Full opinion text
MEMORANDUM OPINION “There is a remedy for all things but death . KOLLAR-KOTELLY, District Judge. INTRODUCTION Presently pending before the Court are two dueling remedy proposals seeking to redress the wrongs inflicted upon competition by Defendant Microsoft Corporation. These proposals were presented to this Court following the district court’s determination of liability for violation of the Sherman Act, a partial affirmance by the United States Court of Appeals for the District of Columbia Circuit, and an order of remand by the appellate court accompanied by instructions to impose a remedy. Upon review of the entire factual record in this case, the determinations of liability affirmed by the D.C. Circuit, the parties’ legal memoranda, and the relevant legal authority, the Court enters the following legal and discretionary conclusions and order of remedy. The Court bases such conclusions and remedy upon its findings of fact, entered below and in Appendix A. I. PROCEDURAL HISTORY On May 18, 1998, simultaneous with the filing of a complaint by the United States in a related case, a group of state plaintiffs filed a civil complaint alleging antitrust violations by Microsoft and seeking preliminary and permanent injunctions barring the company’s allegedly unlawful conduct. See Microsoft, 253 F.3d at 47. In United States v. Microsoft Corp., No. 98-1232 (D.D.C.), the federal government brought claims pursuant to federal law, while in State of New York, et al. v. Microsoft Corp., No. 98-1233 (D.D.C.), the Plaintiff States brought claims pursuant to both federal and state law. These two cases were consolidated, and following a bench trial in the consolidated cases, Judge Thomas Penfield Jackson concluded that Microsoft had violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, imposing liability for illegal monopoly maintenance, attempted monopolization, and unlawful tying. United States v. Microsoft Corp., 87 F.Supp.2d 30, 35 (D.D.C.2000). Correspondingly, Judge Jackson held that Microsoft had violated the state antitrust laws analogous to §§ 1 and 2 of the Sherman Act in each of the nineteen plaintiff states and the District of Columbia. Id. at 54. To remedy these findings of liability, Judge Jackson ordered the division of Microsoft into two separate corporations. United States v. Microsoft Corp., 97 F.Supp.2d 59, 64 (D.D.C.2000). Microsoft filed an appeal in both cases. On appeal, the D.C'. Circuit deferred to Judge Jackson’s factual findings, Microsoft, 253 F.3d at 118, altered his findings of liability-affirming in part and reversing in part, and vacated the remedy decree, id. at 46. The appellate court remanded the cases to this Court with instructions to hold a “remedies-speeific evidentiary hearing,” id. at 103, and to “fashion an appropriate remedy” in light of the revised liability findings, id. at 105. Following remand, pursuant to Court Order, the parties in the two consolidated cases entered into intensive settlement negotiations. See United States v. Microsoft Corp., Nos. 98-1232 and 98-1233 (D.D.C. Sept. 28, 2001) (order requiring the parties to enter into settlement negotiations). The settlement negotiations did not resolve both cases in their entirety. However, the United States and Microsoft were able to reach a resolution in United Slates v. Microsoft Corp. in the form of a proposed consent decree. The settlement negotiations were partially successful with regard to the states’ case, State of New York, et al. v. Microsoft Corp.; a portion of the plaintiffs in that ease joined the settlement between the United States and Microsoft. Consequently, those states have elected not to proceed to a remedies-speeific hearing in State of New York, et al. v. Microsoft Corp. The states which opted not to join the settlement between the United States and Microsoft have proposed a remedy distinct from that presented in the proposed consent decree. Following expedited discovery, on March 18, 2002, an evidentiary hearing on the issue of the remedy commenced. The parties submitted the direct testimony in written format, while cross-examination and re-direct testimony were offered in open court. Over thirty-two trial days, the Court reviewed the written direct testimony and heard the live testimony of fifteen witnesses proffered by Plaintiffs and nineteen witnesses proffered by Microsoft. Of these witnesses, Plaintiffs offered expert testimony from Dr. Andrew Appel, Professor of Computer Science at Princeton University, whom the Court qualified as an expert in the field of computer science and software engineering. Plaintiffs’ only other expert was Dr. Carl Shapiro, Professor of Business Strategy at the University of California at Berkeley. The Court qualified Dr. Shapiro as an expert in the field of economics. Microsoft presented expert testimony from Dr. John Bennett, a professor in the Department of Computer Science and Electrical Computer Engineering at the University of Colorado at Boulder, and Dr. Stuart Madnick, Professor of Information Technology at the Sloan School of Management and Professor of Engineering Systems in the Engineering Division of the Massachusetts Institute of Technology’s School of Engineering. Both Drs. Madnick and Bennett were qualified by the Court as experts in the field of computer science. Microsoft also offered the expert testimony of Dr. Kenneth Elzinga, Professor of Economics at the University of Virginia, and of Dr. Kevin Murphy, Professor of Business Economics in the Graduate School of Business at the University of Chicago. The Court qualified Drs. Elzinga and Murphy as experts in the field of economics. At the outset of this phase of the proceeding, both parties proposed to offer expert testimony on the subject of decree enforcement from “legal experts.” In response to a request by Microsoft to exclude such testimony, see generally “Defendant Microsoft Corporation’s Motion in Limine to Exclude the Expert Report of John H. Shenefield Which Improperly Proffers a Legal Conclusion,” the Court raised a concern that the expert legal testimony, at least as framed by the parties, was improper. The Court also expressed the opinion that the “expert legal testimony” would be presented more appropriately by the attorneys in the form of oral argument. In response to the Court’s concern, the parties voluntarily withdrew their presentation of these expert witnesses and opted instead to present the information to the Court in the form of legal briefs and argument. See Trial Transcript (“Tr.”). at 1633^10,1835 — 40. II. LAW OF THE CASE When issues have been resolved at a prior stage in the litigation, based upon principles of judicial economy, courts generally decline to revisit resolved issues. More than a mere rule-of-thumb, the “ ‘[l]aw of the case doctrine’ refers to a family of rules embodying the general concept that a court involved in later phases of. a lawsuit should not re-open questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases.” Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995). Similar to the law of the case doctrine is the “mandate rule,” a “ ‘more powerful version’ of the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case.” Independent Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 597 (D.C.Cir.2001) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 n. 3 (D.C.Cir.1996) (“[A]n even more powerful version of the [law-of-the-case] doctrine — sometimes called the ‘mandate rule’ — requires a lower court to honor the decisions of a superior court in the same judicial system.”)). “Under the mandate rule, ‘an inferior court has no power or authority to deviate from the mandate issued by an appellate court.’ ” Id. (quoting Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948)). In this case, the mandate of the appellate court requires this Court to fashion a remedy appropriately tailored to the revised liability findings. Microsoft, 253 F.3d at 105. Not surprisingly then, the starting place for this Court’s determination of an appropriate remedy is the appellate opinion in this case. As the sole issue remaining in the case concerns a remedy for Microsoft’s violation of § 2 of the Sherman Act, rather than a reassessment of liability, the relevant portions of the appellate opinion consist of that court’s discussion of § 2 liability. For background purposes, the Court shall summarize the pertinent portions of the appellate decision, placing the primary focus upon the appellate court’s determination of § 2 liability. A. Court of Appeals Opinion 1. Market Definition The appellate court began its opinion by examining Plaintiffs’ § 2 Sherman Act claims and, specifically, whether the district judge had identified the proper market for purposes of assessing Microsoft’s monopoly power. The appellate court concluded that the district court had properly defined the relevant market as “the licensing of all Intel-compatible PC operating systems worldwide.” Microsoft, 253 F.3d at 52 (quoting Microsoft, 87 F.Supp.2d at 36). Having agreed with the district court’s definition of the relevant market, the appellate court adopted the district court’s determination that “circumstantial evidence proves that Microsoft possesses monopoly power.” Id. at 56. The appellate court further noted that “if we were to require direct proof [of monopoly power], ... Microsoft’s behavior may well be sufficient to show the existence of monopoly power.” Id. at 57. 2. Theory of Liability Integral to the appellate court’s adoption of the market definition was its simultaneous acceptance of Plaintiffs’ theory of Microsoft’s market dominance. Both the district and appellate courts noted that Microsoft’s lawfully-acquired monopoly is naturally protected by a “structural barrier,” known as the “applications barrier to entry.” Id. at 55. “That barrier ... stems from two characteristics of the software market: (1) most consumers prefer operating systems for which a large number of applications have already been written; and (2) most developers prefer to write for operating systems that already have a substantial consumer base.” Id. (citing Findings of Fact ¶¶ 30, 36). This barrier creates a “chicken-and-egg” or network effects situation, which perpetuates Microsoft’s operating system dominance because “applications will continue to be written for the already dominant Windows, which in turn ensures that consumers will continue to prefer it over other operating systems.” Id. Because “[e]very operating system has different APIs,” applications written for one operating system will not function on another operating system unless the developer undertakes the “time consuming-and expensive” process of transferring and adapting, known in the industry as “porting,” the application to the alternative operating system. Id. at 53. Plaintiffs proceeded under the theory that certain kinds of software products, termed “middleware,” could reduce the “self-reinforcing cycle,” Findings of Fact ¶ 39, by serving as a platform for applications, taking over some of the platform functions provided by Windows and thereby “weakening] the applications barrier to entry,” id. ¶ 68. One of middleware’s defining characteristics as a software product is its ability to “expos[e] its own APIs.” Findings of Fact ¶ 28. Eventually, reasoned Plaintiffs, if applications were written to rely on the middleware API set, rather than the Windows API set, the applications could be made to run on alternative operating systems simply by porting the middleware. Ultimately, by writing to the middleware API set, applications developers could write applications which would run on any operating system on which the middleware was preset. Plaintiffs focused their attention primarily upon two such middleware threats to Microsoft’s operating system dominance-Netscape Navigator and the Java technologies. See Microsoft, 253 F.3d at 53. The district and appellate courts accepted Plaintiffs’ theory of competition despite the fact that “neither Navigator, Java, nor any other middleware product could [at that time], or would soon, expose enough APIs to serve as a platform for popular applications.” Id.; Findings of Fact ¶¶ 28-29. 3. Four-Part Test for Liability Having concluded that the district court properly identified the relevant market as the market for Intel-compatible PC operating systems and properly excluded mid-dleware products from that market, the appellate court turned its attention to the issue of whether Microsoft responded to the threat posed by middleware in violation of § 2 of the Sherman Act. Specifically, the appellate court set out to determine whether Microsoft “maintain[ed], or attempted] to ... maintain, a monopoly by engaging in exclusionary conduct.” Microsoft, 253 F.3d at 58. The appellate court recounted that the district court answered that inquiry in the affirmative, finding Microsoft hable for violating § 2 of the Sherman Act: by engaging in a variety of exclusionary acts ... [specifically ...: (1) the way in which it integrated [Internet Explorer] into Windows; (2) its various dealings with Original Equipment Manufacturers (“OEMs”), Internet Access Providers (“IAPs”), Internet Content Providers (“ICPs”), Independent Software Vendors (ISVs), and Apple Computer; (3) its efforts to contain and to subvert Java technologies; and (4) its course of conduct as a whole. Id. In order to review the district court’s findings on this point, the appellate court outlined a four-part test for determining whether particular conduct can be said to violate antitrust law. “First, to be condemned as exclusionary, a monopolist’s act must have an ‘anticompetitive effect.’ That is, it must harm the competitive process and thereby harm consumers.” Id. at 58 (emphasis in original). Second, the plaintiff must “demonstrate that the monopolist’s conduct harmed competition, not just a competitor.” Id. at 59. Third, “the monopolist may proffer a ‘procompetitive justification’ for its conduct.” Id. (quoting Eastman Kodak Co. v. Image Technical Servs. Inc., 504 U.S. 451, 483, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992)). If this justification stands unrebutted by the plaintiff, the monopolist may escape liability. Therefore, the fourth prong of the inquiry requires that the plaintiff “demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit.” Id. The appellate court stressed that, although evidence of intent is relevant “to understand the likely effect of the monopolist’s conduct,” when assessing the balance between the anticompetitive harm and the procompetitive effect, the trial court should focus on the “effect of [the exclusionary] conduct, not the intent behind it.” Id. Using this framework, the appellate court addressed Microsoft’s challenge to each of the findings by the district court. The appellate court examined the district court’s four basic areas of findings with regard to § 2 liability in an order different from that of the district court. The Court presents these holdings, in the order addressed by the appellate court. 4. Original Equipment Manufacturer (“OEM”) Licenses Commencing its analysis with the “[licenses [i]ssued to [o]riginal [equipment [manufacturers,” id. at 59, the appellate court focused upon three license provisions “prohibiting the OEMs from: removing any desktop icons, folders, or ‘Start’ menu entries; (2) altering the initial boot sequence; and (3) otherwise altering the appearance of the Windows desktop,” id. at 61 (citing Findings of Fact ¶ 213). Into the category of “otherwise altering the appearance of the Windows desktop,” the appellate court subsumed the automatic launch of an alternative user interface, the prohibition against the addition of icons and folders different in size and shape from those used by Microsoft, and the prohibition against the use of the “Active Desktop” feature to display third-party brands. Id. at 62; see also Findings of Fact ¶213. Of these license provisions, the appellate court concluded that, “with the exception of the one restriction prohibiting automatically launched alternative interfaces, all of the OEM license restrictions at issue represent uses of Microsoft’s market power to protect its monopoly, unredeemed by any legitimate justification.” Id. at 64. In commencing its next area of analysis, the appellate court noted with regal'd to the license restrictions imposed upon OEMs that they “have a significant effect in closing rival browsers out of one of the two primary channels of distribution.” Id. 5. Integration of Internet Explorer (“IE”) and Windows The appellate court next turned its attention toward the “[integration of [Internet Explorer (“IE”) ] and Windows.” Id. At the outset of its analysis, the appellate court took a narrow view of the district court’s determination, noting that the district court’s “broad[ ]” condemnation of “Microsoft’s decision to bind ‘Internet Explorer to Windows with ... technological shackles’ ” is supported by only three specific actions taken by Microsoft. Id. (quoting Microsoft, 87 F.Supp.2d at 39). The appellate court identified these three as (1) “excluding IE from the ‘Add/Remove Programs’ utility”; (2) “designing Windows so as in certain circumstances to override the user’s choice of a default browser other than IE”; and (3) “commingling code related to browsing and other code in the same files, so that any attempt to delete the files containing IE would, at the same time, cripple the operating system.” Id. at 64-65. Pursuant to its four part test for liability, the appellate court concluded that Microsoft could be held liable for the first and the third of these actions. Id. at 65-67. As to the second of these actions, the override of the user’s choice of default in certain circumstances, the court determined that Microsoft had proffered a procompetitive justification that went unrebutted by Plaintiffs, namely that the override was the result of “valid technical reasons” which justified the override in a “few out of the nearly 30 means of accessing the Internet.” Id. at 67 (quotation marks omitted). Finding that Plaintiffs had neither rebutted Microsoft’s procompetitive justification, nor demonstrated that the anticompetitive effect of the challenged act outweighed such justification, the appellate court held that “Microsoft may not be held liable for this aspect of its product design.” Id. 6. Agreements with Internet Access Providers (“IAPs”) Directing its attention to Microsoft’s “agreements with various IAPs,” which the district court “condemned” as exclusionary, the appellate court identified five Microsoft actions specifically relied upon by the district court for this condemnation: (1) offering IE free of charge to IAPs[;] ... (2) offering IAPs a bounty for each customer the IAP signs up for service using the IE browser!;] ... (3) developing the IE Access Kit (“IEAK”), a software package that allows an IAP to “create a distinctive identity for its service in as little as a few hours by customizing the [IE] title bar, icon, start and search pages,” Findings of Fact ¶ 249[;] ... (4) offering the IEAK to IAPs free of charge, on the ground that those acts, too, helped Microsoft preserve its monopoly!,] [Microsoft, 87 F.Supp.2d] at 41-42[;] ... (5) agree[ing] to provide easy access to IAPs’ services from the Windows desktop in return for the IAPs’ agreement to promote IE exclusively and to keep shipments of internet access software using Navigator under a specific percentage, typically 25%. See [Microsoft, 87 F.Supp.2d] at 42 (citing Findings of Fact ¶¶ 258, 262, 289). Id. at 67-68. Grouping the first four of these actions together as “Microsoft’s inducements,” the appellate court held that these four actions merely “offer[ed] a consumer an attractive deal” and, therefore, could not be treated as anticompetitive. Id. at 68. In contrast, the appellate court agreed with the district court that Microsoft’s exclusive contracts with IAPs “are exclusionary devices, in violation of § 2 of the Sherman Act.” Id. at 71. 7. Agreements with Internet Content Providers (“ICPs”), Independent Software Vendors (“ISVs”), and Apple The appellate court next considered Microsoft’s “dealings with ICPs, which develop websites; ISVs, which develop software; and Apple, which is both an OEM and a software developer.” Id. at 71. The “deals” at issue in this portion of the case are grants of “free licenses to bundle IE with [the ICPs’ and ISVs’] offerings” and the exchange of “other valuable inducements for [ICPs’ and ISVs’] agreement to distribute, promote, and rely on IE rather than Navigator.” Id. (quoting Microsoft, 87 F.Supp.2d at 42-43) (brackets arid quotation marks omitted). The district court held these agreements to be anticompeti-tive in violation of § 2 of the Sherman Act because they had the effect of “directly inducing] developers to focus on [Microsoft’s] own APIs rather than ones exposed by Navigator.” Id. (quoting Microsoft, 87 F.Supp.2d at 42-43) (quotation marks omitted). At the outset of its analysis in this context, the appellate court concluded bluntly that “[w]ith respect to [Microsoft’s] deals with ICPs, the District Court’s findings do not support liability.” Id. In contrast, the appellate court sustained the district court’s finding of liability with regard to Microsoft’s agreements with ISVs because Plaintiffs made “a prima facie showing that the deals have an anticompetitive effect,” and Defendant did not successfully rebut this showing. Id. at 72. In particular, the appellate court found that the exclusive provisions in these so-called “First Wave Agreements” with ISVs foreclosed a substantial share of the market for Navigator. Id. Turning its attention in this context finally to Microsoft’s relationship with Apple, the appellate court' concluded that Microsoft’s agreement with Apple was exclusionary in violation of § 2 of the Sherman Act. Id. at 72-74. The appellate court recounted that in mid-1997, Microsoft and Apple entered into an agreement which obligated Microsoft to continue to release “up-to-date” versions of its office productivity software for Apple’s systems, Mac Office. Id. at 73 (citing Findings of Fact ¶¶ 350-52). The agreement further obligated Apple to make IE the default browser. Id. (citing Findings of Fact ¶¶ 350-52). Pursuant to this same agreement, Apple promised not to install Navigator during the “default installation,” and not to “position icons for non[-]Microsoft browsing software on the desktop of new Macintosh PC systems or Mac OS upgrades.” Id. (quoting Findings of Fact ¶¶ 350-52). Similarly, the agreement prohibited Apple “from encouraging users to substitute another browser for IE, and statefd] that Apple [would] ‘encourage its employees to use IE.’ ” Id. (quoting Findings of Fact ¶ 352) (brackets omitted). The appellate court concluded that “[t]his exclusive deal between Microsoft and Apple ha[dl a substantial effect upon the distribution of rival browsers.” Id. Given the absence of a “procompetitive justification for the exclusive dealing arrangement,” the appellate court affirmed the district court’s finding of § 2 liability based upon Microsoft’s exclusive deal with Apple. Id. at 74. 8. Java The appellate court grouped the next category of Microsoft conduct under the heading “Java” in reference to “a set of technologies developed by Sun Microsys-tems” (“Sun”). Id. The Java technologies are described as “another type of middle-ware posing a potential threat to Windows’ position as the ubiquitous platform for software development.” Id. (citing Findings of Fact ¶ 28). The appellate opinion recounts that the district court identified four steps taken by Microsoft to “exclude Java from developing as a viable cross-platform threat: (a) designing a [Java Virtual Machine (“JVM”)] incompatible with the one developed by Sun; (b) entering into contracts, the so-called ‘First Wave Agreements,’ requiring major ISVs to promote Microsoft’s JVM exclusively; (c) deceiving Java developers about the Windows-specific nature of the tools it distributed to them; and (d) coercing Intel to stop aiding Sun in improving the Java technologies.” Id. Of these actions, the appellate court concluded that all but the first action were anticompetitive in violation of § 2. Id. at 74-78. With regard to the first enumerated action, the incompatible JVM, the appellate court held that because the incompatible JVM did not have an anticompetitive effect which outweighed the procompetitive justification for the design, it could not provide a basis for antitrust liability. Id. at 75. Specifically, with regard to the First Wave Agreements, the appellate court observed that the district court had found the agreements, “although not literally exclusive ... were exclusive in practice.” Id. at 75. Although the district court did not enter precise findings as to the effect of the First Wave Agreements upon rival Java distribution, the appellate court determined that “the record indicates that Microsoft’s deals with the major ISVs had a significant effect upon JVM promotion.” Id. In the absence of procompetitive justification, the appellate court imposed liability for this aspect of the First Wave Agreements. Id. at 76. As to the Java developer tools, the appellate court’s imposition of liability focused not upon the fact that the tools created programs which were not cross-platform, but upon the fact that Microsoft deceived software developers about the Windows-specific nature of the tools. Id. at 76-77. The appellate court found that Microsoft’s deception was intentional and without procompetitive explanation. Id. at 77. As a result, the appellate court imposed liability for Microsoft’s deception. Id. 9. Intel As noted above, the appellate court’s final imposition of liability arose out of a “threat” by Microsoft directed at Intel. Id. at 77. “Intel is [a firm] engaged principally in the design and manufacture of microprocessors.” Findings of Fact ¶ 95. A segment of Intel’s business develops software, with the primary focus upon “finding useful ways to consume more microprocessor cycles, thereby stimulating demand for advanced Intel microprocessors.” Id. The appellate court recounted that in 1995, Intel was in the process of “developing a high performance, Windows-compatible JVM.” Microsoft, 253 F.3d at 77. Furthering its efforts to combat the cross-platform threat of Java to the Windows platform, Microsoft repeatedly “urged Intel not to help Sun by distributing Intel’s fast, Sun compliant JVM.” Id. Eventually, Microsoft “threatened Intel that if it did not stop aiding Sun ... then Microsoft would refuse to distribute Intel technologies bundled with Windows.” Id. Intel capitulated after Microsoft threatened to support an Intel competitor, AMD, if Intel’s efforts with Java continued. Id. The appellate court acknowledged Microsoft’s anticompetitive intent, as well as the anticompetitive effect of Microsoft’s actions toward Intel. Id. Microsoft did not offer a procompetitive justification for its treatment of Intel, but “lamely characterize[d] its threat to Intel as ‘advice.’ ” Id. Rejecting the characterization of Microsoft’s threat as mere “advice,” the appellate court found the district court’s imposition of liability to be supported by both fact and law. Id. at 77-78. On this basis, the appellate court imposed § 2 liability for Microsoft’s threat to Intel. Corresponding to the above-described imposition of liability pursuant to § 2 of the Sherman Act, the appellate court imposed liability upon Microsoft for violations of the relevant “state law counterparts of’ the Sherman Act. Id. at 46. Beyond these findings, the appellate court did not find Microsoft liable for any additional antitrust violations. Specifically, the appellate court reversed the district court’s conclusion that Microsoft’s “course of conduct” as a whole constitutes a separate violation of § 2. Id. at 78. In addition, the appellate court rejected the district court’s finding of attempted monopolization and remanded the § 1 tying claim for further proceedings at the district court level. Plaintiffs opted not to pursue the tying claim on remand. Joint Status Report (Sept. 20, 2001) at 2. 10. Vacating the District Court’s Order of Remedy Following its review of the district court’s conclusions with regard to liability, the appellate court considered the district court’s choice of remedy. Over the objection of Defendant Microsoft, the district court decided to consider the merits of Plaintiffs’ remedy proposal in the absence of an evidentiary hearing. Microsoft, 253 F.3d at 98-99; see also Microsoft, 97 F.Supp.2d at 61. The district court did so based on the rationale that Microsoft’s evidentiary proffers largely concerned “testimonial predictions about future events” which would be of little use to the court in identifying an “optimum remedy.” Microsoft, 253 F.3d at 99 (quoting Microsoft, 97 F.Supp.2d at 62). Based upon its finding of liability for illegal monopoly maintenance, attempted monopolization, and illegal tying, the district court entered a remedy “nearly identical to plaintiffs’ proposal” mandating the divestiture of Microsoft Corporation into an “Operating Systems Business” and an “Applications Business.” Id at 99-100 (quoting Microsoft, 97 F.Supp.2d at 64). The original decree entered by the district court, often referred to as the Initial Final Judgment (“IFJ”), also included a number of “interim restrictions on Microsoft’s conduct.” Id. at 100. The interim restrictions included, inter alia, mandatory disclosure “to third-party developers the APIs and other technical information necessary to ensure that software effectively interoperates with Windows,” id. (describing IFJ § 3.b), a prohibition on Microsoft’s ability to enter into contracts which oblige third parties to limit their “ ‘development, production, distribution, promotion, or use of, or payment for’ non-Microsoft platform-level software,” id. (quoting IFJ § 3.e), and a “ ‘Restriction on Binding Middleware Products to Operating System Products’ unless Microsoft also offers consumers ‘an otherwise identical version’ of the operating system without the middleware,” id. (quoting IFJ § 3.g). The appellate court found three fundamental flaws in the district court’s order of remedy, each of which alone justified vacating the remedial decree. The appellate court first concluded that the failure to hold an evidentiary hearing in the face of disputed facts concerning the remedy violated the “cardinal principle of our system of justice that factual disputes must be heard in an open court and resolved through trial-like evidentiary proceedings.” Id. at 101. The appellate court rejected the district court’s conclusion that eviden-tiary proceedings would not be useful, noting that “a prediction about future events is not, as a prediction, any less a factual issue.” Id. at 102. Moreover, noted the appellate court, “drafting an antitrust decree by necessity ‘involves predictions and assumption concerning future economic and business events.’ ” Id. (quoting Ford Motor Co. v. United States, 405 U.S. 562, 578, 92 S.Ct. 1142, 31 L.Ed.2d 492 (1972)). In addition to the failure to hold an evidentiary hearing, the appellate court faulted the district court for its “fail[ure] to provide an adequate explanation for the relief it ordered.” Id. at 103. Finding the trial court’s devotion of “a mere four paragraphs of its order to explaining its reasons for the remedy” insufficient, the appellate court observed that the initial remedy was not accompanied by an explanation of the manner in which the remedy would accomplish the objectives of a remedial decree in an antitrust case. Id. In this regard, the appellate court recited that “a remedies decree in an antitrust case must seek to ‘unfetter a market from anticompetitive conduct,’ Ford Motor Co., 405 U.S. at 577, 92 S.Ct. 1142, to ‘terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future,’ United States v. United Shoe Mach. Corp., 391 U.S. 244, 250, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968).” Id. (internal citations in original). Lastly, the appellate court concluded that the substantial modifications to the liability imposed by the district court merited a new determination of the remedy for the surviving antitrust violations. In particular, the appellate court noted that of the three original findings of liability, only liability for illegal monopoly maintenance in violation of § 2 of the Sherman Act had survived, and even this aspect of liability had been modified. Id. at 103-04. The appellate court determined that where “sweeping equitable relief is employed to remedy multiple violations, and some-indeed most-of the findings of remediable violations do not withstand scrutiny” the remedy decree must be vacated because there no longer exists a rational connection between the liability imposed and the remedy ascribed thereto. Id. at 105. Accordingly, the appellate court remanded the case for this Court to resolve any factual disputes surrounding a remedy and for this Court to exercise its “broad discretion” in imposing the “relief it calculates will best remedy the conduct ... found to be unlawful.” Id. 11. Remand The appellate court offered specific guidance to this Court regarding the inquiry to be undertaken following remand. In this regard, the appellate court focused most of its attention on the merits of a structural remedy, noting in particular that if, in fact, Microsoft is a “unitary company,” rather than the product of mergers and acquisitions, it is not scissile. Id. In addition, the appellate court reiterated its concern over the quantum of proof provided to support a causal connection between the exclusionary conduct and Microsoft’s persistence in the dominant market position. Id. at 107. Notably, however, the appellate court did not remark that this Court should consider whether or not to impose any remedy. Instead, the appellate court advised this Court to “consider which of the [original] decree’s conduct restrictions remain viable in light of [its] modification of the original liability decision,” id. at 105, and admonished that the remedy imposed should be carefully “tailored to fit the wrong creating the occasion for the remedy,” id. at 107 (“[W]e have drastically altered the scope of Microsoft’s liability, and it is for the District Court in the first instance to determine the propriety of a specific remedy for the limited ground of liability we have upheld.”). B. District Court’s Findings of Fact and Surviving Conclusions of Law As this Court noted above, the inquiry on remand is fundamentally constrained and guided by the conclusions of the appellate court. The appellate court’s conclusions, in turn, rely heavily upon the findings of fact entered by the district court following the liability trial. After a 76-day bench trial, Microsoft, 253 F.3d at 47, Judge Jackson entered 412 numbered paragraphs as his “Findings of Fact,” see Findings of Fact, 84 F.Supp.2d 9. These findings provided the factual basis for the district court’s ensuing conclusions of law, issued some four months later. See Microsoft, 253 F.3d at 48. In considering Microsoft’s challenge to the district court’s factual findings, the appellate court applied the usual deference to the district court’s factual conclusions and found no “clear error,” see id. at 118. Additionally, the appellate court held that the district court’s factual findings permitted meaningful appellate review. Id. In particular, the appellate court refused to reverse the district court’s factual findings relevant to the “commingling] of browsing and non-browsing code.” Id. at 66. Faced with Microsoft’s continuing protestations that the district court’s commingling finding was clearly erroneous, the appellate court specifically denied Microsoft’s plea that it vacate Findings of Fact ¶ 159 “as it relates to the commingling of code.” Id. Because all of the district court’s factual findings survived challenge on appeal, they comprise the law of this case and may be relied upon during the remedy phase of this proceeding. Crocker, 49 F.3d at 739. Indeed, it would make little sense to proceed to craft a remedy in the absence of substantial reliance upon the factual foundation which underlies the liability entered in this case. Hence, the factual findings of the district court, like the conclusions of the appellate court, comprise the foundation upon which this court must construct a remedy. Still, the Court remains mindful of the vital distinction between factual findings, however adverse, and legal conclusions. A somewhat more complex problem is presented by the legal conclusions of the district court. Although exceedingly thorough in its analysis, the opinion of the appellate court did not specifically address at least one of the legal conclusions reached by Judge Jackson during the liability phase. In Part I.A.2.a.i of its opinion, the district court addressed the manner in which Microsoft battled the browser threat in the OEM channel of distribution. Microsoft, 87 F.Supp.2d at 39. The district court concluded that “Microsoft’s campaign proceeded on three fronts”: First, Microsoft bound Internet Explorer to Windows with contractual and, later, technological shackles .... Second, Microsoft imposed stringent limits on the freedom of OEMs to reconfigure or modify Windows 95 and Windows 98 .... Finally, Microsoft used incentives and threats to induce especially important OEMs to design their distributional, promotional and technical efforts to favor Internet Explorer to the. exclusion of Navigator. Id. In its review of the district court’s liability findings, in Part II.B.l and 2 of its opinion, the appellate court addressed these findings in a different sequence, considering first the license restrictions Microsoft imposed upon the OEMs, Microsoft, 253 F.3d at 59-64, and second the binding or “integration” of IE and Windows, id. at 64-67. The appellate court concluded its analysis of the OEM channel with its discussion of integration, never squarely discussing the district court’s finding with regard to the use of “incentives and threats.” See id. at 59-67. Microsoft acknowledges that the appellate court declined to address individually all of Judge Jackson’s specific findings of liability. Microsoft Proposed Conclusions of Law (hereinafter cited as “Microsoft Prop. Concl. of Law”) ¶ 79. Microsoft contends that the “acts condemned by Judge Jackson,” but not specifically addressed by the appellate court, “apparently were the basis for his conclusion that ‘Microsoft’s conduct as a whole ... reinforces the conviction that [Microsoft] was predacious.’ ” Id. (quoting Microsoft, 87 F.Supp.2d at 44) (emphasis omitted) (alteration by Microsoft). Drawing further upon this rationale, Microsoft argues that the appellate court’s reversal of the “course of conduct” liability determination implicitly reverses any of the district court’s liability findings not specifically addressed by the appellate court. See id. While an attractive and simple resolution to a complex quandary, Microsoft’s reasoning is flawed. In conflating all of Judge Jackson’s remaining liability findings, Microsoft ignores the express holding of the appellate court. The appellate court determined to reverse the “course of conduct” liability on the grounds that the district court had failed to identify the acts sufficient to support its finding of liability: “[T]he District Court did not point to any series of acts, each of which harms competition only slightly but the cumulative effect of which is significant enough to form an independent basis for liability.” Microsoft, 253 F.3d at 78 (emphasis added). Tellingly, the appellate court enumerated “the only specific acts ” relied upon by the district court in assessing liability on a “course of conduct” theory. Id. (emphasis added). In this vein, the appellate court recounted that “the only specific acts” identified by the district court, namely “Microsoft’s expenditures in promoting its browser,” were “not in themselves unlawful.” Id. “Because the District Court iden-tifie[d] no other specific acts as a basis for ‘course of conduct liability,’ ” the appellate court reversed that liability determination. Id. In light of the basis for the appellate court's reversal on this point, it is antithetical to conclude that specific anticom-petitive acts clearly described by the district court elsewhere in its conclusions of law are somehow reversed by the appellate court’s rejection of the “course of conduct” finding of liability. Indeed, if these findings of anticompetitive conduct could have been treated as the basis for the district court’s “course of conduct” liability finding, the appellate court would have considered such findings in reviewing the basis for the district court’s “course of conduct” liability determination. Because the appellate court declined to look beyond the particular acts enumerated by the district court in conjunction with its “course of conduct” analysis, there is no basis upon which this Court can conclude that, by reversing liability based upon a “course of conduct,” the appellate court implicitly reversed findings of anticompetitive conduct entered by Judge Jackson elsewhere in his opinion. Although the Court rejects Microsoft’s argument in this regard as without rational support, the Court need not dwell long on the appropriate treatment of acts identified by the district court as anticompeti-tive but not addressed by the appellate court, as Plaintiffs do not rely on any of these acts. Although Plaintiffs contend that Microsoft simply did not appeal Judge Jackson’s finding of liability based upon the “incentives and threats” described in Findings of Fact ¶¶ 230-38, Plaintiffs assert that the clearly affirmed bases of liability are sufficient to guide this Court’s consideration of “the appropriate remedial provisions as to Microsoft’s relations with OEMs.” Plaintiffs’ Proposed Conclusions of Law (hereinafter cited as “PL Prop. Concl. of Law”) at 5. Plaintiffs argue that the Court may make its determination of an appropriate remedy in the absence of any reliance upon the “incentives and threats” liability finding entered by Judge Jackson. Because Plaintiffs denounce any reliance upon Judge Jackson’s apportioning of liability for coercing OEMs with incentives and threats, neither will the Court rely upon such a finding of liability in its consideration of the appropriate remedy. C. General Antitrust Law of Remedies It has long been established that it is the job of the district court to frame the remedy decree in an antitrust case, and the district court has broad discretion in doing so. Int’l Salt Co. v. United States, 332 U.S. 392, 400-01, 68 S.Ct. 12, 92 L.Ed. 20 (1947). “The relief in an antitrust case must be ‘effective to redress the violations’ and ‘to restore competition.’ ” Ford Motor Co., 405 U.S. at 573, 92 S.Ct. 1142 (quoting United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 326, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961)). Not only should the relief ordered “cure the ill effects of the illegal conduct, and assure the public freedom from its continuance,” id. at 575, 92 S.Ct. 1142 (quoting United States v. United States Gypsum Co., 340 U.S. 76, 88, 71 S.Ct. 160, 95 L.Ed. 89 (1950)), “it necessarily must ‘fit the exigencies of the particular case,’ ” id. (quoting Int’l Salt, 332 U.S. at 401, 68 S.Ct. 12). Ultimately, the goal of a remedy in an equitable suit is not the “punishment of past transgression, nor is it merely to end specific illegal practices.” Int’l Salt, 332 U.S. at 401, 68 S.Ct. 12. Rather, the remedy should “effectively pry open to competition a market that has been closed by [a] defendants] illegal restraints.” Id. Equitable relief in an antitrust ease should not “embody harsh measures when less severe ones will do,” 2 Phillip E. Areeda Et Al., ANTitrust Law ¶ 325a, at 246 (2d ed.2000), nor should it adopt overly regulatory requirements which involve the judiciary in the intricacies of business management, United States v. Paramount Pictures, 334 U.S. 131, 163, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). In crafting a remedy specific to the violations, this Court is empowered to enjoin not only the acts for which the defendant was found liable, but “other related unlawful acts,” lest “all of the untraveled roads to [restraint of trade] be left open and [ ] only the worn one be closed.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 133, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (internal quotation marks and citations omitted). In this regard, the Court’s remedy “is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal.” Gypsum Co., 340 U.S. at 88-89, 71 S.Ct. 160; see also United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724, 64 S.Ct. 805, 88 L.Ed. 1024 (1944) (“Equity has power to eradicate the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid whole.”). Notwithstanding this flexibility, the Court may not simply enjoin “all future violations of the antitrust laws.” Zenith Radio, 395 U.S. at 133, 89 S.Ct. 1562. Rather, a remedy “should be tailored to fit the wrong creating the occasion for the remedy.” Microsoft, 253 F.3d at 107. Moreover, the case law counsels that the remedial decree should be “as specific as possible, not only in the core of its relief, but in its outward limits, so that parties may know[] their duties and unintended contempts may not occur.” Int’l Salt, 332 U.S. at 400, 68 S.Ct. 12. In reversing the district court’s original order of remedy in this case, the appellate court criticized the district court for failing to explain how the remedy would “ ‘unfetter a market from anticompetitive conduct,’ Ford Motor Co., 405 U.S. at 577, 92 S.Ct. 1142 ... ‘terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future,’ [United Shoe, 391 U.S. at 250, 88 S.Ct. 1496].” Microsoft, 253 F.3d at 103. In attempting to provide the explanation sought by the appellate court, this Court notes at the outset that the facts and circumstances of this case necessarily affect the extent to which this Court’s order of remedy will “accomplish those objectives.” Id. It bears repeating that the monopoly in this case was not found to have been illegally acquired, see United States v. Microsoft, 56 F.3d 1448, 1452 (D.C.Cir.1995), but only to have been ille-gaily maintained. See Microsoft, 253 F.3d at 46. Moreover, the appellate court observed that “the District Court expressly did not adopt the position that Microsoft would have lost its position in the OS market but for its anticompetitive behavior.” Id. at 107 (citing Findings of Fact ¶ 411). In this regard, the “causal connection between Microsoft’s exclusionary conduct and its continuing position in the operating systems market” was established “only through inference.” Id. at 106-07. Given these circumstances, as the parties concede, it does not seem to be a valid objective for the remedy in this case to actually “terminate” Microsoft’s monopoly. Rather, the proper objective of the remedy in this case is termination of the exclusionary acts and practices related thereto which served to illegally maintain the monopoly. The fact that the “causal connection between Microsoft’s exclusionary conduct and its continuing position in the operating systems market” was established “only through inference,” id., has given rise to significant disagreement between the parties as to Plaintiffs’ burden on remand. In its appeal, Microsoft “urge[d]” the circuit court to “reverse on the monopoly maintenance claim, because plaintiffs never established a causal hnk between Microsoft’s anticompetitive conduct, in particular its foreclosure of Netscape’s and Java’s distribution channels.” Id. at 78. Relying heavily on the treatise on antitrust law authored by Phillip E. Areeda and Herbert Hovenkamp, the appellate court determined that liability in this case could be established through an inference of causation. Id. at 79 (citing 3 Phillip E. Areeda & HeRbeet Hovenkamp, Antitrust Law ¶ 651c, at 78 (rev. ed.1996)). Applying this “rather edentulous test for causation” the appellate court identified two relevant inquiries, the satisfaction of which would result in liability: (1) whether as a general matter the exclusion of nascent threats is the type of conduct that is reasonably capable of contributing significantly to a defendant’s continued monopoly power and (2) whether Java and Navigator reasonably constituted nascent threats at the time Microsoft engaged in the anticompetitive conduct at issue. Id. at 79-80. On the record from the district court, the appellate court readily concluded that both inquiries had been satisfied and that liability must be imposed. Id. The appellate court noted, however, that Microsoft’s “concerns over causation have more purchase in connection with the appropriate remedy.” Id. at 80. In particular, the appellate court noted that the strength of the causal connection is to be considered “in connection with the appropriate remedy issue, i.e., whether the court should impose a structural remedy or merely enjoin the offensive conduct at issue.” Id. Again relying upon Areeda and Hovenkamp, the appellate court focused on the structural remedy that had been imposed by Judge Jackson and identified a relationship between the evidence of causation and the imposition of such a “radical” remedy: As we point out later in this opinion, divestiture is a remedy that is imposed only with great caution, in part because its long-term efficacy is rarely certain. Absent some measure of confidence that there has been an actual loss to competition that needs to be restored, wisdom counsels against adopting radical structural relief. See 3 Areeda & Hoveneamp, ANTITRUST Law ¶ 653b, at 91-92 (“[M]ore extensive equitable relief, particularly remedies such as divestiture designed to eliminate the monopoly altogether, raise more serious questions and require a clearer indication of a significant causal connection between the conduct and creation or maintenance of the market power.”). Id. (internal citation omitted). Later in the opinion, the appellate court again quoted from Areeda and Hovenkamp, highlighting the need for “a clearer indication of a significant causal connection between the conduct and the creation or maintenance of the mai'ket power” where the remedy is structural relief. Id. at 106 (quoting 3 Areeda & Hoveneamp, Antitrust Law ¶ 653b, at 91-92) (emphasis added by appellate court). The appellate court instructed that in the absence of “a sufficient causal connection between Microsoft’s anti-competitive conduct and its dominant position in the OS market ... the antitrust defendant’s unlawful behavior should be remedied by ‘an injunction against the continuation of that conduct.’ ” Id. (quoting 3 Areeda & Hoveneamp, AntitRüst Law ¶ 650a, at 67). In effect, the appellate court appears to have identified a proportionality between the strength'of the evidence of the causal connection and the severity of the remedy. Accordingly, the “[m]ere existence of an exclusionary act does not itself justify full feasible relief against the monopolist to create maximum competition.” Id. (quoting 3 Areeda & Hoveneamp, Antitrust Law ¶ 650a, at 67). Similarly, because structural relief is “designed to eliminate the monopoly altogether,” 3 Areeda & Hoveneamp, Antitrust Law ¶ 653b, at 91, “wisdom counsels against adopting radical structural relief’ in the “absentee of] some measure of confidence that there has been an actual loss to competition that needs to be restored,” Microsoft, 253 F.3d at 80. Instead, the court crafting a remedy must assess the strength of the causation evidence that established liability and tailor the relief accordingly. Id. at 107. While the appellate court’s discussion of causal connection in Parts II.C and V.F of its opinion remains instructive on the issue of remedy, it bears emphasizing that the appellate court was largely concerned in those portions of its opinion with the propriety of a structural remedy of dissolution. Because Plaintiffs have not persisted in their request for a structural remedy of dissolution, for the most part, this Court examines the existing causal connection through a different lens than that anticipated and addressed by the appellate court. Nevertheless, the Court’s determination of the appropriate remedy in this case reflects, among other considerations, the strength of the evidence linking Defendant’s anticompetitive behavior to its present position in the market. The appellate court also noted a “practical” difficulty facing this Court relevant to the issue of remedy. Microsoft, 253 F.3d at 48. The appellate court appropriately observed at the outset of its review the “problematic” fact that over six years, now seven, “have passed since Microsoft engaged in the first conduct plaintiffs allege to be anticompetitive.” Id. at 49. This span of time is an “eternity in the computer industry,” which is, characterized by rapid change. Id. The appellate court further acknowledged that the “dramatic” changes that can occur in the computer industry in such a short period of time “threaten!] enormous practical difficulties for courts considering the appropriate measure of relief in equitable enforcement actions.” Id. The appellate court recognized that in such cases “[c]on-duct remedies may be unavailing ... because innovation to a large degree has already rendered the anticompetitive conduct obsolete (although by no means harmless).” Id. At a minimum, opined the appellate court, such complexities deL mand an “evidentiary hearing on remedies-to update and flesh out the available information.” Id. The parties and the Court undertook the lengthy process of precisely such an evi-dentiary hearing and endeavored to update and flesh out the relevant factual information. Notwithstanding these substantial efforts and the benefits derived therefrom, as the appellate court certainly anticipated, there remain difficulties inherent in crafting conduct remedies an “eternity” after commencement of the relevant conduct. Aware, though undeterred, by these difficulties, the Court, in the exercise of its discretion, has arrived at an appropriate remedy for Microsoft’s illegal behavior. Ever-mindful of the complexities identified by the appellate court and guided by the words of the Immortal Bard that “it is excellent [t]o have a giant’s strength, but it is tyrannous [t]o use it like a giant,” the Court sets forth its findings of fact, order of remedy, and justification therefor. III. SCOPE OF THE REMEDY On December 7, 2001, Plaintiffs and Defendant simultaneously filed their competing proposals for a remedy in this case. In response to Plaintiffs’ proposal and the discovery which ensued, Microsoft filed a motion in limine seeking “to exclude all evidence concerning server operating systems, hand-held devices, television set-top boxes and Web services.” Def. Mot. in Limine to Exclude Testimony on Products Unrelated to the Limited Ground of Liability Upheld by the Ct. of Appeals at 1. Microsoft argues, inter alia, that these devices and products fall outside of the monopoly market and are unrelated to the conduct found to be anticompetitive and, therefore, are inappropriate for consideration and coverage by the remedy in this case. Id. All of the Microsoft conduct which was found to be exclusionary in violation of § 2 of the Sherman Act was directed at “preventing the effective distribution and use of products that might threaten that monopoly.” Microsoft, 253 F.3d at 58. The type of products at which Microsoft directed this conduct were identified by the district court as “middle-ware ” with a specific focus on the Navigator and the Java technologies. Having reserved ruling on Microsoft’s motion and permitted the partiés to further develop the relevant facts, the Court now addresses as a threshold matter the manner in which Plaintiffs propose to treat “middle-ware” in the remedial phase of this case. Ordinarily, the Court might conclude rather swiftly that products which fall outside of the relevant market are inappropriate for discussion and consideration by the Court in conjunction with the crafting of a remedy for illegal monopoly maintenance. The Court does not do so in this case because the theory of liability pursuant to which Plaintiffs’ prevailed involved Microsoft’s response to a type of product which did not fall within the monopoly market, but nevertheless posed a potential threat to Microsoft’s monopoly. Accordingly, the Court pauses to examine the monopoly market, the products which were excluded from that market, and the relationship of middleware to this market. The definition of the relevant product market is a necessary element of a monopolization charge. See United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Microsoft, 253 F.3d at 51. As noted above, the monopoly market in this case is the market for Intel-compatible PC operating systems. See Microsoft, 253 F.3d at 51. Microsoft objected to this market definition, arguing that the district court had defined the market too narrowly, improperly excluding “three types of products: non-Intel compatible operating systems (primarily Apple’s Macintosh operating system, Mac OS), operating systems for non-PC devices (such as handheld computers and portal [W]ebsites), and ‘middleware’ products, which are not operating systems at all.” Id. at 52. The appellate court summarily rejected Microsoft’s challenge with regard to the exclusion of the first two types of products, observing that Microsoft had not challenged the key district court findings of fact which determined that the products were not likely to perform the functions of a PC anytime in the near future. Id. The appellate court considered more carefully Microsoft’s argument with regard to the exclusion of middleware from the market, but ultimately concluded, id. at 54, that middleware did not meet the test of “reasonable interchangeability,” id. at 53. Microsoft subsequently challenged as in-consonant the exclusion of middleware from the market and Plaintiffs’ theory of liability that Microsoft’s suppression of the middleware threat could amount to illegal monopoly maintenance in violation of § 2. Id. at 54. The appellate court rejected this contention based upon the distinction between the level of competitive threat relevant to establishing a market definition and the level of competitive threat relevant to the imposition of § 2 liability. Id. “Nothing in § 2 of the Sherman Act limits its prohibition to actions taken against threats that are already well-developed enough to serve as present substitutes.” Id. The appellate court observed, in this regard, that because middleware was merely a nascent threat, id., it may simultaneously threaten to “become a viable substitute for Windows” and yet, remain outside of the relevant monopoly market because it is “not presently a viable substitute for Windows.” Id. (emphasis added). Based upon this analysis, the appellate court affirmed the district court’s identification of the relevant market and determined that Microsoft possessed monopoly power in that market. Id. at 54-58. Notably, the