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To: Charles Hughes who wrote (22063)	12/9/1998 2:07:00 AM
From: Gerald R. Lampton	Read Replies (1) \| Respond to of 24154

Go back and read Bearded's sentence as I have reformulated it: the Microsoft programmer will say "yes, it makes maintainability harder, but the resultant code runs 1.732% faster, and we decided that consumers think that little extra bit of speed is worth the price (i.e., the trade-off) of harder maintainability." The sentence consists of two parts: the part about the technical tradeoff between speed and maintainability and the part about consumers preferring one more than the other. If either one of those parts is false, then the rationale for Microsoft to bundle collapses. The falsity of the first part, about the technical issue, is hard to prove, but doable with the right evidence. You just need to prove, to what standard I'm not sure, but definitely less than the "beyond a reasonable doubt" standard of a criminal trial, that Microsoft's tendered performance improvement/trade-off for the technical configuration in question is false, and is just a sham or pretext to cover up their true motivation, which is the intent to eliminate competition. By talking in terms of plausibility, the Court of Appeals may be saying that, if Microsoft can tender credible evidence that its claimed technical advantage is true, then it wins, even if the preponderance of the evidence would favor the government. The falsity of the second part, about consumer preference is extremely difficult, perhaps even impossible, to prove. I would argue that, if Microsoft can show that its configuration of tradeoffs is preferred by even a single consumer, then it is entitled to try to market its product and fail. It seems to me that any other, higher, standard of proof required of Microsoft would compel them to come up with all kinds of consumer surveys and other BS studies to shield themselves from antitrust liability every time they want to add a feature to one of their products. I think that would be a mistake. In our free enterprise system, anyone should be allowed to run any product they want up the flagpole and see if someone salutes. If consumers don't like Microsoft's claimed improvements, then the product will flop and Microsoft's attempt at market domination through integration will fail. Let me close this by saying that this is totally spinning on my part, strictly my own opinion. It is certainly not the law, and to learn what the law will be, we will have to wait and see how it plays out.