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<?xml version="1.0" encoding="UTF-8" ?>
<html newsdate="2012-06-27">
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<head>
<title>Record fine against Microsoft upheld by European Court of Justice</title>
</head>
<body>
<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>
</body>
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<tag key="european-court-justice"/>
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