IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
| Civil Action No. 98-1232 (CKK)
Next Court Deadline:
June 24, 2008 Status Conference
JOINT STATUS REPORT ON MICROSOFT'S
COMPLIANCE WITH THE FINAL JUDGMENTS
The United States of America, Plaintiff in United States v. Microsoft,
CA No. 98-1232 (CKK), and the Plaintiffs in New York, et al. v.
Microsoft, CA No. 98-1233 (CKK), the States of New York, Ohio,
Illinois, Kentucky, Louisiana, Maryland, Michigan, North Carolina, and
Wisconsin (the "New York Group"), and the States of California, Connecticut,
Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah, and the District
of Columbia (the "California Group") (collectively "Plaintiffs"), together
with Defendant Microsoft, hereby file a Joint Status Report on Microsoft's
Compliance with the Final Judgments, pursuant to this Court's Order
of May 14, 2003.
In a minute order dated April 17, 2008, the Court directed the Plaintiffs
to file a Status Report updating the Court on activities relating to
Microsoft's compliance with the Final Judgments entered in New York,
et. al. v. Microsoft, CA No. 98-1233 (CKK), and in United States
v. Microsoft, CA No. 98-1232 (CKK).
The last Status Report, filed February 29, 2008, served as a six-month
report, containing certain relevant information requested by the Court.
Order at 1-3 (May 14, 2003). This Report is an interim report relating
only to recent enforcement activities. Section II of this Report discusses
Plaintiffs' efforts to enforce the Final Judgments; this section was
authored by Plaintiffs. Section III discusses Microsoft's efforts to
comply with the Final Judgments; this section was authored by Microsoft.
Neither Plaintiffs nor Microsoft necessarily adopts the views expressed
by the other.
II. UPDATE ON PLAINTIFFS' EFFORTS TO ENFORCE THE FINAL JUDGMENTS
A. Section III.E (Communications Protocol Licensing)
Plaintiffs' work concerning Section III.E and the Microsoft Communications
Protocol Program ("MCPP") continues to center on efforts to improve
the technical documentation provided to licensees. In particular, Plaintiffs,
in conjunction with the Technical Committee ("TC") and Craig Hunt, the
California Group's technical expert, are reviewing the results of Microsoft's
project to rewrite the technical documentation, described in detail
in previous status reports, and are providing feedback to Microsoft
on what additional work is still needed.
Since the prior Joint Status Report, Microsoft has completed producing all of the documents in the Milestone schedule, including the last group of documents that were added to cover an update to the Windows Server
2008 ("Longhorn") product. Microsoft continues to address issues in
the documents that have been identified by the TC and by Microsoft itself; this work will continue over time in order to ensure the overall quality of the documentation.
Three recent matters relating to Microsoft's progress in improving
the documentation are worth noting. First, the TC determined that in
the process of revising the technical documentation, Microsoft removed a number of protocol elements that were included in previous versions
of the documentation. When this same issue arose last year, Microsoft
and the TC discussed that Microsoft would not remove protocol elements from the documentation without first discussing it with the TC in order to ensure that there was no substantive disagreement. Plaintiffs are
concerned that the same problem has occurred again. In some cases there
may be perfectly valid and sufficient reasons for removing certain protocol
elements, but it is important for the stability of the documentation that the TC review the proposed deletions before they occur, as Microsoft and the TC previously agreed.
Second, and on a related note, the TC has suggested to Microsoft that it would be extremely beneficial to the TC and licensees to create a
mechanism for detailing changes between versions of the documentation.
Currently, it is difficult to tell exactly what has changed
when Microsoft releases a new version of the documentation. This slows down the TC
in its work by making it difficult to evaluate revisions to the documentation
and causes issues such as the one discussed in the previous paragraph,
where it is difficult for the TC (and Microsoft itself) to determine
whether protocol elements have been removed from the documentation. Licensees have also informed the TC that the absence of version-to-version
change information complicates product development. Microsoft was receptive
to the TC's suggestion and will work with the TC to develop an effective
mechanism to track changes to the documentation.
Finally, at the beginning of the year Microsoft changed the schedule
for publishing updated technical documentation from monthly to quarterly.
The TC's experience with this change has not been positive, as it creates
a longer lag time between the identification of issues in the documentation
and the publication of fixes to those issues. Licensees have expressed
similar concerns to the TC. The TC therefore raised this issue with
Microsoft in a recent meeting, and Microsoft agreed to increase the
frequency of publishing updates to the documentation.
As discussed in the prior Joint Status Report, as part of the original
documentation plan Microsoft committed to producing a final set of overview
documents that explain how the MCPP protocols work together. The TC
determined that the initial set of documents was not adequate and the
Plaintiffs and the TC therefore informed Microsoft that significant
additional work was necessary. Microsoft agreed to create a set of additional
"system" documents which would provide more detailed information on the interaction between the protocols in a number of complex scenarios.
At the end of March, Microsoft provided the TC with three pilot system
documents to evaluate Microsoft's proposed template for the new system
documents. The TC
recently gave Microsoft feedback on the pilot documents
by identifying a number of technical documentation issues; as a general
matter, the TC was concerned with the overall quality of the pilot documents.
The TC previously informed Microsoft that it believes there needs to
be more than one template for the system documents. Now that the TC
has completed its review of the pilot documents, the TC and Microsoft
will discuss over the next few weeks what modifications to the template are necessary -- including the issue of whether one template is sufficient
or whether two templates would be more effective -- and what steps should
be taken to ensure that subsequent documents meet everyone's expectations
in terms of quality.
Microsoft has developed a list of nineteen system documents it plans
to create and developed a rough, high-level schedule for producing these
documents. As Microsoft describes in its section of this report, Microsoft plans to publish drafts of all nineteen documents by the end of March
2009 and to publish the final version of all system documents by the
end of June 2009. Once Microsoft and the TC finalize the template (or
templates) for the system documents, Microsoft will develop a more detailed
schedule with a number of identifiable deliverables over time. As with
the earlier phases of the reset project, establishing individual milestones
for particular groups of system documents will allow Plaintiffs and
the TC to assess the quality of the newly-created documents in a more
orderly way, to provide Microsoft with timely feedback, and to monitor
Microsoft's progress in meeting its schedule commitments. Plaintiffs
and Microsoft will provide the Court with this detailed plan when it
is available. As with the reset project itself, experience in preparing the system documents over time may result in changes to the current
list of nineteen documents such as adding additional documents, combining
documents, or shifting subject matter between documents.
Finally, as disclosed in the last Joint Status Report, in February
Microsoft publicly announced a wide-ranging change in its licensing
practices for interoperability information, which will directly affect
the MCPP. At that time, Microsoft published all of the technical documentation
created pursuant to the MCPP on the Microsoft Developer Network (MSDN).
It is therefore no longer necessary to sign an MCPP license to obtain
access to the MCPP technical documentation. Microsoft has also published
online a list of the patents and patent applications that it claims
apply to each protocol in MCPP and has made available a license for
Plaintiffs reviewed the patent license once it was announced and discussed
with Microsoft the changes to the MCPP licensing structure. As a general
matter, Plaintiffs believe that the publication of the technical documentation
and the substantial reduction in royalties, as compared to the previous
license, are positive steps, which will encourage wider use of the protocols
in the MCPP (possibly beyond the use envisaged by the Final Judgments)
and thereby promote interoperability with Windows clients. Plaintiffs
did raise several issues with Microsoft regarding the new patent license,
and Microsoft agreed to revise the license to address these matters.
Plaintiffs wanted to ensure that future licensees had the same legal
rights under the license that existing licensees possess. Most significantly,
Plaintiffs requested Microsoft carry over into the new patent license:
(1) the legally binding guarantee of the timeliness of future documentation updates and the quality of the documentation; and (2) the indemnification provisions in the previous license. Microsoft was receptive to these concerns and has posted a revised patent license which adds the relevant
provisions from the previous MCPP license.
B. Competing Middleware and Defaults
Plaintiff States and the TC continue to monitor developments regarding Windows XP and Windows Vista to assure compliance with the Final Judgments. This includes ongoing testing by the TC of Windows Vista, Vista Service Pack ("SP") 1, XP SP 3, Windows Media Player 11, Internet Explorer ("IE") 7 and the IE 8 beta, to discover any remaining middleware-related issues. In addition, Microsoft has recently authorized TC access to another
early build of Windows 7 (the successor to Vista), which the TC will
review. As the builds of Windows 7 progress, the TC will conduct middleware-related tests in an effort to assure that bugs fixed in Vista do not re-appear in the next operating system, as well as to assure Final Judgment compliance generally.
Additionally, the TC's on-going review of Windows' treatment of middleware
defaults is being expanded to include an operating system source code
scan in an effort to determine whether some commonality in the code
accounts for default overrides. The TC also is investigating certain
default browser overrides, which Microsoft asserts arise from reasonable
technical requirements that competing browsers apparently do not implement.
The TC will discuss its findings with Microsoft once this inquiry is
Microsoft has released publicly a beta version of IE 8. The TC is
testing the beta, and familiarizing itself with the operation of IE
8's more significant new features.
The TC continues to meet with leading ISVs and PC manufacturers to
discuss issues relating to middleware, the default mechanisms in Vista,
and the options available to OEMs under the Final Judgments, as well
as other Final Judgment-related concerns that industry participants
may choose to raise.
The transitioning to Microsoft of the TC's testing methods and tools
regarding the middleware-related portions of the Final Judgments also
continues. These methods and tools will assist Microsoft in its public
commitment to apply to its products the middleware-related principles
embodied in the Final Judgments.
The TC also participated in the investigation of the unresolved complaint,
discussed by the Plaintiff States below.
The Plaintiff States' Interim Status Report on Microsoft's Compliance
with the Final Judgments, filed December 7, 2007, informed the Court
of two complaints. One remains under investigation, as Plaintiffs have
engaged in various activities in the nature of discovery. This particular
complaint was made prior to November 2007, and the United States is,
accordingly, involved in its investigation.
III. UPDATE ON MICROSOFT'S COMPLIANCE WITH THE FINAL JUDGMENTS
In this section of the report, Microsoft focuses on its compliance
work relating to Section III.E of the Final Judgments. In addition,
this section briefly summarizes the activities of the compliance officers
under the Final Judgments, as well as the inquiries and complaints received by Microsoft since the February 29, 2008 Joint Status Report.
A. Section III.E (Communications Protocol Licensing)
1. MCPP Status Update
Pursuant to Microsoft's recently announced interoperability principles, documentation for Microsoft's Communications Protocols have been made available free of charge on Microsoft's website. Through June 1, 2008,
documents describing protocols that are made available pursuant to the Final Judgments have been downloaded over 146,000 times.
To date, there are a total of 49 companies licensing patents for Communications Protocols pursuant to Section III.E of the Final Judgments, 36 of which have royalty bearing licenses. Since the previous Joint Status Report,
the following companies have signed a patent license: Brocade, CrossTree,
e-trees and Beijing Yuxing Software. Currently, Microsoft is aware of
14 patent licensees that are shipping products under the MCPP. Numerous
other entities may be making use of the protocol documentation that
has been made available to the public on the MSDN website.
Since the last Joint Status Report, Microsoft has continued to promote
offers for MCPP licensees to receive Technical Account Manager support
and to obtain access to Windows source
code at no additional charge.
To date, 28 licensees have signed up with Microsoft to receive free
Technical Account Manager support, and 6 licensees have signed up for
Windows source code access.
2. Microsoft's Progress in Modifying the Technical Documentation
As previously reported, Microsoft has delivered all of the Milestones associated with the "rewrite" program. In addition to this documentation, Microsoft has produced additional overview/reference materials in order
to assist licensees in using the technical documentation.
While Microsoft firmly believes that the current protocol documentation
available to implementers enables interoperability with Windows and
fully complies with the Final Judgments, in response to the Technical
Committee's ("TC") request, Microsoft is undertaking a new effort to
supplement the existing protocol documentation with additional "System"
documents. As part of this process, on March 31, 2008, Microsoft
delivered three initial System documents to the TC. Last week Microsoft
received feedback from the TC in on these three documents in the form
of TDIs. Microsoft is in the process of evaluating this newly-received
feedback. In addition, Microsoft has delivered a fourth System document
to the TC on June 9, 2008. The first three System documents will
be added to MSDN once the website is updated at the end
of June 2008.
Microsoft currently is planning to produce a total of 19 System documents.
Due to the complexity, volume, and novelty of the System documents,
Microsoft expects to publish drafts of all 19 documents no later than
the end of the first quarter of 2009. Microsoft then expects to publish
all of the System documents in final form by the end of second quarter
of 2009. Following a review of the newly-received feedback and a related
dialogue with the TC,
Microsoft will develop various milestones to aid
in the delivery of the System documents.
Microsoft has also discussed with the TC the possibility of tracking
changes to the documentation in a systematic fashion. These discussions
have been productive and Microsoft is now exploring ways to present
version-to-version change information in an efficient manner.
Finally, Microsoft is also working on increasing the frequency with
which it publishes the protocol documentation. Microsoft has not yet
determined the optimal release schedule, but is planning to increase
the frequency from the current quarterly schedule. Microsoft will present
a revised release schedule to the TC in the upcoming weeks.
3. Current Status of Microsoft's Progress in Resolving Technical
Documentation Issues ("TDIs") through May 31, 2008
In light of the volume and complexity of the new technical documentation,
it is inevitable that additional TDIs will emerge in the newly rewritten
documentation. As part of its analysis, the TC is identifying TDIs in
the new Online Build documentation according to the three priority levels
that were described in the March 6, 2007 Joint Status Report. The current
status of TDIs identified in rewritten documentation through May 31,
2008, is noted in the chart below. The total number of TDIs spans the
entire range of rewritten MCPP documentation as well as some of the
overview materials and should be considered in the context of more than
20,000 pages of MCPP technical documentation.
|New Documentation TDIs
||As of 4/30/2008
||Period Ended 5/31/2008
|Priority 1 TDIs Submitted by the TC
|Submitted this period
|Closed this period
|Priority 2 TDIs Submitted by the
|Submitted this period
|Closed this period
|Priority 3 TDIs Submitted by the
|Submitted this period
|Closed this period
|TDIs Identified by Microsoft
|Identified this period
|Closed this period
|TDIs Identified by Licensees
|Identified this period
|Closed this period
|TDIs Identified by TC in Overview/Reference
|Identified this period
|Closed this period
|TDIs Identified by TC in System Documents
|Identified this Period
|Closed this Period
4. Technical Documentation Testing
a. Protocol Test Suite
Since the previous Status Report, Microsoft has continued its efforts
to test the newly rewritten protocol documentation. Microsoft finished
its testing on Cluster 5, during which Microsoft completed test passes
on approximately 30 documents. As is the normal practice, Microsoft
and the TC met to review the results of this Cluster. Microsoft is continuing
the testing of Cluster 6, which will be complete by June 30, 2008.
b. Interoperability Lab
On August 30, 2006, Microsoft announced to MCPP licensees the availability,
at no charge, of Microsoft's Interoperability Lab in the Microsoft Enterprise
Engineering Center for testing licensee implementations of MCPP protocols.
The Interoperability Lab offers direct access to Microsoft product development
teams and technical support from Microsoft's engineering staff to address
issues that may arise during testing. Microsoft completed an interoperability
lab with one licensee during March 2008. It completed another interoperability
lab with a licensee in May. Microsoft received very positive feedback
from Licensees on both events.
Microsoft held a file-sharing plug-fest the first week of June 2008.
This event was the largest plug-fest thus far. The following entities
attended: Apple, Inc.; SAMBA; SNIA; Sun Microsystems, Inc.; Blue Coat
Systems, Inc.; EMC Corporation; Isilon Systems, Inc.; and NetApp. Microsoft
received positive feedback on this event. Additionally, Microsoft is
planning two plug-fests for later in 2008 (for Media Streaming and Active
5. Technical Documentation Team Staffing
Robert Muglia, the Senior Vice President for Microsoft's Server and
Tools Business, continues to manage the documentation effort along with
additional senior product engineering team managers.
Over 750 Microsoft employees and contingent staff are involved in
work on the MCPP technical documentation. Given the substantial overlap
between the MCPP and the European Work Group Server Protocol Program,
all of these individuals devote their efforts to work that relates to
both programs or that is exclusive to the MCPP.
Of these, approximately 320 product team engineers and program managers
are actively involved in the creation and review of the technical content
of the documentation. There are over 25 full-time employees and over
50 contingent staff working as technical writers, editors, and production
technicians. Additionally, as the protocol testing effort continues,
approximately 40 full-time employees and approximately 360 contingent
and vendor staff work as software test designers, test engineers, and
test architects. Significant 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.
B. Compliance Officers
Since the Initial Status Report was filed on July 3, 2003, the compliance
officers have continued to ensure that newly-appointed Microsoft officers
and directors receive copies of the Final Judgments and related materials
(ongoing), that Microsoft officers and directors receive annual briefings
on the meaning and requirements of the Final Judgments (Microsoft completed
the annual training sessions for 2007), that annual certifications are
completed for the most recent year (completed in December 2007), and
that required compliance-related records are maintained (ongoing). In
addition, the compliance officers are actively engaged in Microsoft's
ongoing training programs and committed to monitoring matters pertaining
to the Final Judgments.
C. Complaints and Inquiries Received by Microsoft
As of June 17, 2008, Microsoft has received seven complaints or inquiries
since the February 29, 2008 Joint Status Report. None of these complaints
or inquiries was related to any of Microsoft's compliance obligations
under the Final Judgments.
Dated: June 17, 2008
FOR THE STATES OF NEW YORK,
OHIO, ILLINOIS, KENTUCKY,
LOUISIANA, MARYLAND, MICHIGAN
NORTH CAROLINA, AND WISCONSIN
ANDREW M. CUOMO
Attorney General of New York
JAY L. HIMES
Chief, Antitrust Bureau
Assistant Attorney General
FOR THE STATES OF CALIFORNIA,
CONNECTICUT, IOWA, KANSAS,
FLORIDA, MASSACHUSETTS, MINNESOTA,
UTAH, AND THE DISTRICT OF COLUMBIA
Senior Assistant Attorney General
Office of the Attorney General of California
FOR THE UNITED STATES
DEPARTMENT OF JUSTICE'S
AARON D. HOAG
JAMES J. TIERNEY
SCOTT A. SCHEELE
ADAM T. SEVERT
U.S. Department of Justice
BRADFORD L. SMITH
DAVID A. HEINER, JR.
FOR DEFENDANT MICROSOFT
CHARLES F. RULE
JONATHAN S. KANTER
Cadwalader, Wickersham & Taft LLP
STEVE L. HOLLEY
RICHARD C. PEPPERMAN II
Sullivan & Cromwell LLP
Counsel for Defendant
The TC is working closely with Mr. Hunt on all
of these technical documentation issues. References to Microsoft working
with the TC throughout this report should be taken to include Mr. Hunt
For example, Microsoft or the TC might have
discovered that a particular protocol element does not actually pass
over the wire between a Windows server and a Windows client, but rather
is merely internal within the Windows server and therefore does not
need to be documented as part of the MCPP.
The provisions of the United States' Final Judgment
not relating to Section III.E (Communications Protocol Licensing) expired
in November 2007. This part of the Joint Status Report therefore covers
the joint enforcement activities of the New York Group and the California
The second complaint -- relating to a Vista
user's ability to run virtualization software on Vista Home Basic and
Home Premium -- had been satisfactorily resolved as of the February
2008 status conference.
Each download includes either an individual
document or a set of documents.
A number of the protocols made available to
the public are not covered by any Microsoft patents and thus do not
require a license.
The TDI numbers as of April 30, 2007, reported
in this chart differ slightly from the numbers provided in the previous
Status Report because the dynamic nature of tracking TDIs in multiple
databases occasionally results in categorization and exact TDI closure
dates changing after the previous reporting period.
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