United States v. Microsoft Corp.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Opinion concurring in part and dissenting in part filed by Circuit Judge WALD.

The district court entered a preliminary injunction prohibiting Microsoft Corporation from requiring computer manufacturers who license its operating system software to license its internet browser as well. In granting the preliminary injunction the court also referred the government’s motion for a permanent injunction to a special master. Microsoft appeals the preliminary injunction and applies for a writ of mandamus revoking the reference to a master. We find that the district court erred procedurally in entering a preliminary injunction without notice to Microsoft and substantively in its implicit construction of the consent decree on which the preliminary injunction rested. We also grant the petition for mandamus and direct the district court to revoke or revise its reference.

I.

This case arises from Microsoft’s practices in marketing its Windows 95 operating system. An operating system is, so to speak, the central nervous system of the computer, controlling the computer’s interaction with peripherals such as keyboards and printers. Windows 95 is an operating system that integrates a DOS shell with a graphical user interface, i.e., a technology by which the operator performs functions not by typing at the keyboard but by clicks of his mouse. Operating systems also serve as “platforms” for application software such as word processors. As the word “platform” suggests, the operating system provides a basic support structure for an application via “application programming interfaces” (“APIs”), *939which provide general functions on which applications can rely. Each operating system’s APIs are unique; hence applications tend to be written for particular operating systems. The primary market for operating systems consists of original equipment manufacturers (“OEMs”), which make computers, install operating systems and other software that they have licensed from vendors such as Microsoft, and sell the package to end users. These may be either individual consumers or businesses.

In an earlier opinion, also arising from litigation generated by the Justice Department’s 1994 antitrust suit against Microsoft, we briefly described Microsoft’s role in the software industry and some of the industry’s economics. United States v. Microsoft Corp., 56 F.3d 1448, 1451-52 (D.C.Cir.1995). Because IBM chose to install Microsoft’s operating system on its personal computers, Microsoft acquired an “installed base” on millions of IBM and IBM-compatible PCs. That base constituted an exceptional advantage, and created exceptional risks of monopoly, because of two characteristics of the software industry — increasing returns to scale and network externalities. First, because most of the costs of software lie in the design, marginal production costs are negligible. Production of additional units appears likely to lower average costs indefinitely. (I.e., the average cost curve never turns upward.) Second, an increase in the number of users of a particular item of software increases the number of other people with whom any user can share work. As a result, Microsoft’s large installed base increases the incentive for independent software vendors to write compatible applications and thereby increases the value of its operating system to consumers.

The Department’s 1994 complaint alleged a variety of anticompetitive practices, chiefly in Microsoft’s licensing agreements with OEMs. Along with it, the Department filed a proposed consent decree limiting Microsoft’s behavior, the product of negotiations between Microsoft, the Department and European competition authorities. Most relevant here is § IV(E) of the decree:

Microsoft shall not enter into any License Agreement in which the terms of that agreement are expressly or impliedly conditioned upon:

(i) the licensing of any other Covered Product, Operating System Software product' or other product (provided, however, that this provision in and of itself shall not be construed to prohibit Microsoft from developing integrated products); or

(ii) the OEM not licensing, purchasing, using or distributing any non-Microsoft product.

The Department sees a violation of §■ IV(E)(i) in Microsoft’s marketing of Windows 95 and its web browser, Internet Explorer (“IE”).

The Internet is a global network that links smaller networks of computers. The World Wide Web (“the Web”) is the fastest-growing part of the Internet, composed of multimedia “pages” written in Hypertext Markup Language (“HTML”) and connected to other pages by hypertext links. Browsers enable users to navigate the Web and to access information.

Most browsers are designed according to a “multi-platform” approach, with different versions for each of a variety of different operating systems. Joint Appendix (“J.A.”) 81. Browsers also have the potential to serve as user interfaces and as platforms for applications (which could then be written for the APIs of a particular browser rather than of a particular operating system1), providing some of the traditional functions of an operating system. Widespread use of multi-plat-form browsers as user’ interfaces has some potential to reduce any monopoly-increasing effects of network externalities in the operating system market. Browsers can enable the user to access applications stored on the *940Internet or local networks, or to operate applications that are independent of the operating system. J.A. 103-05.

Microsoft has developed successive versions of IE, the first of which was initially released with Windows 95 in July 1995. Microsoft’s Windows 95 license agreements have required OEMs to accept and install the software package as sent to them by Microsoft, including IE, and have prohibited OEMs from removing any features or functionality, i.e., capacity to perform functions such as browsing. J.A. 86-89.

The first three versions of IE were actually included on the Windows 95 “master” disk supplied to OEMs. Department Br. at 4; J.A. 1277-78. IE 4.0, by contrast, was initially distributed on a separate CD-ROM and OEMs were not required to install it. Microsoft intended to start requiring OEMs to preinstall IE 4.0 as part of Windows 95 in February 1998. On learning of Microsoft’s plans, the Department became concerned that this practice violated § IV(E)(i) by effectively conditioning the license for Windows 95 on the license for IE 4.0, creating (in its view) what antitrust law terms a “tie-in” between the operating system and the browser.2 (It is not clear why extension of Microsoft’s established IE policy to IE 4.0 aroused the Department’s concern.) It filed a petition seeking to hold Microsoft in civil contempt for its practices with respect to IE 3.0, and requesting “further” that the court explicitly order Microsoft not to employ similar agreements with respect to any version of IE. '

A party seeking to hold another in contempt faces a heavy burden, needing to show by “clear and convincing evidence” that the alleged contemnor has violated a “clear and unambiguous” provision of the consent decree. Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C.Cir.1993). Finding § IV(E)(i) ambiguous, the district court denied the Department’s contempt petition. But that left open the possibility that Microsoft’s practicés might in fact violate the consent decree (though not so clearly as to justify contempt), and the district court continued the proceedings in order to answer that question, appointing a special master not only to oversee discovery but also to propose findings of fact and conclusions of law. For the meantime, the court entered a preliminary injunction forbidding Microsoft

from the practice of licensing the use of any Microsoft personal computer operating system software (including Windows 95 or any successor version thereof) on the condition, express or implied, that the licensee also license and preinstall any Microsoft Internet browser software (including Internet Explorer 3.0, 4.0, or any successor versions thereof).

J.A. 1300.

A detour is necessary to explore what this injunction meant. In some of its papers before the court the Department had argued for an order barring Microsoft from “forcing OEMs to accept and preinstaE the software code” that it separately distributes at retail as IE 3.0. J.A. 996. Microsoft had responded that a Windows 95 operating system without IE software code simply would not function. The government characterized that assertion as “greatly overblown.” J.A. 1237. The district court, in its justifying memorandum, referred to the injunction as barring Microsoft from “forcing OEMs to accept and preinstall the software code” separately distributed as IE 3.0, J.A. 1296-97; i.e., it employed the Department’s exact words on the subject. After the injunction was issued, Microsoft and the Department had further consultations, at the end of which they entered a stipulation that Microsoft would be in compliance with the injunction if it extended to OEMs the options of (1) running the Add/Remove Programs utility with respect to IE 3.x and (2) removing the IE icon from the desktop and from the *941Programs list in the Start menu and marking the file IEXPLORE.EXE “hidden.” J.A. 1780-81. It appears not to be disputed that these alternate modes of compliance do not remove the IE software code, which indeed continues to play a role in providing non-browser functionality for Windows. In fact, browser functionality itself persists, and can be summoned up either by entering four lines of code or by running any application (such as Quicken) that contains the code necessary to invoke the functionality. J.A. 1649-55. The agreed-upon me^ns of compliance simply enable the OEMs to make user access to IE more difficult.3

' Microsoft appealed, as authorized by 28 U.S.C. § 1292(a)(1), and also sought mandamus directing the district court to revoke the reference to the special master.

II.

Microsoft claims at the outset that the district court, after finding no contempt, should simply have dismissed the Department’s petition. But although the petition was styled simply as one for an order to show cause “Why Respondent Microsoft Corporation Should Not Be Held in Civil Contempt,” its prayer for relief sought not only pure contempt remedies (such as the attention-grabbing request for $1,000,000 a day in damages), but also an order directing Microsoft to cease and desist from requiring “OEMs to license any version of Internet Explorer as an express or implied condition of licensing Windows 95.” J.A. 41. This was plainly a request for clarification of the consent decree, pinning down its application to the browser issue. Such a clarification may properly take the form of an injunction. See Brewster v. Dukakis, 675 F.2d 1, 3-4 (1st Cir.1982). Indeed, as a consent decree contains an injunction already, a clarification naturally acquires the same character. (Of course, if the supplementary language goes beyond the consent decree, it is a modification rather than a clarification, and is governed by different standards. See, e.g., United States v. Western Elec. Co., 894 F.2d 430, 435 (D.C.Cir.1990) (“Manufacturing Appeal”).) -Although the framing of this request as part of a remedy for contempt may have been odd, Microsoft does not contest that the proceeding put in controversy the meaning of § IV(E)(i) as applied to its browser technology.

This government request for clarification appeared in its petition shortly after its primary request — that the court adjudge Microsoft. to be in contempt — and the word “further.” Following “further” are a raft of requests for orders, this being just one. Microsoft says this clearly shows that the request was contingent on a finding of contempt. It further (here, in the sense of “additionally”) presses on us some lines from a colloquy between the district court and a Department lawyer during the final hearing (December 5,1997) before the court made its decision to issue a preliminary injunction:

THE COURT: All right. Let me go to the relief that you have requested here. Your petition is in terms phrased only as a petition for a finding of contempt.

MR. MALONE: That’s correct, Your Honor.

THE COURT: We’ve have [sic] gone beyond the show cause [stage]. They have shown cause, and we’re now at the contempt stage.

Is that the only relief that you’re looking for, or am I to read the petition as what I am inclined to read-it as, and that is a petition for specific enforcement?

. MR. MALONE: I think that is exactly how the Court should read it, Your Honor. I think we have said, very clearly, in arguing since the beginning that we want the Court — we believe the Court can find Microsoft in contempt and can impose this specific relief to remedy the contempt, and should quickly.

Microsoft has opposed that on merits grounds, but I don’t think Microsoft has come along and said, “You can’t do that. This is just an order to show cause or something else.”

*942The merits are very much before the Court, and what we’re asking is for the specific relief that we requested in the petition.

That really boils down to, Your Honor, simply an order telling Microsoft, “You may no longer force OEMs to take Internet Explorer as a condition of getting you[r] Windows 95 license.”

J.A. 1235-36.

In fact we think this dialogue suggests either that the Department’s request was always in the alternative or that it modified the request to make it such. “I think that is exactly how the Court should read it” comes in response to a suggestion that the petition be read as a request for specific enforcement, and the interest in clarification is presented as the Department’s central concern. J.A. 1295. Given the district court’s participation in the colloquy, we might be inclined, if necessary, to defer to its understanding of the Department’s prayer for relief.

Even if we found that the Department’s request was in fact contingent on a finding of contempt, however, we do not think the district court would have erred in clarifying the decree sua sponte as an incident to its denial of the contempt petition. Contempt motions are often accompanied by requests for clarification in the alternative. But they also often elicit declaratory clarifications, and sometimes even amendments, as accompaniments to denials even without (so far as appears) explicit alternative requests for clarification. See, e.g., Wilder v. Bernstein, 49 F.3d 69, 71-72 (2d Cir.1995); Thermice Corp. v. Vistron Corp., 832 F.2d 248, 250-51 (3d Cir.1987); Gov’t of the Virgin Islands v. Sun Island Car Rentals, Inc., 819 F.2d 430, 431 (3d Cir.1987); Movie Systems, Inc. v. MAD Minneapolis Audio Distributors, Inc., 717 F.2d 427, 429-30 (8th Cir.1983); Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 888 n. 2, 892 (9th Cir.1982); Stolberg v. Board of Trustees for State Colleges, 541 F.2d 890, 892 (2d Cir.1976); Red Ball Int. Demolition Corp. v. Palmadessa, 947 F.Supp. 116, 121 (S.D.N.Y.1996); Johnson v. Heckler, 604 F.Supp. 1070, 1075-76 (N.D.Ill.1985).

We are aware of no case raising doubts about the propriety of clarification incident to the denial of a contempt petition. Indeed, at oral argument Microsoft conceded “in principle” the court’s authority to continue the proceeding in order to clarify the decree. Transcript at ll.4 Of course, the above cases characteristically did not explicitly affirm the district court’s authority, although one did just that. See Vertex, 689 F.2d at 892 (“[T]he district court could properly clarify that ambiguous language, and this it did, requiring defendants to change their future advertising to comply with the consent judgment, as clarified.”).

Microsoft points out that the question of district court authority is jurisdictional, so that mere practice may not be enough. But much repeated practice illumines the generally understood meaning of petitions for contempt citations. A court granting a clarification that the parties have not explicitly requested has at most construed the petition to contain an implicit request for declaratory relief. This construction seems altogether reasonable where, as here, the petition clearly puts the meaning of the consent decree in issue and the petition makes the standard request (in the rather typical words of this petition) for “such further orders as the nature of the case may require and as the Court may deem just and proper to compel obedience to and compliance with the orders and decrees of this Court.” J.A. 43. Cf. Johnson, 604 F.Supp. at 1075-76 (denying contempt petition but clarifying decree in response to request for further relief under 28 U.S.C. § 2202).

Because it was not error for the court to address the issue of clarification, we must decide whether the preliminary injunction was correctly granted.

*943III.

Microsoft argues that the district court failed to comply with Federal Rule of Civil Procedure 65(a)(l)’s command, “No preliminary injunction shall be issued without notice to the adverse party.” We agree. Obviously the Department’s request for .a contempt citation provided no such notice, for the governing criteria are completely different. To defeat the contempt petition, all Microsoft had to do was to show that the Department failed to meet its burden of showing that the consent decree unambiguously barred its conduct: For a preliminary injunction, by contrast, traditional equitable standards would require the government to show substantial likelihood of success on the merits (here, that the decree, properly construed, barred the conduct), plus risk of irreparable injury, lack of substantial injury to the opposing party, and consistency with the public interest. See CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995). The contempt petition did not alert Microsoft to contest these factors.

Nor could the Department’s request for a permanent injunction serve as notice — even putting aside Microsoft^ argument that the request was contingent on a situation that never arose (see section II). The request for a permanent injunction amounted to no more than a request for a clarification, and thus would require only a showing that the Department’s reading of the consent decree was correct. It did not put into play the equitable factors of interim irreparable injury to the requester, harm to the party to be enjoined, and effects on the public interest. But resolution of these is essential in granting a preliminary injunction; the proponent must make a showing about the interim risks precisely in order to counterbalance the lack of any final ruling in its favor on the merits.

At oral argument the Department claimed that when the government seeks a preliminary injunction under a statute, its showing of a likelihood of- success' on the merits supplants the normal need for assessment of the interim risks. This is true under some circumstances. First, it is clear that if a statute confers a right to an injunction once a certain showing is made, no plaintiff— neither governmental agencies nor private parties — need show more than the statute specifies. See, e.g., Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 740 F.2d 566, 571 (7th Cir.1984) (irreparable injury not required for preliminary injunction under 47 U.S.C. § 401(b), which - provides that court “shall enforce” FCC order upon showing of disobedience). The statutory specification displaces the traditional equitable standards, but this displacement is “not lightly assume[d].” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). Plaintiffs' must show that Congress intended to “intervene and guide or control the exercise of the courts’ discretion.” Id. at 313, 102 S.Ct. 1798. See also Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 541-45, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987).

Second, and not entirely distinct in the cases, lurks the proposition that when a governmental entity sues to enforce a statute, irreparable injury is presumed, to flow from the violation itself. See, e.g., United States v. Diapulse, 457 F.2d 25, 27-28 (2d Cir.1972) (“The passage of the statute is, in a sense, an implied finding that violations will harm the public and ought, if necessary, [to] be restrained.”). It is unclear, however, whether such decisions actually turn on the identity of the plaintiff, or whether they are simply instances where the court read the statute as providing for injunction on a reduced showing and mentioned the enforcing agency because it happened to b.e the plaintiff before the court. As the cases did not purport to apply the doctrine to all statutes under which a government agency might seek relief, -but limited it, for example, to “remedial” ones,5 *944see, e.g., Commodity Futures Trading Comm’n v. Muller, 570 F.2d 1296, 1300 (5th Cir.1978), the latter, seems more probable.

Some cases antedating Romero-Barcelo took the view that mere statutory authorization of injunctive relief displaced equitable standards, see, e.g., Atchison, Topeka & Santa Fe Railway Co. v. Lennen, 640 F.2d 255, 259 (10th Cir.1981) (citing eases). Under this view § 4 of the Sherman Act, 15 U.S.C. § 4, authorizing such temporary injunctive relief “as shall be deemed just,” but setting no standards for its award, would evidently be enough. But such cases seem outmoded by Romero-Barcelo’s view that displacement of the usual equitable standards requires a “clear and valid legislative command.” 456 U.S. at 313, 102 S.Ct. 1798, quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 5.Ct. 1086, 90 L.Ed. 1332 (1946). In fact, even before Romero-Barcelo the Court construed § 4’s grant as controlled by the ordinary principles of equity courts. De Beers Consol. Mines v. United States, 325 U.S. 212, 218-19, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945).

In any event, the Department’s suggestion is irrelevant. The preliminary injunction was entered in a suit to enforce a consent decree, not a statute. As the settlement of a litigation, the decree may require less than the statute under which the suit was brought, or more, United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971); Ass’n for Retarded Citizens v. Thorne, 30 F.3d 367, 369 (2d Cir.1994), so the violation of one is not necessarily a violation of the other. Thus a finding of probable violation of the consent decree could not support a presumption of irreparable harm even under the most extravagant version of the doctrine the government invokes.

So the district court did need to find irreparable injury before granting the preliminary injunction. The absence of notice had the effect of precluding the introduction of evidence and argument on this requirement, and the omission was far from trivial. At oral argument the Department conceded that it had offered no evidence on the subject, and Microsoft suggested that it could have forcefully contested anything the Department might have offered, alluding to information— obviously not in the record — that no OEM had, since entry of the preliminary injunction, sought to take advantage of its terms. Transcript at 10, 61.6

The purpose of Rule 65(a)(l)’s notice requirement is to allow the opposing party a fair opportunity to oppose the preliminary injunction, see Weitzman v. Stein, 897 F.2d 653, 657 (2d Cir.1990), and compliance is mandatory, Parker v. Ryan, 960 F.2d 543, 544 (5th Cir.1992). Preliminary injunctions entered without notice to the opposing party are generally dissolved. See, e.g., Williams v. McKeithen, 939 F.2d 1100, 1105-06 (5th Cir.1991); Weitzman, 897 F.2d at 657-58; Phillips v. Chas. Schreiner Bank, 894 F.2d 127, 130-31 (5th Cir.1990). Appellate courts have, however, on occasion allowed a procedurally flawed injunction to remain in place pending a proper hearing on remand if the equities support such a disposition. See, e.g., Rosen v. Siegel, 106 F.3d 28, 33 (2d Cir.1997).

The Department urges us to do so here. Evaluating such a request requires the court to consider the traditional equitable factors as apparent on the existing record. See, e.g., Inverness Corp. v. Whitehall Laboratories, 819 F.2d 48, 51 (2d Cir.1987). We do not believe that a reviewing court must entertain such a request; if the record were so deficient as to make effective evaluation of the equities impossible, a court might do better simply to vacate the injunction as a matter of course — -especially where, as here, the injunction was sought only rather obliquely. As later sections will show, however, the record here is enough for us at least to make a reasonable appraisal of the Department’s eventual likelihood of success on the merits, and this factor proves disposi-tive. Silence at this stage would risk consid*945erable waste of litigative resources. “When the district court’s estimate of the probability of success depends on an incorrect or mistakenly applied legal premise, ‘the appellate court furthers the interest of justice by providing a ruling on the merits to the extent that the matter is ripe, though technically the case is only at the stage of application for preliminary injunction.’” Air Line Pilots Ass’n Int’l v. Eastern Air Lines, Inc., 863 F.2d 891, 895 (D.C.Cir.1988) (quoting Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 832 (D.C.Cir.1972)). When reviewing preliminary injunctions we have generally not been hesitant to offer interpretation and guidance on the substantive legal issues. See, e.g., Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1243 (D.C.Cir.1980); Energy Action Educational Found’n v. Andrus, 631 F.2d 751, 761 (D.C.Cir.1979); Maryland-National Capital Park & Planning Comm’n v. U.S. Postal Service, 487 F.2d 1029, 1041 (D.C.Cir.1973). We thus turn to the interpretation of § IV(E)(i), on which the merits of the Department’s case depend. Our review of a district court’s interpretation of a consent decree is de novo.7 See, e.g., Richardson v. Edwards, 127 F.3d 97, 101 (D.C.Cir.1997); United States v. Western Elec. Co., 12 F.3d 225, 229 (D.C.Cir.1993); United States v. Western Elec. Co., 900 F.2d 283, 293 (D.C.Cir.1990) (“Triennial Review ).

IV.

Section IV(E) arose from a 1993 complaint filed with the Directorate General IV of the European Union (“DG IV”) (the principal competition authority in Europe). Novell, a rival software vendor, alleged that Microsoft was tying its MS-DOS operating system to the graphical user interface provided by Windows 3.11. Before the introduction of Windows 95, which integrated the two, Microsoft marketed the DOS component and the Windows component of the operating system separately, and Windows 3.11 could be operated with other DOS products. But Novell, which marketed a competing DOS product, DR-DOS, complained that by means of specific marketing practices — particularly “per processor and per system licenses,” J.A. 754— Microsoft was creating economic incentives for OEMs to preinstall MS-DOS as well as Windows 3.11, thereby using its power in the market for DOS-compatible graphical user interfaces (where it commanded a near 100% market share) to affect OEM choice in the DOS market.8 J.A. 839-48.

During June 1994 negotiations with the Department, Microsoft proposed the possibility of a joint settlement, and representatives *946of DG IV participated in meetings in Brussels and later in Wasl Ington, D.C. On July 15, 1994, the three sides reached agreement and Microsoft and the Department signed a stipulation agreeing to entry of the consent decree, including § IV(E). Both Microsoft and the Department characterize § IV(E) as an “anti-tying” provision.

Microsoft and the Department engage in a brief battle over the extent to which antitrust law may be relevant to this dispute. Without wasting time on the parties’ somewhat exaggerated positions, we can simply say that Microsoft is clearly right that the decree does not embody either the entirety of the Sherman Act or even all “tying” law under the Act, and the Department is equally right to point out that the consent decree emerged from antitrust claims, unresolved though they were, so that we must keep procompeti-tive goals in mind in the interpretive task.

As Armour makes clear, however, an antitrust consent decree cannot be read as though its animating spirit were solely the antitrust laws. “[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” 402 U.S. at 681-82, 91 S.Ct. 1752.

The court’s task, then, is to discern the bargain that the parties struck; this is the sense behind the proposition that consent decrees are to be interpreted as contracts. See, e.g., ITT Continental Baking Co., 420 U.S. at 236-37, 95 S.Ct. 926; Richardson, 127 F.3d at 101; United States v. Western Elec. Co., 894 F.2d 1387, 1390 (D.C.Cir.1990). To find the meaning of an ambiguous provision we look for the intent of the parties, just as we would with a contract. See Western Elec. Co., 12 F.3d at 231-32 (reading ambiguous provision of consent decree “in light of the parties’ jointly intended purpose” (internal quotation omitted)); NRM Corp. v. Hercules, Inc., 758 F.2d 676, 681-82 (D.C.Cir.1985) (contract interpretation). In that quest we may rely on the same aids to construction as we would when interpreting an ambiguous contract, including “the circumstances surrounding the formation of the consent order.” See ITT, 420 U.S. at 238, 95 S.Ct. 926.

Section IV(E)(i) represented the parties’ agreed “solution” to the problem posed by the Novell complaint. The practices complained of there, coupled with the decree’s explicit acceptance of Windows 95, establish the competing models that guide our resolution of the present dispute. Whatever else § IV(E)(i) does, it must forbid a tie-in between Windows 3.11 and MS-DOS, and it must permit Windows 95. Thus if the relation between Windows 95 and IE is similar to the relation between Windows 3.11 and MS-DOS, the link is presumably barred by § IV(E)(i). On the other hand, a counter-analogy is Windows 95 itself, which the decree explicitly recognizes as a single “product” (it defines it as a “Covered Product,” § II(l)(v)), even though, as we have said, Windows 95 combines the functionalities of a graphical interface and an operating system. If the Windows 95/IE combination is like the MS-DOS/graphical interface combination that comprises Windows 95 itself, then it must be permissible.

The parties offer us little help in picking the correct analogy. Both propose readings of § IV(E)(i) that fail to reconcile its language with the facts of the Novell complaint and the later permissible release of Windows 95. The Department claims that § IV(E)(i) prohibits Microsoft from bundling together a Covered Product and anything that “Microsoft simultaneously treats” and “antitrust law regards” as “a distinct commercial product.” Department Br. at 37-38. It says that the browser-Windows pair is caught in the first filter (Microsoft’s treatment of IE as a separate product) because Microsoft provides it separately to end users, sells versions of IE 4 for different operating systems, advertises IE 4, tracks its performance in a “browser, market,” and distributes it on a separate CD-ROM. J.A. 32-37. For antitrust criteria, the Department draws on Jefferson Parish Hosp. District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984), for the proposition that products are distinct for tying purposes if consumer demand exists for each separately. (The Department notes correctly that this does not require demand *947for one product without the other but simply demand for the two ¡products from different sellers. ■ See id. at 19 & n. 30, 104 S.Ct. 1551.)

We are not convinced that these indicia necessarily point to separateness, especially those that depend on Microsoft’s treatment. Microsoft plausibly characterizes the IE that it provides to end users as an operating system upgrade, as does its rival Netscape, J.A. 589, and the Department offers no means of distinguishing an upgrade from a separate product. Versions developed for different operating systems may be better understood as different products altogether; hence, their relevance to separateness is obscure. Distribution of software code on a separate CD-ROM shows nothing at all about whether the code is integrated into an operating system (software for an operating system that is clearly a single product may take up many disks).

The Department’s interpretation of the “integrated products” proviso does nothing to remedy its reading of the body of § IV(e)(i). On the Department’s account, the proviso allows Microsoft to incorporate new features into an operating system and offer the package to OEMs —