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To: Harvey Allen who wrote (16113)	1/15/1998 11:28:00 AM
From: Gerald R. Lampton	Read Replies (3) \| Respond to of 24154

>Are you saying there is no problem to be solved? >No abuses to be remedied? No, I'm not saying that at all. All I'm saying is that the method DOJ has chosen to try to solve the problem at hand will not work. The "problem" I think the DOJ is trying to redress is Microsoft's propensity to eliminate competition by integrating the functionality which corresponds to its competitors' products into its operating system. The "solution" the DOJ has chosen is the 1995 Consent Decree, which was negotiated to deal with a set of completely different problems and which explicitly authorizes Microsoft to create "integrated products." In other words, I would argue that the Consent Decree expressly authorizes Microsoft to engage in the behavior that is at the root of the "problem" the DOJ is trying to redress here. Notice how the judge gets around that in his original order imposing the preliminary injunction. He says that Microsoft's unfettered discretion to market "integrated products" under the Consent Decree is constrained, not by the Consent Decree itself, but by general principles of antitrust law. Agreements that violate the antitrust laws are, after all, void. The problem is that DOJ has yet to prove that Micrsoft's conduct of integrating its competitors' products into its operating system violates general principles of antitrust law. So, I would argue that the Consent Decree is no basis for doing what the judge is doing here. DOJ will not get the relief it seeks by "enforcing the Consent Decree." And DOJ is not entitled to general antitrust relief at this point because it has not proven a violation of general antitrust law. Maybe Professor Lessig will fix this little problem for them, I don't know, but as of right now, as I see it, they have not proven their case. I'm not privy to the historical events, but it seems to me that back in 1994-95, the DOJ had a choice. It could have followed the long, hard road of proceeding with its complaint and proving its case. That would have taken years and cost millions of dollars. So, or so it seems to me, DOJ took the quick, easy win of the Consent Decree, the "integrated product" language being the price it had to pay to get its Decree. And, I could be wrong again, but I don't think the Consent Decree is the proper vehicle for the judge and professor Lessig to try to bring the case the DOJ chose not to bring in 1995. If that's what they are doing, they are building a house of cards. If DOJ wants to bring a tying case, it should file a new complaint or amend the one it has on file. Then it can go through the hoops and get relief grounded on the concrete foundation of antitrust law instead of the foundation of sand it has now in the Consent Decree. The DOJ might seek inspiration from that old brokerage house slogan: "We win cases the old fashioned way. We bring them."