Table of Contents

Microsoft on Trial

Microsoft on Trial

Legal and Economic Analysis of a Transatlantic Antitrust Case

New Horizons in Competition Law and Economics series

Edited by Luca Rubini

This fascinating and highly relevant book facilitates discussion on the difficult technical, legal and economic issues with respect to innovation, competition and welfare raised, through the span of more than a decade, by the US and EC Microsoft antitrust cases. It assesses their impact on the evolution of European and US laws on competition and intellectual property in the IT sector and beyond.

Chapter 9: Microsoft v Commission: Interoperability, Emerging Standards and Innovation in the Software Industry

Ann Walsh

Subjects: economics and finance, competition policy, law and economics, law - academic, competition and antitrust law, european law, law and economics


Ann Walsh INTRODUCTION 1. In September 2007 the Court of First Instance (CFI) delivered its judgment1 on Microsoft’s appeal of the European Commission’s 2004 Decision. Following a long investigation, Microsoft was found guilty of infringing Article 82 EC,2 by abusing its dominant position in two ways ‘first by refusing to supply work group server interoperability information to its rivals, and secondly by tying its streamed media player Windows Media Player (WMP) to its Windows PC operating system. The remedy imposed involved a record fine3 on Microsoft and an order to end the abuses within specified timescales4 by supplying the required interoperability information5 and a version of Windows without WMP.6 After a controversial Commission Decision, the competition, intellectual property (IP) and software worlds awaited the CFI’s Microsoft judgment with great excitement, aware of its potential to reshape the thorny area defined by this intersection. Many factors contributed to this controversy, including the uncertainties surrounding Article 82 EC, the unparal- 1 Case T-201/04 Microsoft v Commission [2007] ECR II-3601 (hereinafter ‘CFI judgment’). 2 Commission Decision 2007/53/EC of 24 March 2004 [2007] OJ L32/23 (hereinafter ‘the Decision’). 3 Decision, para. 1080. 4 Decision, paras 1010, 1017. 5 Decision, para. 999. 6 Decision, para. 1011. 282 Microsoft v Commission: the software industry 283 leled power of Microsoft, and the differing US7 and European perspectives on the abuse of dominance.8 Since the judgment, controversies have mounted with concerns about the extent of CFI review of such complex technical and economic assessments.9 Generally attracting lesser...

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