Strong Spine, Weak Underbelly: The CFI Microsoft Decision

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Harry First, Sep 28, 2007

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’s 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 an opinion in the style of Woody Hayes (the legendary Ohio State football coach) three yards and a cloud of dust, relentlessly moving down the field, but with few exciting long passes. On virtually all points of contention, the CFI, after stating the arguments on both sides, agreed with the Commission’s analysis of the applicable case law and how the Commission marshaled the facts to support its conclusions. Indeed, the Court’s language on more than one occasion shows, perhaps, some impatience with Microsoft’s arguments. For example, the Court stated that Microsoft’s complaint about whether the Commission needs to prove more than a “risk” of anticompetitive effect in the targeted market “is purely one of terminology and is wholly irrelevant” (para. 561). “Microsoft’s assertions [about its competitors in the work group server operating system market] – are scarcely credible” (para. 592). Microsoft’s arguments about the exact language of Sun’s request “are purely formal and must be rejected” (para. 773). Microsoft’s arguments that the bundling analysis is inconsistent with Article 82(d) of the EC Treaty “are purely semantic and cannot be accepted” (para. 850). Microsoft’s arguments that tying the Media Player to Windows did not result in foreclosure of competition and that the Commission applied a new and speculative theory are “unfounded and – based on a selective and inaccurate reading of the contested decision” (para. 1033). Not the first time Microsoft has aroused these reactions, as I will mention further in this paper.

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