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1 Pitt. J. Tech. L. & Pol'y 1 (2000-2001)

handle is hein.journals/pittjtlp1 and id is 1 raw text is: Volume I - Article 1 Interpretation of Consent Decrees and Microsoft v. United States I: Making Law in the Shadow of Negotiation Lloyd C. Anderson* Fall 2000 Copyright C 2000 University of Pittsburgh School of Law Journal of Technology Law and Policy Introduction People negotiate agreements in the shadow of the law, whether in the private ordering of affairs such as drafting contracts or in the public forum of settling lawsuits.[ I] A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare law in the shadow of negotiated settlements. In interpreting the terms of a consent decree[2] when the parties themselves cannot agree on what obligations such terms impose, the judge may determine that both the words and the parties' own intentions are so ambiguous that the words must be interpreted in light of the substantive law that gave rise to the plaintiffs' claim. This writer has previously contended that the meaning of an ambiguous term should be determined, in part, by reference to the constitutional or statutory rights sought to be vindicated in the litigation. Even if the law is somewhat uncertain, part of the judge's interpretive effort should be to determine which interpretation will best serve the policies of the relevant law.[3] It appears that the federal courts, at least, have adopted this position. [4] A recent decision by a divided federal appeals court, however, reached an alarming result that requires reconsideration of this position. In Microsoft v. United States, 56 F.3d 1448 (D.C. Cir. 1995) (Microsoft I), the parties settled an antitrust lawsuit by entering into a consent decree in 1995. One provision in the decree prohibited Microsoft from requiring computer manufacturers to license an other product as a condition of licensing its Windows 95 [5] operating system, but also permitted Microsoft to develop integrated products. When Microsoft sought to require manufacturers to license its Internet Explorer[6] browser as a condition of licensing Windows 95, the government contended that Microsoft had violated the decree because the browser was an other product. A panel majority of the Court of Appeals for the District of Columbia (hereinafter D.C. Circuit), however, held that Microsoft's Internet Explorer browser is an integral part of the Windows 95 operating system rather than an other product, and, therefore, Microsoft did not violate the consent decree.[7] The majority determined that the prohibition against mandatory licensing of an other product was intended to prohibit Microsoft from engaging in anticompetitive tying of one product to a distinct product.[8] Relying on a test proposed in a leading antitrust law treatise, the Microsoft I majority concluded that mandatory inclusion of Microsoft's browser with its Windows 95 operating system was not an illegal tying arrangement. [9]