MS v EC The Court of First Instance reconvened this afternoon to hear the commission’s defence of its anti-trust decision imposed on Microsoft in 2004.
The commission’s barrister Mr Whelan, in a blistering performance, told the court the two sides agreed on one thing - that the hearings of the last two days on Media Player had parallels with the server arguments in that it was another example of Microsoft leveraging its “super dominant” position in desktop operating systems to another area.
Whelan said Microsoft’s refusal to give rival firms protocol information after 1998 in an industry where that is normal practice created consumer harm in terms of denial of choice, stifling of innovation, and protection of Microsoft’s near monopoly of desktop operating systems.
After a brief explanation of terminology and network infrastructure, he said the commission accepts that there is some interoperability between machines running different operating systems, but that it was a question of degree. He reminded the court that at issue was interoperability of workgroup servers, not servers or computers more generally.
He said Microsoft was interested in interoperability before 1998 because its product was in a minority position. When this changed, it refused to provide the necessary information. Microsoft originally licensed its API’s to AT&T, which licensed it to Sun.
Whelan said Microsoft's claims of five ways to achieve interoperability were really three, and none of these were enough to allow effective competition. Using open standards like LDAP does not provide enough interoperability for domain controllers. Adding client side software is not sufficient because it involves extra expenses of installation and maintenance. Whelan said adding client side software would cost about the same as buying a Windows server.
The third method, reverse engineering, is too slow and uncertain of success. Samba version 3 was released in 2003 to address the demands of Windows 2000 and only allowed a machine to be recognised as a member server not as a domain controller.
On this morning's demonstration of Centrify’s software, Whelan said it did not allow a server to be considered a domain controller by Windows. He also noted that since the product came to market after the decision was made, it was not relevant to Microsoft’s claim that the commission decision was wrong when it was made.
Whelan further denied that the protocols the commission was demanding would allow rival firms to “clone” Microsoft machines.
Whelan said: “We are only talking about the rules of interaction between operating systems, no more than that. Rules of interaction refer to the structure of messages and reactions to such messages…. Source code is the implementation of a specification and you can’t create code from specifications.”
The fear of cloning was: “A smokescreen of emotive jargon.” he said.
Microsoft’s claim that protocols are protected by patent could only be proved by Microsoft, which had not substantiated the claim. Whelan said if protocols were covered by such patents, then presumably Samba was in breach of them.
Whelan said the elimination of effective competition is not incompatible with the presence of minority players in a market.
Whelan then turned his attention to the “mighty Linux”. He said even if Linux had a market share of between five per cent and 15 per cent at the time of the decision, it was made up of many different distributions so any claim of market share must be further divided. Whelan said: “It’s a reshuffling of the fringe, but a fringe it remains.”
In the only joke in a heavy afternoon thick with involved references to various kinds of competition, copyright and patent law court president Bo Vesterdorf recommended Mr Whelan rest his voice over the evening.
The court reconvenes tomorrow morning at 9am to hear from the interveners on behalf of the commission. ®