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II.

Microsoft claims at the outset that the district court, after finding no contempt, should simply have dismissed the De- partment's petition. But although the petition was styled simply as one for an order to show cause "Why Respondent

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3 Additionally, by allowing OEMs to conceal IE, rather than to refuse it, the remedy fits poorly with the Department's tying theory. A tie-in is not affected by the purchaser's ability to discard the tied good.

Microsoft Corporation Should Not Be Held in Civil Con- tempt," 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 con- sent 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 contro- versy the meaning of s 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 con- tempt 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 some- thing else."

The 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 re- quests for clarification in the alternative. But they also often elicit declaratory clarifications, and sometimes even amend- ments, 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 Sys- tems, 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 11.4 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 explic- itly requested has at most construed the petition to contain an

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4 Microsoft then grounded its objection on the fact that the Department had urged the court "not to permit discovery, not to conduct an evidentiary hearing and to decide the matter on the papers before the District Court." Id. at 12. These objections, however valid, are completely independent of the theory we address here. As we find the preliminary injunction procedurally defective on other grounds, we need not reach them.

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. s 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.