Strong Spine, Weak Underbelly: The CFI Microsoft Decision

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Harry First, Sep 28, 2007

INTRODUCTION The CFI’s decision in Microsoft came as something of a surprise. In the run-up to its issuance, commentators had been predicting some sort of “split-the-difference” approach, seeing the Court as most likely upholding the Commission’s decision on Microsoft™ refusal to supply interoperability information to Sun but reversing its decision on Microsoft’s refusal to dis-integrate Windows and the Windows Media Player. I thought the opposite. Immediately after the Commission’s decision in 2004 Microsoft had petitioned the CFI for interim relief to suspend the Commission’s remedial orders. Although the CFI denied the petition, Judge Vesterdorf, President of the CFI, had not dismissed Microsoft’s attack on the interoperability issue out of hand. He recognized that there was a serious dispute on a number of points. Was the protocol information “indispensable” within the meaning of prior case law? Was the assertion of intellectual property rights to these protocols sufficient, in itself, to constitute an “objective justification” for a refusal to provide the information? Microsoft’s contention that the Commission’s decision was wrong on these points, Judge Vesterdorf wrote, “could not be regarded as prima facie unfounded.” I took that to mean that Microsoft had some plausible defenses.

The surprise, to me, was how completely and thoroughly the CFI demolished those defenses. This was a…

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