Legal and Economic Analysis of a Transatlantic Antitrust Case
Edited by Luca Rubini
Chapter 9: Microsoft v Commission: Interoperability, Emerging Standards and Innovation in the Software Industry
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  ECR II-3601 (hereinafter ‘CFI judgment’). 2 Commission Decision 2007/53/EC of 24 March 2004  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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