Software Development as an Antitrust Remedy: Lessons from the Enforcement of the \u3ci\u3eMicrosoft\u3c/i\u3e Communications Protocol Licensing Requirement

An important provision in each of the final judgments in the government\u27s Microsoft antitrust case requires Microsoft to make available to software developers the communications protocols that Windows client operating systems use to interoperate natively (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft\u27s server operating systems interoperate with Windows clients. The long-term goal is to preserve, in the network context, the platform threat to the Windows monopoly that was the focus of the government\u27s theory of monopolization. The platform threat was the possibility that middleware, like Netscape\u27s browser or Sun\u27s Java technologies, might evolve into a platform for other applications and thus erode the applications barrier to entry that protects Windows. This was the threat that the courts held Microsoft illegally thwarted by its contracts and product design. The protocol licensing provision rests on the assumption that middleware running on servers might also pose a platform threat to the Windows monopoly of client operating systems. District Judge Kollar-Kotelly, in entering the final judgments, singled out this provision as the key to assuring that the other provisions do not become irrelevant as more applications move to servers in local networks or the Internet. The provision has, however, proven to be by far the most difficult to implement. We argue in this Article that the provision has not accomplished its purpose and that courts and policymakers can draw some hard lessons from the experience