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Judge reserves rights to unseal MS pricing data

Perhaps he's considering exposure as one of the possible remedies?

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The transcript of Monday's trial session shows that just 33 pages of testimony were heard in camera - not, in fact, very much. It appears that the judge will be studying the exhibits later, as it was hardly possible to consider each one in the time in closed session. A consortium of media put the argument that as little as possible about Microsoft's pricing should be held in closed court, because of the first amendment right of access to open courtrooms and to trial materials. It was recognised that the Court could not sensibly determine on a document by document basis what should be kept under seal. Apparently around 20 charts were involved. An attorney for Dell pleaded that Microsoft's royalty and pricing information for Dell should remain confidential. Were it disclosed, it "would cause significant competitive injury". Dell's claim was that "it has a competitive advantage now because of its unique build-to-order model. "Dell negotiated very hard and intensely with Microsoft to come to an agreement on the terms that Dell believes is in its best interest. Part of that involves the royalty-and-pricing terms. That is highly confidential information. It's confidential by contract with Microsoft. . . . disclosure of that to Dell's competitors and the public would cause serious competitive injury." Compaq was next to make its plea to keep seven internal documents secret: "Compaq, like Dell, filed a motion in October seeking to have certain select documents placed under seal and received only in camera. We have a slight twist on our presentation, however, your Honor. Some of the documents we wish kept under seal are internal Compaq negotiating strategies for how to get the best deal with Microsoft. "Part of our interest here, while we view Microsoft as an important strategic partner, is we also don't want them to know how we decide to form a negotiating strategy with them. These are documents that are current, late '97 throughout late 1998. In addition, our pricing information, we submit, is proprietary and, more important, what Compaq has agreed to do in the form of marketing initiatives and joint-venture activities with Microsoft to earn any price concessions which we may be able to obtain through negotiation." John Warden for Microsoft said that if the exhibits were made public and labelled "Company A", Company B", etc it would still be possible to identify the companies. David Boies for the DoJ found himself in agreement with Warden. The reason was probably that the DoJ did not wish the indusry to become hostile to the DoJ for revealing its secrets. Stephen Houck for the 19 states and DC asked Judge Jackson to review the transcript and determine what should remain sealed. The judge then closed the court to look at the proposed exhibits and to hear about the intended testimony. He then announced in open court that "I have, on the basis of the representations made to me, or the proffer made to me of the government's evidence and arguments of counsel on the matter, determined that the testimony that is proposed that Dr Fisher give and the exhibits he intends to rely on are, indeed, confidential, commercial information, the disclosure of which would present danger of a clearly defined, serious commercial injury to both the defendant and non-party movants for a protective order. Therefore, I will be taking Dr Fisher's testimony, as to the specifics of these exhibits, in camera. I also have determined that I am going to follow Mr Houck's suggestion and, at the conclusion of the testimony, when furnished a transcript of the testimony taken in closed session, cause a redaction to be made and release as much of it on the public record as I deem can be done at this time. I also want to make clear for all parties that the sealing order will remain in effect for the duration of this case, but does not encompass, ultimately, any decision that I render, to the extent that I find that that information that will be taken under seal is a material part of any decision that I render and must be released on the public record. "What I am doing is reserving a right to revisit the issue of the sealing of this information at the conclusion of the case." The fact that the judge had considered unsealing the exhibits at the end of the case, when he had not been requested to do so, tends to suggest that he favours the DoJ at present, and that unsealing could be one of a number of remedies against Microsoft. Microsoft is claiming that the DoJ was wrong about Microsoft's pricing of operating systems and has posted a document entitled "Microsoft pricing fact sheet" on its Web site. Microsoft says that the price of each of Microsoft's operating systems products has remained essentially flat since 1990. Microsoft does not explain how it derives the prices it quotes - for example MS-DOS "changed [i.e. increased] by a mere 73 cents between 1991 and 1996", and that for the Microsoft-DOS and Windows 3.x combination, the change was "by only 52 cents between 1991 and 1996". ® Complete Register trial coverage

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