.
e.Ban on Exclusive Dealing. Microsoft shall not enter into or enforce
any Agreement in which a third party agrees, or is offered or
granted consideration, to
i.restrict its development, production, distribution, promotion
or use of, or payment for, any non-Microsoft Platform
Software,
ii.distribute, promote or use any Microsoft Platform Software
exclusively,
iii.degrade the performance of any non-Microsoft Platform
Software, or
iv.in the case of an agreement with an Internet access
provider or Internet content provider, distribute, promote or
use Microsoft software in exchange for placement with
respect to any aspect of a Windows Operating System
Product.
f.Ban on Contractual Tying. Microsoft shall not condition the
granting of a Windows Operating System Product license, or the
terms or administration of such license, on an OEM or other
licensee agreeing to license, promote, or distribute any other
Microsoft software product that Microsoft distributes separately
from the Windows Operating System Product in the retail channel
or through Internet access providers, Internet content providers,
ISVs or OEMs, whether or not for a separate or positive price.
g.Restriction on Binding Middleware Products to Operating System
Products. Microsoft shall not, in any Operating System Product
distributed six or more months after the effective date of this Final
Judgment, Bind any Middleware Product to a Windows Operating
System unless:
i.Microsoft also offers an otherwise identical version of that
Operating System Product in which all means of End-User
Access to that Middleware Product can readily be removed
(a) by OEMs as part of standard OEM preinstallation kits
and (b) by end users using add-remove utilities readily
accessible in the initial boot process and from the Windows
desktop; and
ii.when an OEM removes End-User Access to a Middleware
Product from any Personal Computer on which Windows is
preinstalled, the royalty paid by that OEM for that copy of
Windows is reduced in an amount not less than the product
of the otherwise applicable royalty and the ratio of the
number of amount in bytes of binary code of (a) the
Middleware Product as distributed separately from a
Windows Operating System Product to (b) the applicable
version of Windows.
h.Agreements Limiting Competition. Microsoft shall not offer, agree
to provide, or provide any consideration to any actual or potential
Platform Software competitor in exchange for such competitor's
agreeing to refrain or refraining in whole or in part from
developing, licensing, promoting or distributing any Operating
System Product or Middleware Product competitive with any
Windows Operating System Product or Middleware Product.
i.Continued Licensing of Predecessor Version. Microsoft shall,
when it makes a major Windows Operating System Product
release (such as Windows 95, OSR 2.0, OSR 2.5, Windows 98,
Windows 2000 Professional, Windows "Millennium," "Whistler,"
"Blackcomb," and successors to these), continue for three years
after said release to license on the same terms and conditions the
previous Windows Operating System Product to any OEM that
desires such a license. The net royalty rate for the previous
Windows Operating System Product shall be no more than the
average royalty paid by the OEM for such Product prior to the
release. The OEM shall be free to market Personal Computers in
which it preinstalls such an Operating System Product in the same
manner in which it markets Personal Computers preinstalled with
other Windows Operating System Products.
4.Internal Antitrust Compliance. This section shall remain in effect
throughout the term of this Final Judgment, provided that, consistent with
section 2.e, this section shall not apply to the Applications Business after
the Implementation of the Plan.
a.Within 90 days after the effective date of this Final Judgment,
Microsoft shall establish a Compliance Committee of its corporate
Board of Directors, consisting of not fewer than three members of
the Board of Directors who are not present or former employees
of Microsoft.
b.The Compliance Committee shall hire a Chief Compliance Officer,
who shall report directly to the Compliance Committee and to the
Chief Executive Officer of Microsoft.
c.The Chief Compliance Officer shall be responsible for
development and supervision of Microsoft's internal programs to
ensure compliance with the antitrust laws and this Final Judgment.
d.Micr