Microsoft ruling may not bolster Europe's new case, warns lawyer
Don't count your chickens...
A landmark court ruling which last year backed the European Commission's last competition action against Microsoft may not be as helpful in its current action as has been widely thought, according to a competition lawyer.
The commission's 2004 decision to fine Microsoft €497m was backed by the Court of the First Instance of the European Communities (CFI) and the judgment is widely regarded as having strengthened the commission's hand for cases it has subsequently launched.
But an analysis of the decision by competition lawyer Adrian Wood of Pinsent Masons, the law firm behind OUT-LAW.COM, found that the case offers fewer comforts to the commission than many have assumed.
"There is still no real consensus on what [the Microsoft ruling] tells us for the future," Wood told OUT-LAW Radio. "The ability to have some form of over-arching broad set of principles was lost a little bit and so in that sense there is a disappointment there. We did not get crisp, clear, practical pointers for generic use."
The commission has begun competition cases against Intel, Qualcomm, and a new action against Microsoft in recent months, moves that have been seen as a reflection of its post-ruling confidence. But Wood said it ought not to rely too heavily on a judgment seen by some as flawed.
"In terms of the bundling of media player to the Windows environment the CFI took on board all of the commission's arguments without question," said Wood. "I think there were certain elements of the judgment where the commission is going to hesitate somewhat before relying fully on [it] as a way for going forward."
The new investigation into Microsoft will look into whether it is legal for a company with its market dominance to include web browser Internet Explorer with its Windows operating system. It will also look at whether the operating system allows for enough interoperability with other companies' software.
The case was sparked by a complaint from competing browser maker Opera. That company's chief executive Jon von Tetchzner told OUT-LAW Radio that he has every confidence that the previous Microsoft case is a positive precedent that he thinks will be followed.
"I think there are similarities. This is in some ways a very similar case to the recent [one]," he said. "I think if anything the browser case is even clearer. I do believe there are similarities. We are expecting good results out of this."
The two cases are similar: both involve questions of the interoperability of the Windows system and both rest on the legality of software bundling. The previous case hinged on the bundling of a media player with the system, the new case on the inclusion of a web browser.
Copyright © 2008, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
@ Anonymous Coward
Thanks for your point, which I agree with. Keeping Opera alive on phones and mobile equipment is something else than unbundling of Windows. The article speaks of unbundling of Windows, however, which was the reason for stressing my point that I do not want Windows unbundled for my home PC. I suspect the majority of ordinary PC users feels the same.
OS on home PCs is a different market from systems for mobile equipment, TVs etc. I do not believe Microsoft is very strong there, so there should be no cause for alarm. It is much better to keep the regulators out of the market; they are at the mercy of lobbyists, they really do not know what they are talking about - although some think they do because they have a PC - and there is a danger that they will regulate the market to death.
I must say I am surprised by several of the comments, showing a great deal of fear-mongering and hobby-horse riding.
OMG - So much Astro Turfing
Please don't water the astro-turf.
If you were genuinely interested in the anti-trust cases against Microsoft, you'd use a search engine against the terms "Microsoft antitrust" and then seek authorative third-party (non-MS, non-competitor) material, and then actually read it;
United States Microsoft Antitrust Case: 1998 - 2000 - 2002
"Welcome to this web site established for coordinated state enforcement of federal court judgments against the Microsoft Corporation for Microsoft's unlawful monopoly conduct. Here you can find information on the antitrust remedies ordered by the federal court and an on-line complaint form that may be used by the public to report suspected violations of the judgments."
European Union Microsoft Antitrust Case: 1998 - 2004 - 2007
"The web-pages referred to below provide information about the European Commission’s March 2004 Microsoft Decision, the Court of First Instance proceedings relating to that Decision, and its ongoing implementation."
"This Decision found that Microsoft had abused its dominant position in the PC operating system market"
How about that - on at least two continents:
Microsoft is a monopoly.
Microsoft acted unlawfully.
Microsoft has unclean hands.
Safari is not built into the OS
Safari is a separate and distinct application. You can delete the entire app and all its supporting files with no consequences for the OS at all. It is in no way, shape or form built-into the OS. Please do not tar Apple's *shipping* of a browser with the OS with the same brush as MS's *integration* of their browser into Windows.
There *are* alternative applications to iTunes for getting your songs onto your iPod. The directory structure is in plain site for everyone to develop an app to install music files onto the iPod (it is just hidden from view to the average user). You evidently just haven't bothered to look for them.
This isn't just about IE7 on Vista. This is about MS using their dominance in the OS and browser market to force the use of IE on other devices where they have not yet got any market foothold, such as mobile phones and PDAs. This is where Opera is currently strongest, hence their worries that they are going to be "Netscaped" or "Palmed" by the MS juggernaut.