In fact, Einer Elhauge says he would have reached the opposite conclusion about Microsoft's ability to force computer makers that ship Windows 95 to also include the company's Internet Explorer browser.
The appeals court last week ruled that Microsoft could tie the products together -- a victory for the software company. But Elhauge said his standard which is part of the Areeda treatise, first published in Antitrust Law in 1996 would actually label IE and Windows separate products, meaning Microsoft would have to unbundle them. "My initial reaction was that I was thrilled they'd adopted my standard," Elhauge said. "Then I read the opinion closely. It took me awhile to figure out we disagreed."
It's rare for attorneys to accuse judges of misinterpreting rulings because they may later have to argue before the judges. Elhauge's basic argument -- the one cited in the opinion -- is that products are considered separate if a user or OEM can assemble or install them and they don't work any worse than if the manufacturer had installed them. Elhauge argues that because a user can install Windows 95 with a series of separate disks -- and a user may in fact want to purchase the OS without Internet Explorer -- the products should be considered separate. Therefore, Elhauge maintained that the court should have ruled that Microsoft cannot force computer companies to include both products on their machines.
However, the court went on to rule in favour of Microsoft, saying IE and Windows 95 are one product and do not work as well when installed separately. In its opinion, the court wrote: "If Microsoft presented them with an operating system and a stand-alone browser application, rather than with the interpenetrating design of Windows 95 and IE, the OEMs could not combine them the way in which Microsoft has integrated IE 4 into Windows." Elhauge said he follows the court's reasoning, but nonetheless believes the judges simply drew the wrong conclusion.
"This is a terrific intellectual problem," Elhauge said of the Microsoft case. "The one thing that makes computer software so different is you don't have all of the physical [barriers] to guide you. With software, you can bundle, unbundle, mix and match all kinds of code."
Elhauge said he hasn't studied the government's broader antitrust case closely enough to determine how the interpretation of his treatise could affect Windows 98, released to consumers last week.