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To: micromike who wrote (14877)	12/13/1997 12:58:00 AM
From: Gerald R. Lampton	Respond to of 24154

> MS now has to play the >game by the rules or at least cheat better and the DOJ can't be bought or bullied >and is on their case finally. Having FINALLY read the Order, I have to agree with you. This order is much stronger than I initially thought. The judge basically said that DOJ has a high likelihood of success on the merits and, on the issue of the NDAs he said he was denying relief without prejudice (meaning they can ask for it again) because, at present, there is no evidence "of record" that anyone has been deterred from reporting to the Government. After six months of discovery, you can bet that DOJ will come up with some evidence to plug this hole. We'll have to see. It is also clear that the judge will look beyond the intent of the parties to concepts of antitrust law in interpreting the agreement. I doubt Microsoft has played its last card on this issue, but it looks to be a much closer ball game than I originally thought. Another aspect of this that is convincing me to reevaluate my views is the Special Master. It appears this Lawrence Lessig is no conservative slouch. On the contrary, a cursory review of some of his published articles reveals that he is a very thoughtful, articulate constitutional law scholar who will probably give less weight to Microsoft's "original intent" arguments than others might. (Both of the references I've seen to Microsoft in his writings so far seem to me, at least, to be somewhat negative.) For those who, like me, want to read the whole order, here it is: news.com One last comment: In the end notes, the judge describes a "tying arrangement" as follows: A tying arrangement will generally be treated as per se unlawful, and thus prohibited without proof of an unreasonable anticompetitive effect, if: (1) two separate products or services are involved; (2) the sale or agreement to sell one product or service is conditioned on the purchase of another; (3) the seller has sufficient economic power in the market for the tying product to enable it to restrain trade in the market for the tied product; and (4) a not insubstantial amount of interstate commerce in the tied product is affected. See Fortner Eters. 394 U.S. at 498-99. IE/Windows sure looks like a tying arrangement, except that there is no "sale" of the tied product (IE). They give it away. I'm not sure how this affects the analysis. Just an issue worth exploring.