In fact, Microsofts alteration or proprietary extension of industry standards more closely resembles conduct for which Microsoft was absolved of liability; the appellate court absolved Microsoft of liability for its development of a Java implementation incompatible with Suns Java Implementation.
The Court concludes that server/network computing has the capacity to function in a role akin to middleware, and therefore, over Microsofts objection, the Court addresses this technology in a portion of the remedy.
Plaintiffs have advanced a remedy that requires the removal of Windows software code. Yet, Plaintiffs remedy proposal does not offer a reasonable way for Microsoft to separate the code in order to comply with the code removal requirements therein. More importantly, the evidence does not indicate that the removal of software code is beneficial from an economic perspective. The Court also finds that the forced removal of software code from the Windows operating system will disrupt the industry, harming both ISVs and consumers. […] To the contrary, the evidence presented to the Court indicates that the ability to remove end-user access to any commingled functionality would sufficiently address the anticompetitive aspect of the conduct and would prove far less disruptive to consumers and industry participants.
…the Courts order of remedy will not prohibit Microsofts practice of awarding “market development allowances, programs, or other discounts” (“MDPs”), provided that the award of such benefits is based upon reasonable, objective criteria, which are enforced uniformly and without discrimination.
The appellate court could not have been clearer in its admonition that this Courts decree should be “tailored to fit the wrong creating the occasion for the remedy.” Yet despite this admonition, in their request for relief, Plaintiffs have shown little respect for the parameters of liability that were so precisely delineated by the appellate court. In many instances, therefore, this Court has had little choice but to reject Plaintiffs remedial suggestions on the grounds that they are unjustifiably in conflict with the imposition as well as the rejection of liability in this case. Additionally, the Court observes that a number of the remedial provisions proposed by Plaintiffs would require drastic alterations to Microsofts products, as well as to aspects of its business model which do not involve illegal conduct. Plaintiffs present little, if any, legitimate justification for these remedies, and in most instances, these proposals are not supported by any economic analysis.[…] Certain of Microsofts competitors appear to be those who most desire these provisions and, concomitantly, are the likely beneficiaries of these provisions, while other competitors in the relevant market would not necessarily benefit.
Plaintiffs are correct that Microsoft has a tendency to minimize the effects of its illegal conduct. Yet this minimization, however frustrating, does not require a remedy which prodigiously exceeds even an expansive view of the illegal conduct. The remedy in this case addresses the conduct found by the district and appellate courts to violate the antitrust laws and is imposed without regard to Microsofts minimalist view of its own illegal conduct. More importantly, the behavioral remedy imposed by this Court neither bends nor softens simply because Microsoft refuses to acknowledge the extent of its own wrongdoing.