Measuring compliance with compulsory licensing remedies in the american microsoft case

Antitrust Law Journal

Volumn 76, Issue 1, 2009, Pages 239-269

  Page, William H ^a   Childers, Seldon J ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 67649218576     PISSN: 00036056     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (239)

1. There are two final judgments, a consent decree negotiated by the United States (joined by some of the state plaintiffs) and a judgment entered by the court for a group of states that opposed the consent decree. United States v. Microsoft Corp., No. 98-1232, 2006 WL 2882808, § IV. A (D. D. C. Sept. 7, 2006) (amending the United States and settling states' final judgment entered Nov. 12, 2002) (Consent Decree 2006), available at http://www.usdoj.gov/atr/ cases/f218300/218339.pdf;
2. New York v. Microsoft Corp., No. 98-1233, 2006
3. WL 3949168, § IV. B (D. D. C. Sept. 21, 2006) (amending the nonsettling states' final judgment entered Nov. 1, 2002). The judgments are very similar. For convenience, in the remainder of the article, we will cite only to the Consent Decree and the relevant section number. Because of the many opinions in the Microsoft litigation, the custom of numbering opinions by Roman numeral for citation (e.g., Microsoft V) is impractical. Consequendy, we adopt the citation strategy of William H. Page & John E. Lopatka, The Microsoft Case: Antitrust, High Technology, and Consumer Welfare 203-42 (2007)
4. which includes the court, date, and a citation of the volume and page number (e.g., D. D. C. States Remedy 2002, 224 F. Supp. 2d at 269).
5. New York v. Microsoft Corp., 531 F. Supp. 2d 141, 144 (D. D. C. 2008) (D. D. C. Decree Extension 2008).
6. In April 2009, the parties agreed to extend the "Surviving Provisions" of the final judgments, including § III. E, at least until May 12, 2011. Joint Motion to Modify Final Judgment and Supporting Memorandum of Points and Authorities, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Apr. 16, 2009), available at http://www.usdoj.gov/atr/cases/f244900/244921. pdf.
7. Judge Kollar-Kotelly agreed to the extension. Second Modified Final Judgment, United States v. Microsoft Corp., No. 98-1232, § v. A (D. D. C. Apr. 22, 2009), available at http://www.usdoj.gov/atr/cases/f245100/245110.pdf.
8. For discussion of policy issues in compulsory licensing of IP as an antitrust remedy
9. see Colleen Chien, Cheap Drugs at What Price to Innovation: Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation?, 18 Berkeley Tech. L. J. 853 (2003) ;
10. Daniel Kanter, IP and Compulsory Licensing on Both Sides of the Atlantic-An Appropriate Antitrust Remedy or a Cutback on Innovation, 2006 Eur. Competition L. Rev. 27 (7), 351;
11. Lawrence Schlam, Compulsory Royalty-Free Licensing as an Antitrust Remedy for Patent Fraud: Law, Policy and the Patent-Antitrust Interface Revisited, 7 Cornell J. L. & Pub. Pol'y 467 (1998).
12. Consent Decree 2006, supra note 1, § III. E.
13. The moving states included some states from the original New York Group, which joined the United States in the setdement with Microsoft, and some from the California Group, which did not setde.
14. Id. at 143 n. 2. The California movants were California, Connecticut, Iowa, Kansas, Minnesota, Massachusetts, and the District of Columbia. The New York Movants were New York, Maryland, Louisiana, and Florida.
15. Id.
16. Brief of the United States as Amicus Curiae in Opposition to the Motions to Extend the States' Final Judgments, New York v. Microsoft Corp., No. 98-1233 (D. D. C. filed Nov. 9, 2007), available at http://www.usdoj.gov/atr/cases/ f227500/227585.pdf. The disagreement among the plaintiffs, once again, casts doubt on the merits of fragmendng authority to enforce national antitrust policy.
17. See Pace & Lopatka, supra note 1, at 246.
18. The motions and the eventual extension did not include § III. B, which required Microsoft to license Windows to computer manufacturers on uniform terms, with certain exceptions. D. D. C. Decree Extension 2008, 531 F. Supp. at 144 n. 5.
19. Id. at 144, 184. She did not find that Microsoft's actions constituted "a pattern of willful and systematic violations."
20. Id. at 167
21. (quoting Consent Decree 2006, supra note 1, §V. B).
22. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 181.
23. Id. at 144, 163, 170, 175 (twice), 181, 183 n. 34, 184.
24. Scott Kieff, IP Transactions: On the Theory & Practice of Commercializing Innovation, 42 Hous. L. Rev. 727, 731 (2005) (quoting The Oxford Dictionary of Quotations 716 (Angela Partington ed., 4th ed. 1996) (attributing the saying to Voltaire, Dictionnaire Philosophique (1770))).
25. United States v. Microsoft Corp., 253 F.3d 34, 49 (D. C. Cir. 2001) (D. C. Circuit 2001).
26. Id. at 53-54.
27. Id. at 60-74 (describing measures affecting Netscape) ;
28. id. at 74-78 (describing measures aimed at Java).
29. Id at 75, 80-81.
30. Id. at 98.
31. Id. at 105-07.
32. Competitive Impact Statement, United States v. Microsoft Corp., No. 98-1232, 8-9 (D. D. C. Nov. 15, 2001), available at http://www.usdoj.gov/atr/ cases/f222900/222994.pdf.
33. New York v. Microsoft Corp., 209 F. Supp. 2d 132 (D. D. C. 2002).
34. United States v. Microsoft Corp., 215 F. Supp. 2d 1 (D. D. C. 2002).
35. New York v. Microsoft Corp., 209 F. Supp. 2d 132 (D. D. C. 2002).
36. United States v. Microsoft Corp., 231 F. Supp. 2d 144, 192 (D. D. C. 2002) (D. D. C. Tunney Act 2002).
37. New York v. Microsoft Corp., 224 F. Supp. 2d 76, 266-77 (D. D. C. 2002)
38. (D. D. C. States Remedy 2002), aff'd sub nam. Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D. C. Cir. 2004) (D. C. Circuit 2004 Remedy).
39. See supra note 1.
40. D. C. Circuit 2004 Remedy, 373 F.3d at 1224, 1250.
41. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 150-54.
42. The decree defines various categories of Microsoft and non-Microsoft middleware. Consent Decree 2006, supra note 1, §§ VI J, VI. K, VI. M, VI. N. The decree also preserves computer manufacturers' flexibility to delete Microsoft products and to install and enable access to those of rivals.
43. Id. §§ III. C, III. H.
44. Id. §§ III. F, III. G.
45. For more discussion, see Page & Lopatka, supra note 1, at 71-76.
46. Id. at 77 (discussing actions that may have deceived developers into writing to the Windows-specific version of Java).
47. Consent Decree 2006, supra note 1, § III. D.
48. D. D. C. States Remedy 2002, 224 F. Supp. 2d at 173.
49. This section requires Microsoft to license its intellectual property with reasonable and nondiscriminatory royalties and limitations.
50. Id. at 269.
51. William H. Page & Seldon J. Childers, Software Development as an Antitrust Remedy: Lessons from the Enforcement of theMicrosoft Communications Protocol Licensing Requirement, 14 Mich. Telecomm. & Tech. L. Rev. 77 (2007), available at http://www.mttlr.org/volfourteen/page.pdf.
52. D. D. C. 2002 Tunney Act, 231 F. Supp. 2d at 189 (observing that "this aspect of the remedy plainly exceeds the scope of liability") ;
53. D. C. Circuit 2004 Remedy, 373 F.3d at 1223.
54. Page & Childers, supra note 35, at 93.
55. For a Microsoft employee's investigation of this charge
56. see Adam Barr, DOS Ain't Done til Lotus Won't Run? (Aug. 1, 2005), http://www.proudlyserving.com/archives/2005/08/dos-aint-done-t.html.
57. Gary Reback & Susan Creighton, White Paper Regarding Recent Anticompetitive Conduct of Microsoft Corporation (July 1996) (unpublished manuscript, on file with authors). For discussion
58. see Page & Lopatka, supra note 1, at 28-29.
59. Page & Childers, supra note 35, at 95-96.
60. See Ken Auletta, World War 3.0: Microsoft and Its Enemies 340-62 (2001).
61. Page & Childers, supra note 35, at 96-103.
62. D. D. C. Tunney Act 2002, 231 F. Supp. 2d at 189-90.
63. D. D. C. States Remedy 2002, 224 F. Supp. 2d at 129 (observing that § III. E keeps open "the new model of the 'platform threat'").
64. D. D. C. Tunney Act 2002, 231 F. Supp. 2d at 202 (holding that § III. E is "appropriately forward-looking, " and "closely connected with the theory of liability in this case").
65. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 181.
66. Consent Decree 2006, supra note 1, § IV. B. 6-8.
67. Id. § IV. B.2.
68. Id. § IV. B.8.a.
69. Id. § IV. B.8.e.
70. Id. § IV. B.8.d.
71. Id. § IV. B.8.b.
72. Id. § IV. B.8. C. Unlike the final judgment proposed to the trial judge, the consent decree does not require the disclosure of Windows source code to third parties. Judge Kollar-Kotelly held that this provision allowed all of the access necessary to the legitimate concerns of the decree.
73. D. D. C. Tunney Act 2002, 231 F. Supp. 2d at 193.
74. The decree disqualifies individuals with ties to Microsoft or its opponents. Consent Decree 2006, supra note 1, § IV. B.1. It provides that each side will select a member and those two will select the third, all to serve five-year, renewable terms.
75. Id. § IV. B. 3-4.
76. D. D. C. 2002 Tunney Act, 231 F. Supp. 2d at 199.
77. D. D. C. States' Remedy 2002, 224 F. Supp. 2d at 182.
78. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 157 n. 25.
79. NYNEX Corp. v. Discon, Inc., 525 U. S. 128, 137 (1998)
80. (observing that "the freedom of the individual right to contract when not unduly or improperly exercised [is] the most efficient means for the prevention of monopoly") (quoting Standard Oil Co. v. United States, 221 U. S. 1, 62 (1911)) ;
81. United States v. Colgate & Co., 250 U. S. 300, 307 (1919) (observing that a trader has a right "freely to exercise his own independent discretion as to parties with whom he will deal" absent an intent to monopolize).
82. William H. Page, Mandatory Contracting Remedies in the American and European Microsoft Cases, 75 Antitrust L. J. 787 (2009) ;
83. John E. Lopatka & William H. Page, Bargaining and Monopolization: In Search of the "Boundary of Section 2 Liability" Between Aspen and Trinko, 73 Antitrust L. J. 115, 124-26 (2005).
84. Verizon Commc'ns Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U. S. 398, 408 (2004).
85. Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L. J. 841, 852 (1989).
86. For criticism of Areeda's approach, see Spencer Weber Waller, Areeda, Epithets, and Essential Facilities, 2008 Wis. L. Rev. 359.
87. Trinko, 540 U. S. at 409.
88. Compare Covad Commc'ns Co. v. BellSouth Corp., 374 F.3d 1044, 1049 (11th Cir. 2004) ("Trinko now effectively makes the unilateral termination of a voluntary course of dealing a requirement for a valid refusal-to-deal claim under Aspen. ")
89. with Helicopter Transp. Servs., Inc. v. Erickson Air-Crane Inc., No. 06-3077-PA, 2008 WL 151833, at * 9 n. 10 (D. Or. Jan. 14, 2008) ("Trinko said no such thing.").
90. If, despite the considerations underlying the presumptive right to refuse to deal, the court finds that a refusal to deal is unlawful, then compulsory licensing may be an appropriate remedy. For discussion of this issue
91. see U. S. Dep't of Justice & Fed. Trade Comm'n, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition 22-23 (2007), http://www.usdoj.gov/atr/public/hearings/ip/222655.pdf. In Microsoft, none of the proven violations involved a refusal to provide compatibility information.
92. See D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 164.
93. Trinko, 540 U. S. at 410.
94. One exception is the Samba project, which uses protocol analysis to create products that emulate Microsoft server operating systems. William H. Page & Seldon J. Childers, Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License, 102 Nw. U. L. Rev. Colloquy 332, 335 (2008), available at http://www.law.northwestern.edu/lawreview/colloquy/ 2008/16/LRColl2008n16Page&Childers.pdf.
95. D. D. C. States Remedy 2002, 224 F. Supp. 2d at 122.
96. D. C. Circuit 2004 Remedy, 373 F.3d at 1223.
97. Judge Kollar-Kotelly identified six enforcement issues that have arisen apart from § III. E. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 158.
98. Page & Childers, supra note 35, at 112-26.
99. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 158-64.
100. U. S. Dep't of Justice, Microsoft Consent Decree Compliance Advisory (Apr. 21, 2003), available at http://www.usdoj.gov/atr/cases/f200900/200957.pdf. ;
101. Joint Status Report on Microsoft's Compliance with the Final Judgments, United States v. Microsoft Corp., No. 98-1232, at 22 (D. D. C. filed July 17, 2003) [hereinafter JSR July 2003], available at http://www.usdoj.gov/atr/cases/ f201100/201135.pdf.
102. JSR July 2003, supra note 73, at 8-9.
103. Interim Joint Status Report on Microsoft's Compliance with the Final Judgments at 10-11, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Oct. 17, 2003), available at http://www.usdoj.gov/atr/cases/f201300/201386.pdf.
104. Joint Status Report on Microsoft's Compliance with the Final Judgments at 15, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Jan. 16, 2004), available at http://www.usdoj.gov/atr/cases/f202100/202129.pdf.
105. Joint Status Report on Microsoft's Compliance with the Final Judgments at 12, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Aug. 30, 2006) [hereinafter JSR August 2006], available at http://www.usdoj.gov/atr/cases/ f218000/218096.pdf.
106. Joint Status Report on Microsoft's Compliance with the Final Judgments at 5-6, United States v. Microsoft Corp., No. 98-1232 (D. D. C. June 19, 2007), available at http://ag.ca.gov/cms-pdfs/press/2007-06-19-Final-JSR.pdf.
107. Joint Status Report on Microsoft's Compliance with the Final Judgments at 12, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Feb. 29, 2008) [hereinafter JSR February 2008], available at http://www.usdqj.gov/atr/cases/ f230600/230647.pdf. The program commits to licensing specified proprietary protocols at lower rates than they had been licensed under the MCPP.
108. See Microsoft Corp., Interoperability Principles: Open Connections, Standards Support, Data Portability (Feb. 21, 2008), http://www.microsoft.com/ interop/principles/default.mspx.
109. Supplemental Joint Status Report on Microsoft's Compliance with the Final Judgments at 10, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Nov. 18, 2005), available at http://www.usdoj.gov/atr/cases/f213100/213109.pdf (offering 500 hours of free technical support and consulting package to each licensee).
110. Joint Status Report on Microsoft's Compliance with the Final Judgments at 4, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Feb. 8, 2006) [hereinafter JSR February 2006], available at http://www.usdoj.gov/atr/cases/ f214500/214518.pdf.
111. More than half of the licensees have signed up for this form of support. Joint Status Report on Microsoft's Compliance with the Final Judgments at 9-10, United States v. Microsoft Corp., No. 98-1232 (D. D. C. June 17, 2008) [hereinafter JSR June 2008], available at http://www.usdoj.gov/atr/cases/ f234100/234119.pdf.
112. Id. at 14.
113. A plug-fest is an event in which Microsoft engineers help developers test and debug protocols the developers use with their products. JSR August 2006, supra note 77, at 6.
114. JSR June 2008, supra note 82, at 13.
115. An interoperability lab is a facility that provides "training, best practices, trouble-shooting and technical support for licensees implementing protocols from the MCPP documentation. " JSR August 2006, supra note 77, at 6.
116. JSR February 2008, supra note 79, at 19-20;
117. Joint Status Report on Microsoft's Compliance with the Final Judgments at 17-18, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Mar. 6, 2007) [hereinafter JSR March 2007], available at http://www.usdoj.gov/atr/cases/ f221700/221759.pdf.
118. Competitive Impact Statement at 36, United States v. Microsoft Corp., No. 98-1232, (D. D. C. Nov. 15, 2001), available at http://www.usdoj.gov/atr/cases/ f222900/222994.pdf. The final judgments require Microsoft to make the protocols available "for use" in interoperation.
119. Page & Childers, supra note 35, at 122.
120. See, e.g., Joint Status Report on Microsoft's Compliance with the Final Judgments at 3-4, United States v. Microsoft Corp., No. 98-1232 (D. D. C. Jan. 25, 2005) [hereinafter JSR January 2005], available at http://www.usdoj.gov/atr/ cases/f207200/207283.pdf.
121. See, e.g., JSR February 2006, supra note 81, at 8.
122. JSR January 2005, supra note 88, at 5.
123. The grander version of the parser plan, called Project Troika, turned out to be overly ambitious and was later scaled back. Page & Childers, supra note 35, at 119-20.
124. Judge Kollar-Kotelly identified these failures as evidence of Microsoft's failure to commit adequate resources to the project. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 160-61.
125. JSR March 2007, supra note 85, at 17. The test suites resemble the prototype implementations, but test the documentation against the Windows code rather than an implementation.
126. Joint Status Report on Microsoft's Compliance with the Final Judgments at 6, United States v. Microsoft Corp., No. 98-1232 (D. D. C. May 12, 2006), available at http://www.usdoj.gov/atr/cases/f216100/216127.pdf.
127. JSR August 2006, supra note 77, at 13.
128. JSR February 2008, supra note 79, at 3.
129. Wolfgang Grieskamp et al., Model-Based Quality Assurance of Windows Protocol Documentation § 1, http://research.microsoft.com/users/wrwg/ ICST08.pdf.
130. Consent Decree 2006, supra note 1, § IV. E.
131. JSRJune 2008, supra note 82, at 13.
132. For a description of Microsoft's testing process, see Grieskamp et al., supra note 95.
133. JSR March 2007, supra note 85, at 11.
134. JSR February 2008, supra note 79, at 5-6. Microsoft calls its audit process "Project Sydney." The first external consulting firm generated a report that led to additional training of Microsoft staff involved in the project. The second firm applied separate "programmatic methods for searching the Windows source code to identify communications protocols that should have been identified by Project Sydney."
135. Id. at 5. This process had uncovered additional "protocol elements."
136. Id. at 3.
137. Id. at 3-4.
138. Id. at 15.
139. JSR June 2008, supra note 82, at 10-11.
140. Id. at 5.
141. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 170.
142. Id. at 174.
143. Id. at 181.
144. Id. at 163.
145. Id. at 161.
146. Id. at 164 n. 28.
147. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 161.
148. Id. at 162 n. 26.
149. The number had grown to 750 by June 2008. JSR June 2008, supra note 82, at 14.
150. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 170.
151. Id. at 163.
152. Id. at 181.
153. Id. at 164 (citations omitted).
154. Id. at 164.
155. Id. at 182.
156. Microsoft noted that "[s]gnificant attention to and involvement in the technical documentation and the MCPP extend through all levels of the Microsoft organization and draw upon the resources of numerous product engineering, business, technical, and legal groups, as well as company management." JSR February 2008, supra note 79, at 20.
157. JSR July 2003, supra note 73, at 22.
158. JSR February 2008, supra note 79, at 14.
159. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 175.
160. Id.
161. Id.
162. Id. at 178.
163. Joint Status Report on Microsoft's Compliance with the Final Judgments at 14-15
164. United States v. Microsoft Corp., No. 98-1232 (D. D. C. Oct. 8, 2004) [hereinafter JSR October 2004], available at http://www.usdoj.gov/atr/cases/ f205700/205751.pdf.
165. JSR June 2008, supra note 82, at 12-13. Microsoft added that: As to the category "TDIs identified by licensees, " in most cases licensees do not open TDIs themselves. Licensees generally ask Microsoft questions about the documentation. Most questions do not result in any TDIs. In some cases, questions from licensees result in a TDI being filed by the Microsoft employees involved in answering the licensees' questions. In these circumstances, Microsoft categorizes the TDI as a licensee TDI.
166. Id. at 11 n. 7. This passage implicitly makes clear that Microsoft resolves all but a handful of issues raised by licensees through its technical support.
167. Interestingly, the states that were moving to extend the term of other provisions of the final judgments raised "the possibility that an MCPP licensee who writes an application using software hosted on a server will also wish to add 'software to the client to take advantage of the functionality that the server provides, '" observing that "certain companies, including Apple, Yahoo!, and Google, are already making use of a product approach that involves both server-side and client-side components, albeit via internet standard protocols rather than Microsoft's proprietary protocols." D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 171-72.
168. The court endorsed this scenario, even though, as Microsoft noted, products that involve adding software to the client or that rely on industry standard protocols would not be affected by the § III. E disclosures. Id. at 172.
169. Parts of the documentation had been downloaded over 146,000 times, as of June 2008. JSR June 2008, supra note 82, at 9.
170. See, e.g., Rachael King, How Cloud Computing Is Changing the World, Bus. Wk., Aug. 4, 2008, available at http://www.businessweek.com/technology/content/ aug2008/tc2008082-445669.htm (reporting one estimate "that 12% of the worldwide software market would go to the cloud in" five years) ;
171. Miguel Helft, Google Pushes to Make Browser Applications More Powerful, N. Y. Times, May 28, 2008, available at http://bits.blogs.nytimes.com/2008/05/ 28/google-pushes-to-make-browser-applications-more-powerful/index.html (quoting Google's vice president of engineering as stating that "[i]f it was Windows versus the Web, the Web has won").
172. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 175.
173. Id. at 176.
174. Page & Childers, supra note 67, at 346-48.
175. The court stated this formulation eight times. See D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 144, 163, 170, 175 (twice), 181, 183 n. 34, 184.
176. Id. at 163 (citations omitted).
177. Id. at 157.
178. JSR February 2008, supra note 79, at 3.
179. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 182-83.
180. JSR June 2008, supra note 82, at 12-13;
181. JSR February 2008, supra note 79, at 18.
182. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 184.
183. D. C. Circuit 2001, 253 F.3d at 107.
184. Network effects complicate this analysis because they can make market power more durable, but they do not change the general point that markets have powerful self-correcting mechanisms. For further discussion of the relationship between network effects and market power, see Page & Lopatka, supra note 1, ch. 3.
185. P. M. HEATHCOTE, 'A' Level ICT 183 (2003) (discussing "establishing the [project's] objectives" in terms of measurable (quantitative) and descriptive (qualitative) terms) ;
186. JOHN MCMANUS, MANAGING Stakeholders in Software Development Projects 1 (2004) (describing objectives in terms of "stakes" held by "stakeholders" as real-world interests, concerns, perceptions of rights, expectations, or even ownership).
187. JEFFREY O. GRADY, Systems Requirements Analysis 7 (2006) ;
188. DEAN LEFFINGWELL & Don Widrig, Managing Software Requirements 7 (2d ed. 2003) (discussing project failures due to poor specifications management).
189. See id. at 93 ("Understanding user and stakeholder needs moves us from the technical domain of bits and bytes, where many developers are most comfortable, into the domain of real people and real-world problems."). For an entertaining discussion of the process of identifying which features to build
190. see Joel Spolsky, Set Your Priorities (Oct. 12, 2005), http://www.joelonsoftware.com/ardcles/SetYourPriorities.html.
191. Leffingwell & Widrig, supra note 144, at 44-45 (describing development as the most expensive alternative, and suggesting other ways to reframe user desires and perceptions in order to avoid the development expense). Marketing people may help the developers determine what potential customers want and, equally important, what they will pay for it.
192. McManus, supra note 143, at 1 (describing the project manager's function as planning, executing, measuring monitoring, controlling, and reducing project risk) ;
193. Leffingwell & Widrig, supra note 144, at 185 (describing the role of a project manager in a software development company).
194. Philip G. Armour, The Laws of Software Process: A New Model for the Production and Management of Software 102 (2003) (discussing "the problems of big process") ;
195. see also id. at 110 (discussing the benefits of the modem "extreme programming" paradigm featuring frequent small releases).
196. Id. at 97 (describing the ascension of the "Agile" software development methodology including frequent regular releases of code) ;
197. id. at 109 (same regarding "Extreme Programming" methodology) ;
198. Torgeir Dingsoyr, Software Process Improvement: 11th European Conference 1 (2004) ("Extreme programming (XP)... is focused on generating early releases of working products and aims to deliver business value from the very beginning of the project.") ;
199. Dwayne Philips, The Software Project Manager's Handbook: Principles that Work at Work 173 (2004) (describing the "Agile" software development methodology). Internal testing refers to the iterative process where developers provide regular releases to internal quality assurance testers for feedback. These internal testers are not using the software necessarily the way a customer might, but are confirming that requirements are being met and tolerances achieved.
200. See also id. at 39 (defining what is a software "methodology").
201. See Philips, supra note 149, at 167 (describing the Microsoft development process emphasizing "testing during development instead of at the end" and "[t]he testers use [the specification] to write the tests for the code the programmers are [concurrently] writing").
202. "Alpha testing" is a limited form of external testing where the code is sent to a dedicated testing team or to a selected potential customer or customers. Software in the alpha testing stage is not considered viable or stable enough for "real" use.
203. Heathcote, supra note 143, at 339 (defining alpha testing).
204. "Beta testing" occurs when software is released to a limited set of potential end-user customers. These customers may or may not be trained in formal testing procedures, but are usually invited to report errors or unexpected behaviors to a designated contact. Beta code may or may not be considered stable enough for "real" use by customers. Sometimes the developer needs feedback that can only be provided by actual use of the product in real-life "battlefield" conditions. "Acceptance testing" is final testing performed by a customer who is purchasing the product. This generally occurs in situations where a customer has ordered a custom software product be designed for its unique purposes. Id.
205. See ISO 9126 Software Quality Characteristics, http://www.sqa.net/ iso9126.html (for a summary of the standard).
206. See also Philips, supra note 149, at 166-67 (describing Microsoft's "three dimensions of quality" as reliability (how good the product must be before shipping), feature set (the specifications or requirements), and schedule (the ship date) ").
207. See Leffingwell & Widrig, supra note 144, at 148. In formal software design terms, a test "script" usually refers to a program (a "script") that automates some portion of the testing process. But in general parlance, the terms test "case" and test "script" are used interchangeably.
208. See also William E. Lewis, Software Testing and Continuous Quality Improvement 44 (2000) ("[a] test script guides the tester through a test and ensures consistency among separate executions of the test").
209. A given set of testing information is often referred to as a "case" or a "use case."
210. See, e.g., Heathcote, supra note 143, at 189 (providing examples of how to draw up a test plan and how to choose tests for the test plan) ;
211. see also id. at 193 (stating "[t]esting is a vitally important part of the project" and describing how a comprehensive test plan should be created and verified as complete at the outset of the project) ;
212. Leffingwell & Widrig, supra note 144, at 157 (describing the concept of "storyboarding" a use case) ;
213. Armour, supra note 148, at 13 (describing need for a rule-based statement of need as well as a specific detailed real-world example) ;
214. Lewis, supra note 155, at 157 (describing a process for creating process-based test scripts).
215. See Leffingwell & Widrig, supra note 144, at 310 ("Deriving Test Cases from Use Cases").
216. See Mike Gunderloy, Painless Project Management with FogBugz 4 (2007) (describing "evidence based" software development management system designed primarily to predict the ship date) ;
217. Armour, supra note 148, at 66 (discussing decision process regarding selecting an acceptable level of defects in order to meet the ship date) ;
218. id. at 15 (observing that "the only natural goal of a software [development] group should be to put itself out of business as soon as possible") ;
219. Philips, supra note 149, at 167 (describing one of the three dimensions of quality as the "schedule [which] is the ship date").
220. See ToM Love, Object Lessons: Lessons Learned in Object-Oriented Development Projects 243 (1993) (emphasizing the need to "[k]eep development costs under control... [s]uccessful software companies spend less than 20% of total expenses on R&D").
221. Michael A. Cusumano & Richard W. Selby, Microsoft Secrets: How the World's Most Powerful Software Comapany Creates Technology, Shapes Markets, and Manages People 89 (1995) (noting the "trade-off between functionality and ship-date") ;
222. Philips, supra note 149, at 167 (describing the primary concept of "[rjeliability [as] how good the product must be before shipping").
223. See Philips, supra note 149, at 167 (" 'Good enough' software is a variation of the test completion measure. Shipping a product containing known errors is not new....") ;
224. Rick D. Craig & Stefan P. Jaskiel, Systematic Software Testing 267 (2002) (observing that "[s]ometimes the risk of not shipping (due to competition, failure of an existing system, etc., may exceed the (business) risk of shipping a flawed product").
225. See Craig & Jaskiel, supra note 162, at 69 (noting the need to "intelligently choosfe] what not to test (i.e., low-risk features), rather than just running out of time and not testing whatever was left on the ship date").
226. Id. at 266 (observing that "[a]t some point... the cost of continuing to test will exceed the value derived from the additional testing").
227. See Philips, supra note 149, at 167 (observing that "Microsoft [normally] ships software containing known errors... but the software works well enough for the vast majority of intended users... Microsoft will both work into the long tail of the 90/10 rule-of-work curve") ;
228. Craig & Jaskiel, supra note 162, at 267 (observing that "[m]any of us have certainly recommended the release of a product that we felt was fairly poor in quality because it was better than what the user[s] currendy had [-] Remember, we're not striving for perfection, only acceptable risk") (emphasis added).
229. See Philips, supra note 149, at 167.
230. See, e.g., Craig & Jaskiel, supra note 162, at 267 (describing a case where the software development company wrote a best of breed tax application, but held it from release until very high-quality standards were met, and by the time of shipment, most potential customers had already purchased an inferior competitive product and were out of the market).
231. Annabelle Gawer & Michael A. Cusumano, Platform Leadership: How Intel, Microsoft, and Cisco Drive Industry Innovation 61 (2002).
232. Not least is the concept that an SDK, like API documentation, is developed primarily for the use of developers.
233. D. D. C. Decree Extension 2008, 531 F. Supp. 2d at 181-84 (declining to extend the judgments beyond November 12, 2009, but leaving open "the possibility of doing so in the future"). Microsoft has agreed that the plaintiffs have the sole discretion to move to extend the enforcement of Section III. E until 2012, and that Microsoft would not oppose the motion.
234. Id. at 162. Because the court's refusal to extend the other provisions judgments the extra three years is contingent on Microsoft's creation of compliant documentation, the plaintiffs would seem to have an incentive to demonstrate the documentation remains flawed indefinitely.
235. JSR October 2004, supra note 126, at 14-15.
236. JSR February 2008, supra note 79, at 15.
237. See MSDN Forums: Open Protocol Specifications, http://forums.microsoft. com/MSDN/default.aspx?ForumGroupID=573&SiteID=1.
238. Press Release, European Comm'n, Antitrust: Commission Ensures Microsoft's Compliance with the 2004 Decision-Frequently Asked Questions (emphasis added), available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/ 420&format=HTML&aged=O&language=EN&guiLanguage=EN.
239. Page & Childers, supra note 67, at 346-48.