 We always say we have an all-star panel, but this time we really do. I guess I should say it's a Hall of Fame panel, since we always say all-star. And not only do they not need any introduction, they've actually already been introduced today, so I'll dispense with that part. So let's go straight to the first question. And the question I want to ask is, looking back with 10 years of perspective, what would you have done differently in the case? What's your biggest regret? And I guess for Keith, the version of that question will be, what should Microsoft have done differently in this litigation since you've taken a pro-Microsoft stance in your articles? So why don't we start actually with Doug? For all this, I can't think of anything... No, that's not an acceptable answer that you did everything right in this kind of case. Boy, I wish you'd sent me that question in advance. I wasn't happy with what happened after the D.C. Circuit decision. That wasn't on my watch. Not so much, by the way, and we'll get to this, I hope, because I think the remedy was weaker than it should have been, but because I thought it was the articulation of what the case was about was not accurate and not constructive. But in terms of what happened before then, I wish we hadn't brought the so-called contempt proceeding. I think that was that proved to be kind of a pointless fire drill in a sense. Let me think. I don't know. I'll pass on this one. Can we come back? Well, let me follow up. So no regrets about having the remedy decided in such a short period of time? Oh, yes, of course. How could I forget that? You mean the divestiture remedy? Yeah. Oh, yes. That was a disgrace. I mean, for the judged or divestiture, without a hearing, was a disgrace in my view. And I guess there are limits as to what I can say about internal discussions, but suffice to say that there were some people, and I will say that I was one of them who thought it was just simply indefensible, and that we should have perhaps made an effort to undo that for two reasons. One, because it would have been irresponsible to have such a remedy without a hearing to determine whether the costs were vastly greater than the government alleged them to be. And second, because keeping that record the way it was, I think did, or at least potentially jeopardized the liability determination. I mean, the Court of Appeals, I think, was remarkably statesmanlike. They could have reversed the whole thing based on the... Not analytically, but they could have inferred from the remedy coupled with Judge Jackson speaking of the press that there was something really wrong with the whole damn process. And that could have motivated them to reverse the Section 2 judgments. So that was a sort of a risky course, but the Court of Appeals didn't do that. So, ultimately, there was no harm, it seems to me, from that. So, Brad, what do you think Microsoft's biggest missed chance was? Well, it's not easy, and it's not necessarily fair to sit ten years later in second-guest decisions that people made, even though I'll confess that when I was listening to David Boyce this afternoon I did, on one occasion, ask myself, I wonder how our case would have gone if he had been our lawyer. So, one can ask things like that. I do wish, in some ways, that when the negotiations accelerated in 2001 there might have been an opportunity to include the European Commission in that process. When we had had issues arise in 1994, there was a tripartite discussion or negotiation, if you will, between the Department of Justice and the European Commission and Microsoft, and as a result we were able to resolve issues on two continents in a unified and consistent way simultaneously. And the discussions were already quite complicated, and it's therefore easy to understand, at one level, why the Europeans were not at the table, but if they had been, it might, who knows, have been possible to work things out in a more global manner than proved to be the case. Was there actually talk at the time of them possibly getting involved in a global settlement? There was some discussion, but an invitation was never requested nor issued by any of the governments that were involved. And I think, among other things, there was just probably an appreciation that it was quite a complicated process as I think David mentioned before. It was, there had been seven rounds of discussions perhaps at various times, so one can readily appreciate why people would conclude that if one had the chance to get something done on one continent, it made sense to seize that opportunity and accomplish it. But I will say more generally, we were very supportive in 1994 of the concept of trying to bring together governments from both sides of the Atlantic, felt that it had been a beneficial process, and in general, I personally think that we just need more opportunities for transatlantic coordination on some of these matters. Keith, what do you think? Thanks, Einar. It's a lot easier to answer that question not having been involved in the case at all. Every year when I, and I assume, Einar, you've had the same experience too, every year you teach this case to your students, and then you get to the section where the court is going through the appellate court decision. It's going through these acts that are allegedly anti-competitive acts and the court goes through and says, well, for this one there's an anti-competitive effect and there's no pro-competitive or efficiency justification whatsoever for it. And you go through that several times reading the opinion and you end up asking yourself, how could this happen? How could you end up in an appellate court and to have these serious charges and the court is saying there's no defense whatsoever offered by the defendant. And I've had a consultant, a fellow named Mike Nichols, who apparently was one of the consultants involved in the case, come in and talk about the case in my class and I put the same question to him and so he goes into a long argument about how the trial was conducted. So I imagine that whatever went wrong, that was one thing that I think any firm would try to avoid and I certainly say that to my students that you're going to be out there practicing in a year from now and whatever happened during the course of this trial, you'd better try not to have this happen to you, end up in an appellate court decision with the court saying this about the defendant's management of its own case. So if there's some way, I don't know, maybe it's the way that Judge Jackson ran the trial that somehow this happened that there were these charges that just weren't responded to, but that leaps off of the case, out of the case right away as something that looks like a glaring problem in the way, possibly a glaring problem in the way it was conducted. Doug, you want to jump in on this? I have a comment on that. I mean, I wasn't deeply involved in the day-to-day trial, but a different perspective on the same issue. In the run-up to the trial, we had developed a lot of evidence and a lot of concerns about what Microsoft was doing and theories were developing and complaints were being drafted. And some of us on Joel's team had, in my case, 20-plus years of being a defense lawyer and thinking of the pro-competitive explanations for conduct is sort of what we do in our sleep. And so I was, oh, god, I remember these comments. You can justify that, of course. And we went back to Microsoft a couple of times in the 11th hour with interrogatories, specifically aimed at that. Tell us what exactly the reason is you did this or what revenues did you expect from that? And they didn't then answer those questions with articulating, I mean, I'm not saying 100%, but in many of them, they were not responsive. They appeared to have no explanation. So I think, I infer from that, although I can't connect those specific vague recollections with what happened in the trial, that the failure of Microsoft to persuade the court that there were legitimate pro-competitive justifications for the various things that the court found to be anti-competitive did not reflect, at least generally speaking, a happenstance of the trial so much as Microsoft's own perception of and ways of thinking about and explaining its conduct. Can I just add one thing? The consultant I've had in my class makes it sound, when I put that same question to him, he says, well, some of those things weren't important, didn't seem to be important issues at all and people really weren't paying attention to those. And then we were surprised to see this being treated as something important in the appellate court decision. Anyway, I don't know what way to put on that answer. So, Brad, is this fair, the court finding that there was no pro-competitive justification whatsoever put forward? Well, for what, though? I mean, there were so many issues in the case, it's a little hard to answer in the abstract. So I actually can't answer it in the abstract if there's a particular issue that people remember, I might be able to address it. Some of there were one thing that I think is, you know, as we pointed out, you could just think of them in your sleep what those pro-competitive justifications, so I assume it would not have been hard to come up with a pro-competitive justification if pressed on it. Yeah, I mean, but the thing to think about is the case was about a number of specific acts. So the question would be, well, what was the pro-competitive justification for act number one or act number seven? We'll say the integration of the browser. Well, I certainly do believe that we put forth quite a vigorous explanation for the pro-competitive effects of the integration of the browser. I mean, basically it was a sense that by adding this feature in the operating system, you could use the code that you created to serve a wide variety of different needs. That was one point. You know, for example, you take something as simple as HTML. You know, it's supported through an HTML rendering engine. And by building this into the operating system, it not only created the ability for the computer screen to display what someone saw when they went to a web page, but it also enabled all other software developers to use that tool as well, including for things as sort of as simple as help files, which are now routinely displayed in HTML by Microsoft Windows, its own help files, as well as most other programs that are created. In addition, and it really goes to the point that Dave Heiner was making this morning, the idea was to create a wide variety of services that could be then made available to software developers so that they wouldn't have to reinvent the wheel, so to speak, and create those pieces of code themselves. And the whole act of co-mingling, I think when we look back, co-mingling was an odd term. It's not a phrase that you hear software developers talk about. The notion that you could create code that would do multiple things is actually considered to be an efficiency in and of itself. The computer doesn't have to execute as many lines of code to do something. But I actually think that's probably an area where we did make a number of those arguments, and I think that as a result, the Court of Appeals decision was pretty limited, and what it really focused on was just the fact that there wasn't the ability to remove the code more than anything else. And so the lower court, though, was wrong, you think, in finding that, in fact, it worsened performance, this integration. It meant that if the browser crashed through the operating system, the finding that Judge Jackson made on that. I think that it would be fair to say that we felt at the time, or we would certainly say, we certainly feel today that the integration of these various features made the operating system a more powerful tool for software developers and made the personal computer a more powerful tool for computer users. All right, so on that, you made the argument but you just lost, basically. I think that at the district court, you might say we lost broadly on that point. And then at the Court of Appeals, because the tying case was reversed and remanded, the actual, if you look at the Court of Appeals decisions, there were a number of issues on which we lost on appeal, but on this specific issue, this issue is narrower at the appellate level. And what about the other issues where there was no pro-competitification offered for specific acts? Why was that? I mean, look, in the absence of somebody saying, do you remember this issue? There was no pro-competitification offered. I have no ability to remember what we're talking about here. Brad, I'll give that for you. So one of them is you can't remove Internet Explorer from the ad remove. You can't use the ad remove utility to take Internet Explorer off of the operating system. And the court looked at that and said, we can't find a pro-competitive justification for this. And also the co-mingling argument, there's no pro-competitive justification. Now, it strikes me as Doug was saying that we could think of one in our sleep and you offered one. And how did that happen that you end up in the appellate court? The court is saying, well, here are these things. And we can't see any pro-competitive justification whatsoever. So where did what happen to that justification? Was it given, but just disappeared somewhere? How is it that the appellate court ends up with no evidence of a pro-competitive justification offered? And I'll say, not having been part of the trial team, it's a difficult question for me to answer. I seem to recall that we may have and probably did offer a justification. Dave Heiner is likely to have more recollection of the specifics than I am on this. So it does go to the point about maintaining a common platform across computers from different manufacturers. And the point was, if you gave OEMs the right to remove the browser, and we meant really remove the browser, actually remove the code, then when the user gets a machine from HP, it won't run the applications that were built to run on Windows. And that's the whole basis of Windows, is that it is a common platform across all the different PCs, all over the world, all the applications run. That's the business model. And that defense was in the testimony of Paul Moritz. Now, when Professor Felton, and he's got his hand up, when Professor Felton then defined the browser as just the appearance to the end user, all those benefits sort of flow away because the code would then remain in the system. And so for purposes of defining is the browser beneficial in the system, the browser was defined to be this little thing, which is just the appearance to the end user. But for the purposes of considering the anti-competitive effect, the platform level competition, now we're talking about Netscape as a platform versus Internet Explorer as a platform, and then the division sort of considered the browser to be all of this code. And so it's kind of like two different definitions depending on what you were trying to achieve. But that was our pro-competitive justification. Before we get to Mr. Felton's response, I didn't see the efficiency justification. You said it was a common platform. Why is a common platform an efficiency? Okay, so the essence of a platform is the developers write code once, and then everybody can use it. That's the efficiency. 10x, 100x, 1,000x return on writing that code. The efficiency is demonstrated by the fact that the computer industry has developed along the lines of platform software. I mean, it could be you write all the code for every single function from the application layer through right down to the metal, right down to the chip, but that's not how it's done. So the efficiency is the concept of a platform. And what we were saying was, as technology develops, as the processor becomes more powerful and so forth, you want to expand the capabilities of the platform. Around the mid-1990s, what developers were starting to do was work with the internet. They were getting interested in HTML, as Brad was saying, as HTTP. And so we're saying with respect to Windows, you can let it stagnate, and then it will still be a platform for what it does, putting a window on the screen, putting up a dialog box, but that's it. Or you can say the direction of the industry is toward the internet. And so we built those basic technologies, most of which came from Unix, by the way, and so they weren't really in Windows, things like TCP-IP. And so we built that in to expand the platform. The efficiency is innovation. That's why there was something called the Freedom to Innovate Network. The innovation in the platform by adding new capabilities to it and then maintaining it as a common platform so that the applications would run, and this is the essence of a platform that it works, the applications will run on that platform on any PC. Without re-arguing the merits of this point, let me just say two things. First of all, I think what Dave was just saying is similar to the arguments Microsoft was making at trial, and there's not, I think in any of that, a justification for code being put in the same DLL as opposed to being put in separate DLLs. That is, there's not a justification here for commingling. I think much of Microsoft's argument on the tying issue was dependent on the idea that these files of code were indivisible units, and given that they didn't want to talk about an alternate world in which they were separate and to compare that world to the world that we were in. And so it seemed to me that it sort of flowed from the way they argued that part of the case, that they didn't want separation of those files into pieces and whether that would be better or worse from an engineering standpoint. They more or less treated it as an impossibility. Brad, do you want to respond or not? No. Okay. Suppose it's right. I mean, we can dispute whether in fact there was a good pro-competitification, but suppose a court has found that there is none. They've listened to what's offered, and I think there's really a pro-competitification. Should we just have a naked restraint rule for monopolization cases? If you've got nothing positive to say that's persuasive on one side of the ledger, and there's some possible anti-competitive story, why shouldn't we just condemn it summarily the way we do under the abbreviated rule of reason in any section one case where there's no plausible pro-competitification offering? Brad, why don't you respond to that? Well, to be honest, my reaction is a little bit of a reflection of what Doug was saying before. Given that antitrust lawyers can come up with these pro-competitive justifications in their sleep, I'm not sure that such a rule would have much practical effect. The truth is most of the time when things are done there's a variety of reasons that one might do them, and I think that it's hard to avoid the necessity for courts to grapple with harder questions, and one's not likely to solve these problems by being able to rely on simple solutions very often. Well, but at least if you credit what the court found in this case, it would be a simple solution to a lot of the conduct, and in LaPage's for that matter, a very controversial case, but the court found there's no pro-competitification at all offered, and actually seen in lots of cases where the focus is all on do we really do something bad, something anti-competitive, and very little focus on whether there's anything positive to say about the conduct. First of all, I want to say, you should have asked that question with your hand raised, because you know that I'm discussing a case from the other side of this issue right now, so therefore a trick question in Davidson. But I think the answer, and one could certainly debate this answer as a matter of antitrust policy, is that the antitrust laws have reached a judgment that except for certain kinds of conduct, like hardcore cartel conduct, that is so likely to have really significant harm to competition, that we don't want to have these per se rules in that this would be a per se rule, but a kind of if there's no justification for the conduct it's illegal, and it's really a built in suspenders. It's really, it's another one of these false positive stories that Andy was talking about. The law makes a judgment that we're not so certain that we're going to get it right that this is naked conduct so we're not going to condemn it without requiring the plaintiff to prove another hurdle, which is that there's, you know, however you articulate the test, that there's some real nexus between that conduct and harm to competition. It's a policy judgment. I think it's a logical matter. You could certainly reach the other result, and indeed, the Jefferson Parish per se tying rules differs from, you know, all other section two type rules, it seems to me, only in this respect. It's willing to presume harm to competition and I think it makes no sense to single out that for a lenient rule but in every other respect we don't do that. So let me switch to the other side of the coin of the regrets question, which is what do you think the other side should have done differently from their perspective? Not, I'm obviously you would say they shouldn't have brought the whole case, but I mean given their goals, what do you think were their missed opportunities? What moment did you think, thank God they didn't take advantage of this opportunity and do this to us? Brad and Doug and then from what I've seen, I think they were pretty effective, so there is nothing where I can sit back and say, oh gee, if only they had done this other thing, they would have really won the case. I think they did just fine. Maybe they could have persuaded the judge not to talk to the press, but I don't think that was in their purview. Again, the trial team could certainly answer in a way that I can't trial questions of trial tactics and the like. My perception mostly from the decision to bring the case and the run up to that and the meetings with Microsoft and then other more distant observations was that Microsoft for whatever reason, I have my conjecture but it's just conjecture articulated this case at a fairly high level of generality. It was a case about the right to innovate. It was a case about product design. It was a case about product innovation. And of course they I think made it, well at least in hindsight it was a tactical error, even disputing that they had monopoly power. And I think if they had looked my conjecture would be that they would have maybe been better served if they had looked at the case at a more granular level they would have been able to accept that it was an inside baseball story. In other words they had to join issue with the nitty gritty of just this exchange between Ed and David. It's not just about the platform but it's quite specifically about putting the code in the DLL. I think if they had thought of the case perhaps at a more granular level then it appeared to me they were thinking of it as it might have been a different situation. I thought David suggested they were on the granular level and they were losing because it was instead about the morality play. Well, clearly when the Alchin visual aid thing blew up, I mean things like that are pretty you're going to make it hard to win any case I suppose. But I'm not sure that what David said is necessarily inconsistent with what I said but I'd have to defer to Phil and Carmen that people who were at the trial to know whether what I said which clearly if there's no question I think I've accurately described the way the case was pitched to the division pre-complaint. What I have to be much more agnostic about is how it was tried because I just wasn't that close to trying to see. I see. Keith, what do you think the department failed to do? I think that we tend to miss how much luck has played a role in the whole thing. I think that the prosecution was lucky to get Jackson who I think bought into the morality play of the case. I think there are a number of judges, the Posner or Easterbrook type who would have been thinking about the economics and not have been so swayed by what people said in emails or things like that. Now, still could have come out the same way but I think it would have been a tougher case on the part. My opinion is it would have been a tougher case on the government's part largely because some of the more economically minded judges would have been thinking about the heavier thumb on the false positives problem. Another aspect that I would just sort of point to, sort of in the same context of sort of call it the vagaries or idiosyncrasies of a particular case or process, it was an interesting innovation if you will to have all of the direct testimony submitted in writing and to have all of the cross examination done in person. Because if you think about trying to evaluate someone's credibility, I actually think it's easier to do it if you first give the person the opportunity to tell their story and you can evaluate the person as he or she is telling the story and then you can evaluate the person as he or she is cross examined by the other side. So to some degree once the case became a test of credibility it was a factor that all of this knowledge about all of these technical issues were just submitted in writing and not discussed by the people who were quite passionate and well informed about them. I'm not suggesting the outcome would necessarily have changed but I actually think that there is a good reason that in most trials witnesses provide their direct testimony orally rather than in writing. Is that something you guys agree to or does the judge impose on you the no direct testimony live? I don't have a recollection myself. Okay. Frank, you wanted to say something? Well, from my perspective there were several things that have done a lot better. These are not grand things. These are things that involve the way you ought to be trying the case. The Alchin videos were, of course, one thing. Somebody should have caught all of those. But Schmalenzi's testimony was another. David mentioned earlier this business about Microsoft Schmalenzi testified that Microsoft had told them that they kept their records on little pieces of paper and they couldn't recover the information. And then we didn't add that Bill Gates came out a week later during the recess in the trial and boasted about the great electronic record keeping system. Somebody blew it there. I don't know, somebody told Schmalenzi the wrong story. His staff and then the lawyers failed to check on what seemed to be perfectly preposterous and was in fact perfectly preposterous. It was not the only occasion in which I felt he was being hung out to dry and unnecessarily so. I think it's interesting that Microsoft did not have an outside computer science expert testify for them. I think the decision to try to use their own executives to make that part of the case really played out as a mistake. Just having someone who had testified before and knew what it was like to be cross-examined, that person probably would have been careful about the videotape for example. I also think that an outside expert would have had a different perspective on Microsoft's technology and how it connected to the case that might have helped the legal team. Microsoft did designate a outside computer scientist expert and he was taken off the witness list after his deposition, if you recall. I forgot his name, but I think they concluded after his deposition that it was better off relying on their employees. I just wanted to jump in to try to refine a little of what David said and make sure that I don't think we get too far off tracking this idea of the morality play versus the sort of sound economic reasoning. In a sense, I got to watch this from a fun vantage point, in a sense the trial had two very different leaders, two people focused on very different things. There was David Boy's trial lawyer who knew how to convince and how to persuade and how to get the heart of Judge Jackson. And then there was Doug Melamed who was really the sort of intellectual compass and the sort of conservative cautious sound antitrust guy saying, you look you can do all sorts of bells and whistles, but at the end of the day we're going to present a solid case that makes economic sense. And I think those two were absolutely consistent. I think it's easy to get the idea that sort of flashy trial tactics and gotcha moments filled in gaps where there really wasn't sound economics or sound evidence and I really don't think that's the case. Instead, the credibility idea David was talking about is more, you know, you have two versions of the truth. You have two narratives and ours was based on a reading of Microsoft emails and Microsoft documents that didn't just sort of say go kill the competition, but told a very specific story. The OEM channel is the way we get the browser to customers. They won't use it unless we put it on the machine. We've got to tie them together. And so the credibility issue was more David set it up in the opening. There was a story told in the contemporaneous documents then and there's a different story as a matter of litigation that you might hear in the courtroom now and you should believe the old one, the contemporaneous one, not the new one. And to me the credibility was about that. It wasn't about, you know, we got them a few times, you know, they're not being as truthful as they should be and so forget about the substance design on that. You know, in my sense was the two were really proceeding in parallel and I think Doug would not have let us and often didn't let us take advantage of maybe cheap shots that didn't have a really solid doctrinal and economic underpinnings. So in terms of the lessons one draws from Microsoft, I wonder, there's a saying, hard cases make bad law. I wonder whether hard cases will make bad law lessons. Is this case so unique that we really shouldn't be drawing big general lessons from it or are there big general lessons to be drawn from this case? Keith, why don't you start? I had the benefit of going last and so I could listen to what these guys said and respond. Well, one lesson was reflected, two lessons were reflected in what David Boyd said in his talk. He said, well maybe if we could foresee what would happen with the European Union and other foreign competition regimes we might have thought about this a little more. Well, we're here today and maybe this might explain something for the 0000 pattern that Andy Gable was talking about for section 2 filings brought today. Maybe people are thinking about the cost of these things in terms of global regulation of firms. Maybe that's one harsh lesson that's sitting out there as a result of the case and people can walk away with their own interpretations of that lesson. Some people might say, well that just means you go after dominant firms even harder because you know that they'll kick off coattail lawsuits, prosecutions and other jurisdictions around the world. Others might say, well you need to be careful because you're going to end up multiplying the penalties by a thousand fold when you really didn't plan to do that. David also mentioned, went to this story about the decision not to install virus protection and that's always if Microsoft is hesitant about doing something that's good for consumers because it's afraid about lawsuits. And is that a good thing, a good result of Section 2 law? Well, you know, that's open. People can think about that. I don't think it's a good thing, but maybe people have different opinions about it. Interesting article in The Economist a few weeks ago about cell phone providers in Mexico and how the government had been concerned about one of the major providers having a dominant market share and so that provider kept its prices high to allow rivals to come in and compete. So there you have it, you know, there are real world examples of firms thinking about being punished for their market shares and so they back off from competition. That's the perverse of what that's not what the antitrust laws are supposed to do. They're not supposed to make a dominant firm shy away from competition and lawsuits. If that's a lesson that we've gotten out of the case that's another harsh lesson that we should be concerned about. I suppose there's some good lessons in terms of clarification of the law, but you know, I guess I'll hold off on those. Doug? Chief's comment just remind me I had a conversation with lunch with Brad actually about this when he spoke this morning. One of the things he said that I found troubling in connection with the antivirus story was a kind of description, as I recall him putting it, that Microsoft has learned that, I think he used the word mature which is interesting, but Microsoft has learned that it has responsibilities as a big company, as a dominant or I thought you'll be a dominant company that lesser companies don't have and I found that troublesome because to my least, I think I'm pretty close to US law. Any trust law ought to be encouraging companies to behave in efficient ways, ways to enhance welfare, and if they're doing that it shouldn't matter how big they are or what their market share is, that's permissible conduct and it's anti-competitive conduct if it's not efficiency or pro-competitive enhancing. I think Brad, you can correct me if I'm wrong, the thrust of what he was saying is that maybe that concern comes more from jurisdictions outside the US than from US law, I hope so. So if that's true, then the question becomes did the Microsoft case unleash the EC in Korea and all, and if so then you got to put some concerns about perhaps over deterrence from their activities in the scale of evaluating the pros and cons of this case. But if you assume that the Europeans would have figured out about competition law and about Article 82 even without the nudging of the Microsoft case, which I think is a certainty actually, then you can focus just on the impact of the Microsoft case within the US on US law and so forth. And there I think it's had a pretty salutary effect because I think it gave life to what had previously been thought to be a kind of artifact of the distant past, Section 2 of the Sherman Act, except when used by plaintiff strike suitors but it gave life to it in a sensible, I think doctrinally sound case that won the unanimous support of a very conservative Republican D.C. Circuit. Certainly judges Williams and Ginsburg had a heavy, heavy hand in the particular Ginsburg I suspect in that opinion and no one would accuse them of being on the left two-thirds of the political spectrum. So I think it was a sound case and I think also as David Boyce said earlier, it was done in a time frame that was meaningful. It wasn't like the IBM case, it dragged on like Jardine Dice versus Jardine Dice. So I think in those senses because it gave life to Section 2 in a doctrinally sound way, elicited an opinion that's in some ways a template map for future cases, how the D.C. Circuit and did it in a sensible amount of time, I'd have to say it was a success. Brad? I think the case has lots of lessons and if anything the challenge is how to distill them because there are so many that one could talk about and I think Doug and Keith have touched upon a number of them. One can start with the narrow and then I think go progressively more broadly. Certainly the case has a lot of lessons about how to try a case and win it. I think that I thought that David's talk this afternoon illuminated that very well. This basic concept that to win a trial you've got to be able to take something that's complicated and figure out how to simplify it. You have to figure out how to synthesize the technical complexities with a very human story because ultimately every trial is also a story. I think there's a lot of thinking back to admire it in the effectiveness of the case that the government put on in terms of the way it tried the case. I think that one can look at the case as a lesson of government intervention designed to advance some particular positions and move them forward. I was quite struck by the point that Doug made this morning about network effects I think it is quite valid to think about the fact that network effects were not as well understood were not as thoroughly embraced in the legal and policy community prior to this case and yet I think a decade later they are much more thoroughly understood by a broader circle and they should be because they do play a very very important role economically especially when we're talking about the kinds of phenomenon that we see unfold on the web. I think there are certainly lessons that one can glean for international and global interaction in either because in some cases things worked or in this case perhaps because they didn't but there are nonetheless some important lessons to be drawn. Doug is right in that I was pointing to the degree to which European law really does impose more limitations on companies that have a dominant position which is typically defined as having something on the order of a 30 percent market share and does take a different orientation than US law traditionally has done and Andy was talking about that a bit before. I will say though in addition to that I have been struck many many times over the last decade by the number of times I have had conversations with companies in our industry in Silicon Valley and I've talked about antitrust law and I have often been met I have felt with the reaction that antitrust law is something that is applicable to Microsoft. It's not applicable to us and perhaps there's a variety of reasons to account for that but I do think that there was a mistake that we made that may be being repeated by others when you live in an industry that is so dynamic you constantly feel vulnerable Andy Grove described it in his book only the most important and I think it's quite possible for people in the industry to feel that they are never going to be subject to section 2 because they're not Microsoft and yet section 2 doesn't refer to the word Microsoft and I think that there are some broader aspects there that it will be interesting to see as the law continues to evolve and as our industry continues to evolve how more companies really think about these principles. So one thing Doug mentioned was that the decision did finding liability what included the most conservative judges on the DC circuit including very sophisticated antitrust judges and I wonder do you think the judgment could be sustained under the new department of justice what standard or not would that standard dictate not bringing such a case or not finding liability? I think it could be you have to fly spec it more than I've done but I think the answer is yes it could be sustained in part because at almost all of the most conservative if that's the right word points in the decision there were sort of fudge words even refusals to deal the unilateral refusals to deal will not figure importantly or something like that in antitrust enforcement. They never slam the door shut and so I think a case that was grounded as this was in fact findings that the court of appeals affirmed that there was no legitimate justification for this conduct and so forth and I think it could be reconciled with the section 2 report. However, I think a justice department that would write such a report would not have brought that case. Well, but although there's they said there's no justification the anti-competitive effect was also sort of futuristic, right? There's a notion that Nescape would be a good platform for applications in the future so how do you have disproportionate anti-competitive effect to the program petrification has to be substantially disproportionate you only get to you only have to prove a disproportionate effect if there's a benefit to put in the balance and if you find no benefit as the courts did on almost all of the conduct challenged by the government then you don't have to get to the disproportionality test. But let me just expand for a minute because again it goes to other things on my mind a little bit. The causation injury to competition component of this opinion which is I think quite interesting in which some people from a plaintiff's perspective have read very broadly to say all you have to do to satisfy the injury to competition element in a Section 2 case generally is to identify conduct that has the potential to injure competition which seems to me means all you have to do is find anti-competitive conduct and you've written the second element out of the offense. And that's what the opinion actually means because this was a monopoly maintenance case the theory of the case was that Microsoft's anti-competitive conduct had raised entry barriers or put differently had reduced the probability of entry in the future and in a case with that theory it was perfectly appropriate I think for the court to say the theory of the case was raised it reduced the probability of entry to an incumbent monopoly we of course don't know what would happen what would have happened if those entry barriers hadn't been raised but we shouldn't have to prove that in the monopoly maintenance case that's very different from saying in for example an obtaining monopoly case that you don't have to prove that there's a causal connection between the conduct Keith, what do you think? First I guess I'd go back to my statement about luck and chance that Judge Jackson bought into the morality play view and not all district court judges would have been would have been inclined to do so so the prosecution was lucky in that sense and then Jackson also tried to immunize the case against reversal by making it so heavily fact bound so it could be that that very conservative set of judges who were looking at the case on appeal were constrained to a large extent by Judge Jackson's opinion which was everyone knows it's a long opinion pointing to all sorts of things that went on so the fact that you brought up so I know you brought up that it's a set of conservative judges well those conservative judges I think found themselves pretty severely constrained by the opinion that Jackson had given them to work with had said things been different at the trial court level and I think there's actually a high probability or substantial probability that things would have gone differently at the trial court level they had a different judge of the sort that I'm talking about I think your question also was would we see this kind of case under the current Department of Justice unless I'm missing the question I mean under the standard a neutral person applying to the standard not the current Department of Justice applying to zero cases standard but assume somebody's just saying this is the standard we have would it apply? so if I buy what the appellate court said about Microsoft's with respect to the specific acts that were found to be anti-competitive then it looks like it could be a case that they would bring today because they're saying well there's an anti-competitive effect and no pro-competitive justification whatsoever of course the question that raises is just what happened to the pro-competitive justifications because Brad has said well sure they were offered and Doug has said well he could think of some in his sleep I thought of some sorry let me just I thought of some too pro-competitive justifications could pretty much go down the list and maybe there might be one or two things that I couldn't try to explain on efficiency grounds but then there'd be a whole lot that I think I could come up with not knowing anything about how the firm works so it strikes me that something happened that there were pro-competitive justifications that I assume someone must have been thinking about or must have been there that didn't make their way and if that's the case pro-competitive just serious pro-competitive justifications or efficiency justifications then it's a much more difficult case and then I don't know if it would be brought by a neutral person today working under the guidelines that have been issued by the Department of Justice I want to clarify what I intended to say earlier and I have a hunch it's actually what you mean to say too and it is not that I know what the efficiency justifications were for this conduct I'm perfectly willing to accept the findings of the court that there were none what I meant to say was it's easy to think of the types of arguments you would make or the types of rationales that might justify these kinds of conduct but if the facts don't support them then I assume the conduct in fact wasn't pro-competitive one question is there any set of facts that could support some plausible efficiency justification and I think that's probably true in that case Brad do you think you went under the current Department of Justice report standard I'm not prepared to hazard a prediction on that but I will offer a couple of thoughts I do think it's worthwhile to just think about the fact that we often use this phrase section 2 and unilateral conduct but at times what is being tested under section 2 is not completely unilateral if you look at the 12 acts that the Court of Appeals found in the Microsoft case to have constituted unlawful conduct two thirds of them involved provisions in agreements with other companies so it was bilateral at least in that sense it's not that the second company violated the law there are provisions in agreements and I just find in general that in thinking about the application of this area of the law to the business activities of companies it's a lot easier to figure out what the law is likely to require and it's a lot easier to apply it when it's clear that there are certain types of contractual provisions that need to be avoided and indeed that's what the judgment reflects to some degree there's a number of types of provisions that need to be avoided where I get more nervous is when we're talking about software development activities that is genuinely quite unilateral and quite technical I respect Ed's opinions a lot it's interesting when he says well gee we should have taken the same code and put it into two DLL files instead of one and even if I accept that premise I will admit it makes me really nervous to think that it's the job of lawyers to be sitting next to engineers saying this is the way you should put your code into your files it's not trying to pick an argument if you will over that particular issue at that particular time but I do think that the law in general can be more easily applied with respect to some kinds of practices than it can be with respect to others yes you want to respond I want to respond on that essentially I think that the reason for the co-mingling of code is that there was a business person informed by a lawyer who told the engineers to co-mingle the code in order to satisfy the parentheses provided however that we saw earlier that says essentially that you can integrate things and so I think it doesn't make any sense to say that you can't look at that conduct which was essentially a business judgment based on an attempt to take a legal position all I can say is that the time this code was created we didn't have enough lawyers to do that kind of thing it just wasn't it's just not a possibility Dave Heider was our first anti-trust lawyer who by the way joined the company after windows 95 went out the door so I just don't think that was in fact the way things unfolded in reality so Brad there's a question hanging from earlier I want to give you a chance to answer what was Steve Ballmer and Vice President Cheney talking about I turned everybody I didn't know Steve met with Dick Cheney in 2001 I turned to our other folks I asked Dave Heider did he meet with Dick Cheney in 2001 and Dave said I thought you would know but I did ask John Wilkie and there were people who said at the time that Steve was going in and there was a pre arranged understanding that was announced by the White House that there would be no discussion of the case so now I'm just repeating what was told to me by the reporters so I have no direct knowledge of that myself I've never I don't recall ever hearing about the meeting so I will say I don't think it was anything of any lasting importance there was lots of issues to talk about and there was this other suggestion made that three senators got their talking points from Microsoft do you want to respond to that I don't know the specifics but look we answer questions from members of congress we provide suggestions to members of congress if something was said on March 24th 2004 everybody knew for a week that the European commission was going to issue its decision that day commissioner Monty announced on March 17th that they were going to do so so it certainly wouldn't have surprised me if some of our folks were up on the hill talking about the decision that we all knew was about to be issued all right David Boyce's talk why shouldn't it be deeply disturbing that is when we talk about our political process which to me people decry the fact instead of talking about healthcare policy and how to regulate subprime mortgages it's all about putting lipstick on pigs and how many houses does McCain have it's all these sort of gotcha stuff character stuff rather than the merits so why isn't this a profound indictment of our trial process rather than something to celebrate or bemusedly talk about and draw shouldn't the lesson be we should really change the trial process or at least perhaps at least have court appointed experts to help assess testimony in all these cases you really ought to be asking trial experts but he left so I can't ask that well there are others in this room I I did not take David's state very interesting talk to mean necessarily or even that he necessarily meant probably that that these morality plays lead to wrong results and I think following up on what Phil said a while ago you know if a witness is tripped up because he referred to the brown shoes he's wearing it's not going to make an impression on the fact finder I assume but if he's tripped up with something that's germane to the case while it might not literally prove the Alchin tape blowing up may not prove that what the tape purported to show couldn't have been shown by a proper tape but over the massive cases it may well be that those kinds of morality plays correlate very strongly positively not randomly or negatively with the underlying truth you're trying to get at and I'm not sure that David meant to say that morality plays theme he was talking about means that trials are random events at all No I agree he wasn't trying to say that but I wonder we wouldn't have a same reaction for politics I don't think or maybe we would maybe we'd say that all these character points instead of a jury having an electorate or who's right about complicated questions like healthcare so the best way to trade off is figuring out who's got a character who seems to share their values about hockey moms or pinks and lipstick or are they divorced from reality about having too many houses I suppose you could have the same kind of justification for that as well couldn't you Well if you look at the consistency with which elected officials implement their campaign promises one might argue that gut checks are in fact a better way to pick them than their platforms I mean it's the same question I don't know what the answer is but it seems to me it's not self-evident that technocrats are necessarily going to do a better job Frank has his hand up You want to put on your microphone? You don't have to throw things at me I'd like to say something about the suggestion about court-appointed experts in these matters I think there's a real problem there I've been in such cases but I want to tell you of a conversation I once had with Judge Wisansky who of course was the as it were the father of using an economist as a court-appointed expert and I once asked him this is a long time ago now of course he's been dead for a long time and I didn't go to a medium to ask this question but I asked him whether the experiment that he had with Carl Cajun had ever been repeated and to my great surprise he replied no and it never should be and I thought that was regarded as a great success I asked him why and he said because he thought that although he was very tough it could be said that the setup was such that Carl had too much power in the case so I asked him what would you do and he said well get a court-appointed expert and have the parties experts testify in front of him and then have him submit a report and that report would be subject to cross-examination by the parties in front of the judge but now we come to the problem I said has it ever been tried he said well it was tried once in a patent case in Arizona and I said and what was the result he said we don't know if the court experts report so sensible they settled immediately on the basis of it and I can certainly recall being in a case in which there was a court-appointed expert Dan Rubinfeld who gave perfectly there was a lot by the way of gamesmanship about suggesting who should be appointed as a court expert and so forth but in the end the court appointed a perfectly good one and the parties declined to cross-examine I don't know what the other side thought but my side I was on certainly thought we didn't want to annoy the judge by cross-examining her pet so it's not a simple matter I would just say that we handle litigation in roughly 80 to 100 countries every year so we get the opportunity to experience all kinds of systems happily most of these are cases that we bring ourselves against piracy or counter-fitting no system is perfect but I would much rather have our system than any other that we have seen I would much rather have a case decided by a judge who's appointed to lifetime tenure under article 3 of the Constitution who's genuinely independent of the executive branch who hopefully is given a sufficiently attractive salary to be attracted to the bench and to stay there for his or her career and I think that it in fact is better than anything I've ever seen even to have a generalist who is going to have to grapple with specialized knowledge I think David's point was really quite on the mark in terms of the pitfalls of specialist courts and it doesn't mean we should never have them not suggesting that it's a mistake to have the federal circuit but I just don't think it's feasible to construct so many of them that we just go to specialist court after specialist court by definition when you're making your case to a generalist or when you're acting as a generalist I mean I'm a general counsel and this is what general counsels have to do you have to sit down with people who know more about the subject than you do you have to learn everything that you can that you think you need to understand in order to make a decision it is important to test to assess whether the people who are talking to you really understand what they're talking about it is absolutely appropriate in these kinds of cases to assess their credibility and then you need to make a decision with the kinds of breadth of perspective that you can put into the position or onto the bench to apply it's not a system that is devoid of errors or warts and even when it's disappointing to lose I'd rather lose under that system maybe I might like to win under some others too but I'd still rather have the chance to win the next case under the same system alright before I open up the floor to questions Keith do you want to weigh in on this I'll pass on that so any other questions for our panel I was interested in the discussion that came when we talked about whether or not the case was a success and what the lessons were and it sounded like we were evaluating things about how clean the doctrine was or how well we educated the public and that kind of concerns me because it seems to me we're looking at here at heart is a government policy decision in the industry and antitrust law was just a tool that it used so the only exposed justification has to be when we look at the way that innovation and product development has come in the software and internet industries and maybe in the broader tech sector as Frank pointed out this morning it's followed a different pattern I would say significantly different pattern from the one that would have prevailed had the government never brought the case and so the ultimate question of success or failure has to be do we believe that we have healthier industries now than we would have otherwise and everything else is just sort of secondary I'm leaving about two minutes so I'm going to jump ahead and answer this question first and I don't agree with your statement of what the important question is there was no doubt in our in the justice department side of it we talked about it in these terms that this case was about two problems the Microsoft problem which is a shorthand of what you're talking about and the antitrust problem which is the issue of the suitability of antitrust a doctrine of attractability for the real world and now I will tell you that not everyone in the justice department would agree with what I'm about to say but my view is that the antitrust problem was the more important problem and the reason for that is this there are a handful of cases each year that are the subject of government investigation even in the the democratic years in that chart that was up here and maybe two handfuls that are the subject of private litigation but there are millions of decisions that businesses take every day around the country and the really important contribution of antitrust law to the economy it comes I think from the signals it sends to the business community not just the people making software or internet products but people making automobiles and widgets and whatever and if we don't get the doctrine right and couple it with procedures that enable us to have enough confidence in the accuracy of the decision so that it doesn't turn into kind of a random shooting or something we're going to be sending the wrong signals to the economy so I do think that getting the doctrine right is ultimately more important although I agree particularly in the industry of this magnitude and it sends to our economy that other question is an important one as well Harry? Yes, I agree Did I just go ahead? What was that effective? Did you pick up on that? No, I don't think the messages don't settle because I agree with a lot of what Doug just said I think that the lawyerly view of what's coming out of court cases you know you're getting these rules that signals to people about how to conduct their affairs and you're weaving this kind of fabric of rules and you'd like the courts to do that in a way that gets it right now that doesn't mean you never settle because sometimes you may get that fabric at a point where it's pretty good and you don't want cases coming in there and messing it up then because then you can get distorted signals and it doesn't help so that's one way of viewing lawyers tend to look at everything in terms of are we getting the right signals out of it and then there's the other way of viewing law and trials just on the operational question is the economy ending up is social welfare higher as a result and I think most people who aren't lawyers would ask that question is social welfare higher as a result of this case or that case whereas lawyers, myself included sort of ask this question are the rules the sort of fabric of rules that are coming out is that a good fabric coming out and are the courts doing a good job maintaining it Judge Medin it seems to me that in some ways cases like Microsoft or IBM or Standard Oil really have to be viewed in a different way I mean the doctrine might come out of it that looks good or doesn't look good signals might come out of it look good or don't but in some ways they're about a phenomenon that's concerned the public the business community they're huge the the oil industry the computer industry they're sort of phenomenon of their own they're not ordinary cases they're reactions to a situation where one will get changed people shouldn't have such touching faith in the notion that the judges are going to do this follow this rule in the next case they're trying to solve an enormous problem or at least it seems enormous to them in some ways either to talk about the doctrine or the message generally it would be better in a way to have a historian an economic historian talking about a modest a number subset of cases about which you have conferences like this I'm saying is that the public, the senators the justice department officials the business people who are complaining or supporting are all reacting to an enormous event that's happened a dominant company there aren't that many dominant companies big industries anymore that has excited everyone in the 1880's and 90's it was IBM later period it was AT&T and they're trying to solve a practical or what they perceive to be a practical problem and in some ways trying to treat these as points on a graph that's not really the way the people who are immersed in them think about them and it may not even be their main significance the fact that AT&T was completely reorganized the standard oil company was broken up that Microsoft was not probably not greatly altered but maybe to some extent those are sort of the lessons of the cases it seems to me it wasn't a legal lesson the case didn't come to a substantive conclusion with an outcome that was dictated by the lawyers the economy took well some cases have results where you get a decree and you get an enormous change some have no outcome or they have decrees where you don't get very much of a change I'm just saying that these cases aren't like other cases in some ways they're important it's not idiosyncratic but it lies in the event and while IBM the economy took care of it maybe it never should have been brought but AT&T on the other hand has changed the whole the whole world that's about all I can say you need a historian in support of that I guess I would say the fact that the judgment actually announced that tying doctrine unique to the computer industry suggests a pretty industry specific approach but then what really was the effect of the case because if it's not broad doctrinal change in the end internet explorer dominated still largely sold with the operating system despite these restrictions so if you take an industry specific approach what's really the upshot well the one thing I would say and there are certain things in what judge Boudin says that I agree with and there are other things that probably give me a little pause because there may be aspects about this kind of case that are unusual personally I tend to think that there's not much and I hope there's not much that is genuinely unique because to some degree the whole concept of having a system of laws is having principles that are going to be applied in other instances where other companies in this context are similarly situated now the interesting thing when you get to our sector information technology industry has quite a number of companies that have quite a high market share now one can debate how do you define the market but here in 2008 IBM sells 100% of the world's mainframe computers on which there is stored 70% of the government's data around the world and Frank others can say yes but servers compete with them and maybe they do but there is no other company that builds and sells mainframe computers today there's only one company that for all practical purposes makes a portable document format the Adobe PDF we've tried but I think Adobe has somewhere between 99 and 100% of the share and there's enormous network effects associated with that Google 60 odd percent of the search share in the United States it has over 90% of the search share in Europe it has over 70% of the market share for paid search advertisements here in the United States and even higher percentage elsewhere and there's enormous network effects associated with that and I could go on and on and we'd run out of time and you'd fall asleep but there are a lot of companies in our industry that have a high market share in certain product categories and if you were to look at their internal documents I think what you would find is they would have percentages that in many instances were in the 60s, 70s, 80s or 90s I'd like to follow up on Judge Badine's comment that these cases are solving perceived social problems these are gigantic problems that everyone feels we need to do something about I guess I'd like to resist that view I'd like to take a more boring view of antitrust law because that view generates to me some of the more worrisome parts of the law that people who squeaking wheel gets the squeaking wheel, noisy wheel gets the oil or something like that that people who just make noise that interest groups who push the government enforcement agencies to act those are the ones that's the places where we'll see enforcement people who have government connections they're better off than people who aren't I think that's the danger I guess that's the reason why I'm kind of resistant to that view of what antitrust law is doing under section 2 All right Newt, Harry Can you use your mic please Harry I want to agree with Judge Badine and with Doug if he were here because I'm sure that Doug would say I never brought this case because it's some great social confluence of something I brought it because we brought it or the justice department brought it because there were these anti competitive acts and you know it was a good legal case but as you look back on it and it's really striking when you think about the conference for a day and a half there is something else here it didn't trigger the case it happened around the case because of the company that Microsoft certainly was at the time and in some ways may still be but there was another aspect to it which you don't see until maybe afterwards that's historic and taking on a really dominant firm with you know long term monopoly power I don't think lawyers making enforcement decision I certainly don't think in this case said ah you know let's let's look and see what's the biggest you know monopoly that's durable and let's go after it maybe they did in Alcoa but we can't ask Thurman Arnold because he's dead but I don't think now that that's the way the decisions are being made but there is something different about this case it's hard to maybe put your finger on it completely and it does keep people interested hopefully interested enough to continue to buy books about it but then Andy's not here so one of the interesting impacts and maybe an unintended consequence based on what Brad just said is it's turned Microsoft into an ardent advocate of Section 2 enforcement you know at least in other areas of the software business I think that's probably good development I look I believe firmly that we should all in our industry be held accountable to follow the same rules at least if we are in a similar situation I believe that is the fair thing to do and certainly as an employee of one of the companies I think that it's one thing to be in an industry where everybody has to follow the same rules you certainly don't want to be the only company in an industry that has to follow a certain set of rules but just to build on that excuse me I thought this conference was extremely timely also because it's going to happen probably with about two weeks right until we have a decision in or some kind of recommendation in the Google Yahoo matter by the Department of Justice and there is a certain element of deja vu maybe characterizing that the situation is very very different among a number of dimensions but the question that I had was essentially what lessons do we have out of what's happened here that we can apply as advice either to Google or to the Department of Justice moving forward well I'll you know we've been quite direct in sharing our views about the meaning and implications of that agreement and I think it's important to recognize it's not a case that is about innovation it's not about how one designs and delivers a service it is about one thing and one thing only whether the number one company in a market sector a company that has 70% market share can enter into an agreement with the number two company in that market a company that has 20% share for the address purpose of in effect setting a floor on prices so that every time the number two company is not able to command a price for its advertisements as high as the number one company it can send those ads over to the number one company instead and get a higher price out of advertisers and the agreement was done by the number one company for one reason and one reason only to prevent the number two company from doing something in collaboration with the number three company that by every account would have made the market more competitive and in a lot of ways to me this is the kind of case that I think should be relatively easy to address we're not talking about interfering with the course of technology I've often been struck by an article that was written by an economic historian in the 1970s looking back at standard oil and US steel and the experiences that they had first when standard oil was broken up and then when US steel was not and basically what the historian found was how different their experiences had been standard oil had competed too hard and it was broken up as a result US steel saw what had happened to standard oil and so when they got a new CEO shortly thereafter he drove the company's work in a different direction and when a US steel case went before the FTC in the 1920s 220 witnesses from the steel industry testified all from competitors all in US steel's favor because the industry in effect had gotten so cozy that everybody was comfortable all of these competitors were entering into agreements with each other that no one wanted to complain and it actually sort of worked for the US steel industry until the 1960s when the industry globalized at which point the US steel industry was far less competitive than the steel industry in the rest of the world what does that mean when you put all of these things together there is nothing more dangerous to competition than the number one company trying to elbow out the number three company by helping the number two company raise its prices so Keith what do you think about the google yahoo deal I probably shouldn't touch that one because Brad has pretty strong opinions and has stated them pretty clearly from the the timing look strange and given that Microsoft publicly announced the purpose and the theory behind this merger so I guess maybe I shouldn't say more than that because I don't want to be seen as supporting Brad's case here anything just take a different that would be very unsettling do you have a prediction about what the department of justice will do no I won't offer any prediction on that okay I think we have time for one last question if people have one or if not we can just end a couple minutes early so thank you very much everybody for your panelists and thank you very much Einar Brad and Keith fabulous panel I can't think of a better way to end and as we wrap up let me just say thanks to all of you thanks for coming thanks for hanging in there through all of this thanks for really participating and engaging with everything that we're talking about and a special thanks to all of our panelists people who took the time to really prepare and get up here and share ideas with us a special thanks to Brad, Dave all of the folks from Microsoft who are such good sports that when I know at times are difficult subjects we couldn't have done this this wouldn't have been a meaningful conversation debate without you so we really appreciate you making that possible and maybe we'll see you all here 10 years from now when we're looking back on the 20th retrospective to think about what it means at that point so thank you again