This Note proposes a new method of product definition in software
tying cases. "Tying" is a refusal to sell one product unless the buyer also
purchases another product and is a method by which firms are thought to
be able to use their power over one product to obtain power over another.
Tying is the principal antitrust allegation-brought against Microsoft,
which refuses to sell its operating system (Windows) unless the buyer also
receives a copy of its web browser (Internet Explorer). Yet Microsoft
claims that it has integrated Internet Explorer into Windows, creating a
single integrated product. But in order to have tying, two separate
products must exist. This dilemma has been dubbed the "single-product
problem " and has required courts to define products before conducting
further analysis. This Note explains why traditional methods of product definition
cannot be applied to the software industry. The software industry not only
requires a new method of defining products, however; it also, by its very
nature, transforms the role of the court in software tying cases. After
outlining a theory of software evolution, this Note presents a new method
of evaluating integrated software and applies it to three recent examples,
including the current case against Microsoft. The new test reveals that the
combination of Internet Explorer and Windows should not be considered a
single integrated product, because the bundling harms consumer welfare.
Rethinking Software Tying,
Yale J. on Reg.
Available at: https://digitalcommons.law.yale.edu/yjreg/vol17/iss2/5