UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA 


                ____________________________________
                                                    )
                      UNITED STATES OF AMERICA,     )
                                                    )
                            Plaintiff,              )
                                                    )
                                v.                  )   Civil Action No. 98-1232 (TPJ)
                                                    )
                       MICROSOFT CORPORATION,       )
                                                    )
                            Defendant.              )
                ____________________________________)
                                                    )
                    STATE OF NEW YORK, ex rel.      )
                  Attorney General ELIOT SPITZER,   )
                             et al.,                )
                                                    )
                         Plaintiffs and             )
                     Counterclaim-Defendants,       )
                                                    )
                                v.                  )   Civil Action No. 98-1233 (TPJ)
                                                    )
                      MICROSOFT CORPORATION,        )
                                                    )
                         Defendant and              )
                     Counterclaim-Plaintiff.        )
                ____________________________________)


FINDINGS OF FACT


These consolidated civil antitrust actions alleging violations of the Sherman Act, §§ 1 and 2, and various state statutes by the defendant Microsoft Corporation, were tried to the Court, sitting without a jury, between October 19, 1998, and June 24, 1999. The Court has considered the record evidence submitted by the parties, made determinations as to its relevancy and materiality, assessed the credibility of the testimony of the witnesses, both written and oral, and ascertained for its purposes the probative significance of the documentary and visual evidence presented. Upon the record before the Court as of July 28, 1999, at the close of the admission of evidence, pursuant to Fed. R. Civ. P. 52(a), the Court finds the following facts to have been proved by a preponderance of the evidence. The Court shall state the conclusions of law to be drawn therefrom in a separate Memorandum and Order to be filed in due course.


  1. BACKGROUND

  2. THE RELEVANT MARKET

    1. Demand Substitutability

      1. Server Operating Systems

      2. Non-Intel-Compatible PC Operating Systems

      3. Information Appliances

      4. Network Computers

      5. Server-Based Computing Generally

      6. Middleware

    2. The Possibility of Supply Responses

  3. MICROSOFT'S POWER IN THE RELEVANT MARKET

    1. Market Share

    2. The Applications Barrier to Entry

      1. Description of the Applications Barrier to Entry

      2. Empirical Evidence of the Applications Barrier to Entry

        1. OS/2 Warp

        2. The Mac OS

        3. Fringe Operating Systems

      3. Open-Source Applications Development

      4. Cloning the 32-Bit Windows APIs

    3. Viable Alternatives to Windows

    4. Price Restraint Posed by Microsoft's Installed Base

    5. Price Restraint Posed by Piracy

    6. Price Restraint Posed by Long-Term Threats

    7. Significance of Microsoft's Innovation

    8. Microsoft's Pricing Behavior

    9. Microsoft's Actions Toward Other Firms

  4. THE MIDDLEWARE THREATS

    1. The Netscape Web browser

    2. Sun's Implementation of the Java Technologies

    3. Other Middleware Threats

  5. MICROSOFT'S RESPONSE TO THE BROWSER THREAT

    1. Microsoft's Attempt to Dissuade Netscape from Developing Navigator as a Platform

    2. Withholding Crucial Technical Information

    3. The Similar Experiences of Other Firms in Dealing with Microsoft

      1. Intel

      2. Apple

      3. RealNetworks

      4. IBM

    4. Developing Competitive Web Browsing Software

    5. Giving Internet Explorer Away and Rewarding Firms that Helped Build Its Usage Share

    6. Excluding Navigator from Important Distribution Channels

      1. The Importance of the OEM and IAP Channels

      2. Excluding Navigator from the OEM Channel

        1. Binding Internet Explorer to Windows

          1. The Status of Web Browsers as Separate Products

          2. Microsoft's Actions

          3. Lack of Justification

          4. The Market for Web Browsing Functionality

        2. Preventing OEMs from Removing the Ready Means of Accessing Internet Explorer and from Promoting Navigator in the Boot Sequence

        3. Pressuring OEMs to Promote Internet Explorer and to not Pre-Install or Promote Navigator

        4. Effect of Microsoft's Actions in the OEM Channel

      3. Excluding Navigator from the IAP Channel

        1. The Internet Explorer Access Kit Agreements

        2. The Referral Server Agreements

        3. The Online Services Folder Agreements

          1. AOL

          2. Other Online Services

        4. Effect of Microsoft's Actions in the IAP Channel

      4. Inducing ICPs to Enhance Internet Explorer's Usage Share at Navigator's Expense

      5. Directly Inducing ISVs to Rely on Microsoft's Browsing Technologies Rather than APIs Exposed by Navigator

      6. Foreclosing Apple as a Distribution Channel for Navigator

    7. Microsoft's Success in Excluding Navigator from the Channels that Lead Most Efficiently to Browser Usage

    8. The Success of Microsoft's Effort to Maximize Internet Explorer's Usage Share at Navigator's Expense

      1. The Change in the Usage Shares of Internet Explorer and Navigator

      2. The Cause of the Change in Usage Shares

    9. The Success of Microsoft's Effort to Protect the Applications Barrier to Entry from the Threat Posed by Navigator

  6. MICROSOFT'S RESPONSE TO THE THREAT POSED BY SUN'S IMPLEMENTATION OF JAVA

    1. Creating a Java Implementation for Windows that Undermined Portability and Was Incompatible with Other Implementations

    2. Inducing Developers to Use the Microsoft Implementation of Java Rather than Sun-Compliant Implementations

    3. Thwarting the Expansion of the Java Class Libraries

    4. The Effect of Microsoft's Efforts to Prevent Java from Diminishing the Applications Barrier to Entry

  7. THE EFFECT ON CONSUMERS OF MICROSOFT'S EFFORTS TO PROTECT THE APPLICATIONS BARRIER TO ENTRY 




__________/s/__________
Thomas Penfield Jackson
U.S. District Judge
Date: November 5, 1999