TATEL: ... So to the consumer who wants Navigator or some other
browser, it isn't free.
UROWSKY: Well, the cost of Navigator, once it faced serious
competition, was zero.
TATEL: Oh, I understand. I'm talking about the cost of the time
it takes to get it. I mean, it may be not much, but there may be
consumers who are sufficiently discouraged from downloading it so
that they don't do it.
UROWSKY: There are many ways other than downloading to secure
it, and there is every reason to believe that any computer user
that wanted that product could get it.
With great respect, Your Honor, there are three central economic
characteristics of software distribution: It's easy, fast and
cheap. Those aren't technical terms.
WILLIAMS: I understand that you're arguing that there are
different contract clauses between Microsoft and the other
producers, but the basic theme, it seems to me ... are competitive
sellers also bundling the item? If they are, the belief is that
competition is taking care of this, and the forcing that is going
on, the fact that people find themselves in possession of one
maker's product, is therefore innocent, or at least not covered by
ROBERTS: I think that's the critical point. And it's a
difference between bundling, combining and forcing.
There is no problem with Microsoft putting together the
operating system and the browser and offering it as one package.
The problem ...
WILLIAMS: That act alone, in terms of the pricing concerns that
have historically driven tie-in law, ends the case. You're moving
into new territory of a peculiar situation, where the defendant has
said, in a sense, "You can't throw it away, or we're going to make
it slightly hard for you to throw it away; you're going to have to
move the icon on your machine." But that kind of thing has not
driven tie-in law at all. You're taking tie-in law into new and
EDWARDS: ... I mean, this is one of the places for me where the
failure of the findings of fact to point to any record citations
makes it very, very difficult on appellate review, because there
are very conclusory statements here that I tried to trace to
determine whether there was any real data to support the
observation that there is a market for browserless operating
systems. It's certainly not intuitive, given that all of the
operating systems offer browsers that can be removed or deleted.
But, you know, see, in making your argument that in all the
other cases they can be removed, and therefore, Microsoft is
forcing, you're ignoring Microsoft's counterargument, which is they
don't integrate as deeply.
But in any event make that your second answer tell me if
there is any data to back up I hear my colleagues, in the first
part of this argument, that we are supposed to defer to factual
findings, but when I find factual findings that look very
conclusory and there's no citation to anything, I don't think my
obligation as an appellate court is to defer to them. So what is
ROBERTS: I would refer the court, primarily, to the government's
proposed findings of fact, which are, sort of, an annotated
compilation of the evidence that supports the proposed findings.
I remember, offhand, the Boeing example. There is testimony from
Boeing, "We want a browserless ..."
EDWARDS: Is there anything other than Boeing, because that's the
ROBERTS: Yes, I cited, it's the one I recall. They're detailed
in the proposed findings of fact. I think that's where I would look
to find the underlying evidence.
I don't understand Microsoft to contend that those findings are
clearly erroneous. What they contend is ... beside the point,
because they have a different focus. They say, "We're going to put
these together, and because there are benefits, it's not separate
products." And that approach has been definitively rejected by the
ROBERTS: ... Our point is that there should be competition to
decide what is the browser that consumers want. And Microsoft was
unwilling to engage in that competition. And we know exactly why.
They said so in their documents, "We're not going to win." So we
have to, quote, "It's important to leverage the OS asset to make
people use IE instead of Navigator."
Now, if they don't know that Navigator would be a better choice,
that doesn't mean that the benefits of competition are not also
lost to them, because Microsoft is leveraging the OS asset to make
people use IE. It would have been perfectly all right if they'd
offered the package and said, "You can compete." But by ...
WILLIAMS: You just answered his question, Mr. Roberts. Is there
loss of consumer surplus when the consumer doesn't know it? I guess
that's the question.
ROBERTS: I guess my answer would be yes. I mean, there is no
great benefit to ignorance. And there is a loss of competition, and
WILLIAMS: But the consumer can't have a loss of something that
it values if it doesn't know that it exists.