EC's antitrust ruling infringes on Microsoft's Copyrights

Antitrust case far from settled

[cyril kearney]

Brad Smith, Microsoft's General Counsel is say that the EC's decision amounts to a "compulsory licence" of the Microsoft's intellectual property rights.

[biz.yahoo.com...]

If this ruling violates EU copyright law or World Trade Organization copyright obligations it could be overturned.

[bird]

I don't quite understand what their "compulsory license" talk is supposed to be about. They are forced to publicly document their APIs and protocols. Under the Convention of Berne, those are not considered protected intellectual property, so that no license is required to use them in the first place. In fact in previous cases, both in Europe and the US, courts have declared that APIs and protocols are one of the few areas, where a competitor has the legal right to reverse engineer a product to figure them out. Microsofts talk about "unprecedented access to its technology" is plain nonsense in such a context.

And even if they find a way to legitimately argue intellectual property, that won't give them carte blanche to exploit it by illegal means, which is what the EC has found them guilty of.

[cyril kearney]

You have a good point bird but my understanding is that it is more than just about APIs. One of the EU Commissioners Frits Bolkestein, the commissioner for the internal market is on record warning Mario Monti of this problem.

[infoworld.com...] is the best cite I can find now.

The EU ruling will be appealed along two main lines as far as I can see.

First, would be the copyright (and to a lesser extent patent) issues. Microsoft can appeal them to the European Court of First Instance. In 2001, the Court overturned the Commission on a similar licensing issue. If it rules for the Commission it might be at odds with its World Trade Organization treaty obligations.

Second, the fine is being imposed is for actions some of which are outside the EU. A US corporation is being fined for actions within the US that have been found not to be antitrust violations in the US. If the European Court of First Instance approves the fine, the case will probably end up in World Court.

[bird]

Monti may also demand that Microsoft itself should propose ... what Windows computer code it should reveal in order to make the operating system fully interoperable with rival software makers' programs

If Monti really went to demand them to "reveal code", then he tripped himself up in a major way. Interoperability requires that the API and protocol specifications be published, no revealing of code is needed for that. Requesting that just needlessly gives MS a copyright issue to complain about in court, but provides no benefit to the market.

Monti is very enthusiastic about his job, which is a good thing. But I wish he'd listen more carefully to the technical and legal experts sometimes.