MS EC appeal kicks off

'The bell once rung cannot be unrung'

By Lucy Sherriff, 30th September 2004

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Microsoft has told the European Court of First Instance that it should not have to share information with its competitors, arguing that revealing its secret would harm it irreparably.

In March, the European Commission ruled that Microsoft had violated anti-trust law and abused its monopoly position. It imposed a €497m fine, and ordered the company to makes its protocols available to competitors.

Microsoft will appear in the court again tomorrow, where it will continue to press for the European Commission to suspend the ruling. A lawyer for the company said that this was the first time in history that a company had been ordered to deliver its "secret technology" to its competitors.

However, Jeremy Allison of Samba argues that Microsoft has been happy to share its secrets in the past: "Microsoft has given to the Samba Team in the past internal documents describing exactly the level of protocol information we now need," he said.

He added: "They gave us these documents knowing we would create code with them, and they encouraged this. We were not required to sign non-disclosure agreements to obtain this information, we were simply treated as a trusted third party."

To have the penalties frozen, Microsoft needs to prove that it will suffer irreparable harm if it shares its protocols.

Its legal team says that disclosing the information is a one-way journey, and company lawyer Ian Forrester even became quite lyrical: "The bell once rung cannot be unrung," Reuters reports.

However, convincing the court that it will lose market share permanently will be quite a task. Lawyers acting for the European Commission argue that Microsoft has failed to prove that it would be harmed, and says that any licensing problems could be sorted out using non disclosure agreements.

Tomorrow, the court will hear evidence from RealNetworks and Microsoft in relation to the EC ruling that Microsoft should ship a version of its operating system than doesn't include Windows Media Player. ®