Oh dear oh dear oh dear.
OK I love Slashdot. Really I do, I'm an avid reader and consider it as important as any other news source. Its greatest strength however is also its greatest weakness.
You want some insightful commentary about tech stuff - no better place to find it. Thousands of highly intelligent geeks with jobs or at least an interest in the tech sector make for good counsel.
However the whole Digital Rights Management melee and many other topics which aren't directly applicable to technology itself bring out something hideous. Something Fearful! Something Downright Nasty!
Geeks commenting on Laaaaaaaaaaw!
Nothing, and I repeat nothing is more farcical than people debating law who haven't studied it. I know for a fact that I'm not going to start arguing with some barrister about a point of law because he has had years of training ahead of my own and in the same way I laugh piteously at a layman who tries to argue about a matter of law with me.
Only the people on the ladder realize quite how far apart each rung is and how high the ladder itself can be.
So when geeks who are used to knowing everything about one matter (Perl, C++, System Administration etc) are given a matter they know a small bit about, they seem to fly off the handle and assume their pre-eminence in matters of technology applies.
Therefore I present to you - Fisking Slashdot:
"The thing is, I couldn't give a monkey's butt if Real Player goes away for good. It's second rate and noone likes it. What I do care about is the future of computer interfaces - and this ruling just put us nearer to the command prompt a further from minority report. So, let's say WMP is taken out for 'anti competitive' reasons. What next? Longhorn can't ship with Avalon (which was going to give me a cool 3d interface, a richer media experience, a touch of the future) becuase Macromedia get's scared that it will crush Flash and goes telling on them to the EU? How ridiculously unfair is it to tell a company that it can only add new features 'as long as they aren't very good features' (i.e. no chance of competing)? Would you want a bunch of dim-witted EU lawyers designing your next-gen product for you? AARRRGGGH."
Riiiiiiight. OK where to start.
Microsoft was fined for contravening Article 82. I'd rather not paste the Article details here so instead I'll give a summary of the established test for whether a breach of Article 82 has occurred:
The undertaking (any entity carrying on a commercial or economic activity including professionals, and public authorities when acting commercially and not in their official capacity) is in a dominant position (established in the case of Akzo v Commission if you want to go by Market Share, but the share can be as low as 39.7% as was held in Virgin v British Airways)
The dominant position is held within the common market or in a substantial part of it. (a single region of the union, even a town can be considered a "substantial part" of the EC for the purposes of this matter. Since Microsoft is everywhere this is a no-brainer)
The dominant position has been abused.
This was defined by the European Courts of Justice in the case of Micheline v Commission:
"Article 82 Covers practices which are likely to affect the structure of a market where as a direct result of the presence of the undertaking in question, competition has already been weakened and which, through the recourse to methods different from those governing normal competition in products or services based on traders' performance, have the effect of hindering the maintenance or development of the level of competition still existing in the market"
Microsoft affected the market in 2 ways:
Firstly they deliberately restricted interoperability between Windows PCs and non-Microsoft work group servers.
Secondly they tied in Windows Media Player with it's Windows Operating System.
To take the words of the commission themselves in their summary document:
"The issue at stake in this case is ultimately the question of whether, pursuant to Article 82 of the Treaty, Microsoft provides to its competitors in the work group server operating system market the interoperability information that it has a special responsibility to provide."
They commission held that... No! Microsoft wasn't doing any of that at all!
Tying in Media Player is an obvious no-no as there is a huge body of case-law behind it where other companies breached Article 82 through it. The main cases on tying in products are Hilti AV v Commission, Tetra Pak and Vanden Bergh Foods.
The abuse may affect trade between member states.
The commission deals with this in 6.2.1.1.4 of their decision which is available here.
So in summary. It's not wrong for Microsoft to add new features, it is however wrong for the company to tie these features into their operating system or to bundle them for free because by doing so they are contravening Article 82 and abusing their dominant position.
Stop bitching dude. They're guilty, they broke the law and contravened Article 82 by abusing their dominant position to throttle competition. European Lawyers won't be designing your products, they'll be the ones letting you design your products because Microsoft hasn't kicked you out of the market by abusing their dominant position. To put it simply you're paranoid and wrong.
Additional: Anti Competition law does not have as its aim, the prevention of any one company obtaining a dominant position in the market, indeed with the classification of a company having as little as 39.7% marketshare as 'dominant' (as was held in Virgin Atlantic/British Airways). It would be utterly nonsensical to suggest this.
Later
John
Posted by John Swaine at April 23, 2004 10:08 PM