A Critical Appraisal of Remedies in the E.U. Microsoft Cases

Abstract

In this Article, the authors discuss and compare the remedies from the European Union’s two cases against Microsoft. The first E.U. case (“E.U. Microsoft I”) alleged that Microsoft illegally bundled the Windows Media Player with Windows and that Microsoft did not provide adequate documentation that would allow full interoperability between Windows servers and non-Microsoft servers, as well as between Windows clients and non-Microsoft servers. After finding Microsoft liable and imposing a large fine, the E.U. imposed as remedies two requirements on Microsoft: (1) to sell a version of Windows without Windows Media Player (“Windows-N”) and (2) to publish and license interoperability information. Windows-N was a commercial failure, and there has been only limited cross-platform server entry.

In its second investigation of Microsoft (“E.U. Microsoft II”), the E.U. alleged illegal tying of Internet Explorer with Windows. The E.U. settled with Microsoft by having them accept the “choicescreen proposal”: an obligation to ask consumers whose computers have Internet Explorer pre-installed to choose a browser from a menu of competing browsers through compulsory Windows updates. Thus, the E.U. imposed quite different remedies in the two cases: an unbundling remedy for the Windows Media Player but close to a must-carry requirement for Internet Explorer.

The article discusses these two forms of remedial measures, their deterrent value on the wrongdoer, how much they actually remedy the damage, and discusses other forms of remedies that also could have been chosen by the court. Finally, the authors posit that, regardless of the specific remedy chosen, there must be some principle of remedial proportionality that is applied in these cases.