Commissions Measures

By Matthew Broersma  |  Posted 2004-09-29 Print this article Print

If Microsoft is finally obliged to carry out the commissions measures by an ECJ decision—which could happen in the next few months—their effectiveness is not clear. PC manufacturers, if left to their own devices, would not be likely to choose to install a stripped-down version of Windows, industry analysts point out. As for interface protocols, the commissions decision does not require Microsoft to give away any information protected by intellectual property law. "Microsoft would be entitled to reasonable remuneration," the commission said in the statement outlining its decision. "The disclosure order concerns the interface documentation only, and not the Windows source code, as this is not necessary to achieve the development of interoperable products." If the ECJ decides to suspend the remedies, the pace of change in the software industry means that these remedies will essentially be meaningless by the time the wider appeal is resolved. The CFI could take four or five years to deliver a ruling—this week, for example, the CFI annulled a 2000 decision to block WorldComs attempted takeover of Sprint.
But if EU courts eventually uphold the commissions decision, it could create a far-reaching precedent, analysts say. If left undisturbed, the decision would give the commission a supervisory and regulatory role over Microsofts continuing operations in areas such as the Internet, mobile telephony and digital rights management, according to legal experts.
To win its appeal with the Court of First Instance, Microsoft must prove that its case is viable, that it would suffer irreparable harm if the remedies were imposed immediately, and that damage to the company is not outweighed by benefits to the public. Microsoft is expected to argue that the decision would infringe on its limited-time exclusive rights, such as patents, copyrights and trademarks. Microsoft attorneys have suggested that revealing protocol information could expose new Windows vulnerabilities, which would be costly for the company to repair and could put the public at risk. Microsoft has also argued that the remedies arent necessary to allow competition, pointing to the success of rivals such as Apple, with the iTunes Music Store, and the Linux operating system. Click here to read about Microsofts tactics in battling Linux. For its part, the commission—reacting to defeats by the CFI in several 2002 merger-regulation cases—has gone to exceptional lengths to build a strong factual and legal case, according to legal experts Norall and Gowdy. Check out eWEEK.coms Windows Center at for Microsoft and Windows news, views and analysis.

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