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Day two: Judges move…and speak!

The smart choice: opportunity from uncertainty

MS v EC After the first day with Court judges strangely silent, it was a relief to finally hear them speak and see them move. The only light relief yesterday was watching the glamorous Spanish interpreters who looked like they were commentating on a football match while fighting off a swarm of bees.

We heard first from Irish judge John D Cooke, who began by questioning how Microsoft defines its Media Player as part of its operating system on Windows but not for the similar product it offers to run on Macs. He returned to the commission point that Target Designer for Windows XP Embedded defines Media Player as an application.

Will Poole, Microsoft VP, said it was common practice for software developers to call things they can see on screen applications and things you cannot see as infrastructure, but the process was rather arbitrary. To laughter from the court, he said if Microsoft was defining applications and infrastructure in Embedded Windows now, it would do so differently.

Judge Cooke also questioned if Microsoft, at the time of the original bundling, could have acted differently. It added streaming functions to its Media Player and bundled that product. Poole confirmed it could have continued its previous policy.

Questioned on the emails on repositioning the battle with Real, Mr Bellis stood up with a aposite quote for Richelieu: "If you give me six lines written by the most honest man I will find something in them with which to hang them."

Judge Cooke asked whether the bundling decision was one of marketing or operating system strategy. Poole said it was part of the evolution of the operating system.

The court then turned to the commission's case.

Judge Cooke asked if other operating systems were available without a media player, something Microsoft disputed in court. He was told Apple ships its OS with both iTunes and QuickTime but both can be removed.

Cooke asked if the commission intended to separate applications and operating systems. The commission's lead barrister, Mr Hellstrom, said no: the remedy allows Microsoft to continue bundling, but it must offer a choice.

He was asked why it would not be enough to hide the icon for Media Player, which forms part of the settlement reached with the Department of Justice in the US. The commission believes that because the Media Player would still launch when an attempt was made to access Windows streaming media, there would be no impact for content providers – they would still favour Windows because they would know that effectively all customers would have it.

The court heard further debate on the quality of data on usage of media players, on why users' ability to download alternative media players is not enough of a remedy, on the relative market share of Word, on the importance of sales of server licenses to media player providers, and returned again to whether it would be enough for Microsoft to effectively hide Media Player from users.

Stayed tuned, we're back in court tomorrow morning to hear the other side of the case – interoperability and server APIs. ®

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