Api 1104 Code Book 21st Edition
As Professor Arrow writes, \"[T]he Commission could have been more aggressive and precluded preemption by (a) being more diligent about getting the FTC's commitments, (b) pointing out what it would do, not just what it might do, (c) obtaining a preliminary injunction against it, and (d) asking to have its commitments carried out.\" Id. (footnotes omitted). Indeed, several of these remedies emerged later as a result of the Commission's action. Section II.E of the Commission's Interim Final Judgment of April 22, 1998, for example, reflected the Commission's belief that it could remove the monopolistic IE code from the Windows operating system, but deliberately chose not to do so, stating that it preferred to allow Microsoft to continue binding IE to Windows.
In short, this Court's failure to bar the removal of Microsoft middleware code from its desktop operating system has no place in a decree that seeks to protect middleware and competitive applications from exclusionary practices. While it is not only Windows operating system software that is protected by this provision, the middleware-related portions of the decree are crystal clear in their exclusion of middleware applications.
The proposal to require Microsoft to give competitively neutral access to Windows source code causes severe problems. Without any sort of code inspection, the only way to know if a customer is using a modified version of Windows would be to see the OEM's practices. But Microsoft would have an incentive to delay any code inspection or access to source code to reduce the risk of providing customers with a competitive product. Moreover, it would be no easy task to prove that any OEM's version of Windows was competitively neutral, because Microsoft would be given the sole power to select ISVs and OEMs. A court would therefore have little choice but to allow Microsoft to make the decision.