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Remedies in High-Tech Industries

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Slide 1

Remedies in High-Tech Industries

David A.Heiner
Vice President, Deputy General Counsel (Antitrust)
Microsoft Corporation

March 28, 2007

Presented at DOJ/FTC Hearings on Single Firm Conduct

Slide 2

Microsoft Remedies

1994 CD and EU
  • Licensing to computer manufacturers
2001 Consent Decree and
Litigated Final Judgment
  • Software integration, interoperability
Competitor Lawsuits
  • Damages, some conduct relief
Consumer Class Actions
  • Damages
European Union Decision
March 2004
  • Software integration, interoperability
Korean FTC Decision
February 2006
  • Software integration

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Slide 3

Overall Approach

Focus on creating or preserving competitive opportunities, rather than limiting defendant痴 efforts to deliver consumer value

U.S. Consent Decree

  • Focused on creating competitive opportunities
  • No ban on including new functionality (but governed by Rule of Reason)
  • Consumers benefit from ability to choose integrated approach or separate programs—or both
  • Today: Broad distribution of competing software on new Windows PC

EU Decision

  • Focused on removing useful functionality from Windows (Windows XP N)
  • No uptake by any computer manufacturer
  • Costs imposed, but little apparent benefit to anyone

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Slide 4


Aim to create competitive opportunities, rather than engineer particular market outcomes

Quadrant displaying market outcome


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Assess Remedy and Liability Together

Careful consideration of remedy at outset may inform liability analysis, speed resolution

Windows Inegration Legal Analysis

  • May create challenges for competitors, yet...
  • Benefits for software developers, consumers; and
  • Long history of product improvement through integration across many product categories


  • Seemingly impossible to fashion appropriate remedy to limit integration over time
  • Renders cases difficult of impossible to settle


  • Unlawful in Europe & Korea to fail to offer product (Windows XP N) for which there is no appreciable consumer demand?

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Type of Remedy

Legal process generally best suited to contractual relief


  • Purview of lawyers
  • Relatively easy to monitor (for defendants and enforcers)

Product Design

  • May require considerable technical expertise to device & monitor remedy
  • Difficult for lawyers to assess issues that may arise, even with expert help
  • Agency lawyers likely to get drawn into detailed design decisions

Technology Sharing

  • Technological complexity may lead to enforcement complexity
  • Pricing may be particularly challenging for information goods

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Cross-Border Considerations

High-tech markets often global in nature

Agency Cooperation

  • Greater coordination on remedies with global reach
  • Due respect for comity principles


  • Central value proposition: enabling compatibility through uniformity
  • Value threatened by varying approaches to integration issue

Compulsory Licensing

  • Most onerous legal regime becomes de facto legal rule worldwide

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Slide 8

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Updated January 5, 2024