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1,787 copies in the wild

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MS v EU: Day one The first day of "l'affaire Microsoft" started with comedy when the audience stood up with the entry of assorted wigged and gowned figures. An usher told us, with some disgust, to sit because it was "only the lawyers".

The panel of fourteen judges* entered next, wig-free but wearing dark robes and strange white cravats that made it look like they'd hurriedly left lunch with their napkins still tucked in.

First up, the judges heard from Microsoft why the software giant believes the commission's decision on tying of Media Player was wrong both in respect to the market two years ago (when the decision was made), and now. The 10 men and four women listened in silence to the evidence.

Microsoft's barrister, Mr Bellis, said in 2004, when Microsoft was forced to offer an operating system without a media player - Windows XPN - demand for the product was theoretical. Now it is not.

Two computer makers, HP and Toshiba, expressed initial interest in the operating system, but neither has shipped machines with it.

Since March 2004, only 1,787 copies have been shipped to retail stores, but Microsoft does not know how many were actually sold. Mr Bellis suggested they may have been bought by people wanting souvenirs of the commission's anti-trust action. He said: "It's been market tested and it's failed." Or as he later put it: "Failure to offer a product which no one wants can't be abusive."

Microsoft's view is that the commission predicted that tying Media Player to Windows would stop customers choosing other players and that would, over time, mean that content providers would only provide content in one format.

But Microsoft sought to show that content providers tend to offer many formats and that the cost of offering different versions is minimal. It says this has not happened. Users continue to use different media players for different functions and two new arrivals, Google Video and Flash, show that the market is still open. Microsoft also noted that Apple had managed to sell 50m iPods without relying on Windows Media Player.

It also suggested that both computer manufacturers and end users have rival media players on their machines.

The court also heard that the forced removal of code to create XPN actually did more than just stop Media Player working. It also prevented rival media players from working and stopped machines playing CDs as well as other applications such as Napster.

The Association for Competitive Technology and the Computing Technology Industry Association said upholding the decision would have serious negative effects on their members. They also denied a media player should be seen as separate from an operating system or that including one such player meant customer choice was restricted - other players can be downloaded easily, are usually free, and don't take up much memory.

Independent software vendors, the court was told, expect such media functionality and depend on it to make their own products work. If it were removed, developers would have to write their own code to create the same functions. ISVs also benefit from Windows not being a fragmented platform.

The court was even treated to a demo of ProCoder, which successfully encoded a short video into three formats.

Before breaking for lunch the court was reminded of the outcome of the US anti-trust trial which eventually decided not to force Microsoft to remove code from its operating systems.

A Reg reader corrected us: it should be thirteen judges and one registrar.®

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