Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. The Department’s essential law enforcement and national security functions will continue. Please refer to the Department of Justice’s contingency plan for more information.

Remedies In High-Tech Industries

This document is available in three formats: this web page (for browsing content), PDF (comparable to original document formatting), and PowerPoint. To view the PDF you will need Acrobat Reader, which may be downloaded from the Adobe site. For an official signed copy, please contact the Antitrust Documents Group.

Microsoft logo

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

Microsoft logo

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

Microsoft logo

Slide 4


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

Quadrant displaying market outcome


Microsoft logo

Slide 5

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?

Microsoft logo

Slide 6

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 particulary challenging for information goods

Microsoft logo

Slide 7

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

Microsoft logo

Slide 8

Large Microsoft logo

Updated June 25, 2015

Was this page helpful?

Was this page helpful?
Yes No