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								 <title>Record fine against Microsoft upheld by European Court of Justice</title>

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								 <h1>Record fine against Microsoft upheld by European Court of Justice</h1>


								<p>

								The European Court of Justice has ordered Microsoft to finally pay a record

								fine for using its near-monopoly position on the desktop to keep rivals out of the

								workgroup server market. Four years ago, the European Commission slapped

								the software giant with a fine of 899 million Euros for its anticompetitive

								behaviour. In today's ruling, the ECJ ruled that this unprecedented fine

								was largely justified.

								</p>


								<p>

								For a decade, the Free Software Foundation Europe has <a

								href="/activities/ms-vs-eu/ms-vs-eu.html">participated

								in the case</a>, also on behalf of the Samba team, which provides a

								Free Software workgroup server competing with Microsoft's proprietary

								product.

								</p>


								<p>

								"Microsoft remains a convicted monopolist, and was reduced to

								negotiating the terms of its punishment," says Karsten Gerloff,

								President of the Free Software Foundation Europe. "The court has

								reduced the fine by less than five percent. The European Commission

								was right in being tough on Microsoft. We have worked hard to support

								the Commission in this case, and are extremely proud of the victory

								we've achieved. We are grateful for the Samba team and all the others

								who invested so much effort along with us, and hope that the

								Commission will continue to push for an open, competitive IT market."

								</p>


								<p>

								The case shows that Microsoft has used patents as an excuse to not

								reveal their mundane changes to public protocols. The court recognised

								that the company was wrong to refuse to give access to the

								interoperability information unless a party took a license for patents

								too. This is an example of how software patents are a real and present

								damage to competition even if used out of court.

								</p>


								<p>

								"We have successfully asserted the rights of Free Software developers

								like the Samba Team to access interoperability information, but

								Microsoft refused our legitimate demands until the very end," says

								Carlo Piana, General Counsel for the Free Software Foundation

								Europe. "Today's decision establishes that we were right once

								again. Receiving the interoperability information was our right, not a

								concession by Microsoft."

								</p>


								<p>

								The threat to competition has not disappeared. Microsoft still attempts

								to bring increasing parts of the technology market under its control,

								and other companies such as Apple are following its lead. The company

								still uses patents to <a

								href="/activities/swpat/letter-20101222.html">put

								rivals under pressure and profit from their work</a>. It also uses new

								approaches to <a

								href="/freesoftware/secure-boot.html">restrict

								device owners from installing software of their choice</a> on their

								hardware. To counter these threats the Free Software Foundation Europe

								will continue to work for a free information society, and for the

								interests of Free Software users and developers everywhere.

								</p>


								<h2>Background</h2>


								<p>

								After the 2004 decision of the European Commission was upheld by the

								General Court of the European Court of Justice, in 2007 Microsoft

								finally complied fully with the provision to release timely and

								accurate interoperability informations with competitors under

								so-called "Reasonable And Non Discriminatory (RAND)" conditions.

								</p>


								<p>

								After Microsoft did not fulfil the Commission's requirements, the

								Commission finally set the fine for noncompliance to EUR 899

								million, assessing that up and until October 2007 Microsoft fell

								short of its obligations to offer RAND conditions.

								</p>


								<p>

								Microsoft contested this assessment and appealed to the European Court

								of Justice. The company claimed that because the information contained

								in the release of the information was covered by patents – and thus innovative – it was

								entitled to charge rivals substantial amount of money for access to

								this information. Not having received sufficient guidance, it was

								within its rights to set a high price for interoperability information,

								and in good faith charge running royalties even for the "trade

								secret" part, which was from the license for patents upon

								express request from the Commission.

								</p>


								<p>

								FSFE and the Samba Team (which is a licensee of the interoperability

								information, or "WSPP", through the Protocol Freedom Information

								Foundation) intervened in the case to deny that the information was

								"innovative". The only value attached to the information was to allow

								a drop-in replacement of network services to be created through the

								discovery of trivial details of the protocols. Whereas the general

								concepts, structure and engineering decisions were both well

								understood and not ground-breaking if taken individually, nor was the

								idea of combining them new or innovative. The Court

								upheld the finding of the Commission, finding that: "Microsoft in

								practice continued to refuse Free Software developers all access to

								the interoperability information, which was not something that the

								letter recognised it could legitimately do."

								</p>


								<h3>Contact</h3>


								Karsten Gerloff<br/>

								President<br/>

								gerloff@fsfe.org<br/>

								+49 176 9690 4298


								<p>If you wish to receive further updates, subscribe to our press release mailing list at <a href="/press">https://fsfe.org/press</a>.</p>

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