New Blow for Microsoft in EU Row

twitter writes "The BBC is reporting on a stinging rebuke to Microsoft and their last defensive move in the EU anti-trust trials. Boston district court judge Mark Wolf accused Microsoft of trying to 'circumvent and undermine' European Law by requesting Novell documents. The story reminds us that last month, a federal judge in California denied subpoenas of Oracle and Sun for the same reasons, that a New York judge is currently considering a request against IBM and that Microsoft will be appealing their March 2004 conviction next week and may face millions of dollars of fines a day. New complaints were made just two months ago."

DAMMIT.

[StarKruzr]

So close.

Anyway. FTFA:

"Enforcing Microsoft's ... subpoena to Novell would circumvent and undermine the law of the European Community concerning how a litigant may obtain third-party documents," judge Wolf said in his 12-page decision.

Now that was a profoundly unexplained statement. Does anyone know why this is the case?

Why not subpoena in Europe?

[TubeSteak]

"Enforcing Microsoft's ... subpoena to Novell would circumvent and undermine the law of the European Community concerning how a litigant may obtain third-party documents,"

So why isn't MS going through the proper legal channels in Europe?

Even if their subpoena gets denied in Europe, they can later use the denial as a grounds for appeal (again, in Europe).

Re:I still don't get it

[7of7]

The rules about bundling are different for monopolies and non-monopolies That seems very sketchy from a legal standpoint. From http://en.wikipedia.org/wiki/Criticism_of_Microsof t#Government_anti-trust_suits/ [wikipedia.org] it appears that Microsoft originally was considered a monopoly for the sole reason that they had a large percentage of the desktop market. I fail to see how making Microsoft sell their OS piece by piece somehow decreases their ability to keep a monopoly. Furthermore, allowing other companies to engage in potentially monopolistic behavior simply because Microsoft has a monopoly seems just plain backwards. Perhaps the best end would be if the other shoe dropped and Microsoft were eventually split into a software and an OS company. At this point though, I fail to see how anything besides another company making a decent product, as Apple tries to do, and the FOSS movement is doing decent at with Linux/BSD/etc... would impact Microsoft's dominance in the operating system market.

Re:The EU justice system

[kylef]

Whether the EU system of justice is fair or not, those are the tradeoffs of becoming a multinational corporation.

Wait, so now a fair justice system is a tradeoff and not an expectation we place on any governmental organization?

So why should we Americans give a damm what Microsoft's legal troubles are in the EU system.

For that matter, why should we Americans give a damn about any injustice happening elsewhere in the world? Why don't we just seal up our borders and pretend the rest of the world doesn't exist?

Re:The EU justice system

[utlemming]

Not a fair chance? By what standards? By the American constructs of justice, they might have been given the short end of the stick. But according to European constructs, they may have been given a fair shake. When Microsoft entered European markets, they accepted the implications of it. When you go over to another country you implicitly accept their constructs of justice and law. That is why the State Department won't step in and save you when screw up in another country. Arguing and asking that Microsoft be given a fair chance by American definitions is just like asking that someone who is in another country recieve an American trial even though the crime is committed in another country.

The real issue here is that American's view other constructs of justice and social laws as being backwards and wrong. Who is to say that guilty until proven innocent is anymore right or wrong than innocent until proven innocent. I don't agree with the European method, but I am an American.

It is extremely myopic to argue that Microsoft, albeit an American company should be allowed to operate in Europe and at the same time only have to use American laws. If Microsoft is Europe and selling in Europe then Microsoft should be subject to the laws of that nation, regardless of whether or not Americans consider those laws to be just. It is not up to Microsoft to change those laws, and trying to use backhanded methods to compell what they want is not right.

If the constructs of justice are so maligent and repugnant, than why don't the Europeans change them? If Microsoft doesn't like the laws, then Microsoft can withdraw. No one is holding Microsoft in Europe; they are choosing to stay in Europe. And when their behavior is not to the liking of the European Union, it is not the place of an American to say that the EU is not treating them fairly, especially when most Americans, including myself, do not understand how Europe handles such issues. The world does not revolve around America, and American's need to respect the laws of another country, even when we percieve them to be unfair by our standards.

Now I realize that everyone is going to flame me about China, Iran and other countries that violate human rights. But this post is not referring to human rights. That is a whole different story. This is just about the social constructs of justice.

Re:I still don't get it

[Guppy06]

"Real and Apple have both done, IMHO, irreparable harm to themselves without the aid of Microsoft."

Both of whose players entered the market before Microsoft started bundling WMP. Why should we assume that no new/better media player would come along even if it didn't have to go up against MWP bundling?

Re:I still don't get it

[mrchaotica]

I am if I want to be able to watch Windows Media format videos, which is increasingly the case (most likely due to the influence Microsoft has gained through its Windows monopoly)!

In fact, I am now a second-class citizen, because I can't use some government services (i.e. downloadable audiobooks from the public library) due to the fact that they only support Windows Media DRM. Given that my taxes paid for that content, I ought to have a legal right to use it!

A Mindshare Monopoly - Not a Traditional Monopoly

[GenKreton]

Neal Stephenson stated it best in his essay (available free and legally on the web) The History of the Command line: Microsoft is not a traditional monopoly, and legally is not a monopoly at all if we follow strict adherance to the definition. It, however, does have a monopoly on the mindshare of the people. There is plenty of competition for MS, and much of it is arguably superior. The people just dont want to hear it, MS has won their minds. Of course one of the bigger results of this is driver companies focus and hardware support is done for them for free. But those are just imnplications which help hold the situation in place - economic intertia. Mindshare monopolies can be broken by seemingly inconsequential things.

I hate microsoft but I do hate to see them go down for things that aren't illegal really. Maybe if they were on trial for some other past deeds...

Bullshit

[Overly Critical Guy]

The EU justice system does not allow a defendant the ability to defend themselves against anonymous charges and secret evidence. If you are innocent, you must prove your innocence. Microsoft finds itself backed into a corner in which they are bombarded by name-less competitors and the evidence against them is kept secret from them.

Microsoft isn't backed into a corner; they know full well who the competitors are that are cooperating with the EU's mediator to determine whether Microsoft is providing adequate API interoperability.

Microsoft wanted to declare that the mere fact the mediator spoke with their competitors meant foul-play. Well, the mediator has to speak with those competitors to do his job--determining if Microsoft was providing adequate documentation. It was a stall attempt by Microsoft that was dismissed, so Microsoft tried it in the U.S. by requesting those communications, and now it's been dismissed again.

This has nothing to do with questioning your accuser. It's about Microsoft trying to stall by calling foul-play where there is none. The mediator's job was to speak to those guys to determine the level of Microsoft's cooperation with the ruling. That there are people still believing that Microsoft is a victim in this is insane to me, but you have your opinion.

Re:The EU justice system

[civilizedINTENSITY]

This is offtopic, but interesting. Are there legal ramifications to not declaring war? We seem to have stopped having wars, now we just kill. Why? There must be some sort of advantage, but I can't see it.

Re:Displace and distend

[Cadallin]

I rather thought they suceeded in the US by fighting a rear-guard delaying action, while waiting for an EVEN MORE* corporate friendly administration to come to power and call off the dogs. At least that's how I saw it.

*Please don't pretend the Clinton administration wasn't corporate friendly, it's just flat out wrong. The only difference was that Cliinton, being a Democratic Leadership Council owned democrat, at least put up an appearance of acting in the public interest, while the Bush administration has basically bent the united states over a table and made the whole country scream "Thank you Sir! May I have another?"

What the United States needs is the reincarnation of Franklin D. Roosevelt, a slavishly loyal Congress, a meteor to fall on the Supreme Court, and about 20 years.

MS can't win. And they know it.

[Opportunist]

MS is required to provide "meaningful" API documentation. Now, anyone who's ever worked for a large corp knows one thing: These docs don't exist. Never did. Never will. You know how it goes, you write software, it is late, you get pressure, you somehow patch it together and you finally check it in then fall into coma. Documentation? Read the effing source!

Now, RTFS works in house. Where you can, to some extent at least, hand over the source or at least the more important parts of it. Including "documentation" that goes along the lines of "and as the second argument, pass a structure to fill in so you know if the hack throws a fit worse than Balmer".

Can you hand out that kind of "documentation"? And is it "meaningful"?

Hardly. It would be, at best, an oath of disclosure of your inaptitude.

MS is indeed with its back to the wall. They simply CANNOT produce those docs. They most likely don't exist. Hell, the people who COULD write the docs most likely don't exist anymore there. Not even with "more time" they could give the essential information required. So they're playing the game of stalling, appealing, calling for aid to whoever is available and tries to grasp for straws.

Re:Microsoft Shrugs

[meringuoid]

I dont understand why MS doesnt just say "Ok, fuck you" and withdraw from europe. Refuse to sell their products or provide support to anyone in the EU and only provide support for existing liscences until they expire.

Most obvious reason: the EU is the world's biggest market. The MS shareholders would go berserk on the spot.

More subtle reason: if MS left, in an attempt to blackmail the EU... 'right, you don't like us, try doing without Vista!' one of two things would happen:

1) it turns out that the EU can do just fine without Vista. So why should anyone else cough up for the 'upgrade'? MS loses money.

2) it turns out that the EU economy is crippled without MS products. Very well: issue an edict, all Microsoft copyrights within the EU are revoked. End of problem. Microsoft screams in agony as every geek across a very heavily wired continent puts Vista up on FTP. Legally.

They Can't Afford to Lose

[carrier lost]

Microsoft is fighting tooth-and-nail to withold the information necessary to interoperate seamlessly with Office (particularly Word and Excel) and Windows.

Once that information is out, Samba, Open Office and a ragged horde of other smaller, free applications will slaughter those two cash cows and Microsoft will be mortally wounded.

Just my opinion, anyway

MjM

Re:Until

[cornface]

As long as you look at the $8,000,000,0000,000.00 national debt, the $400,000,000,000.00 deficit, the fact that Bush has borrowed more money in a few short years than every other administration in the history of the United States combined, our $723,429,444 annual trade deficit, massive consumer credit debt, the general population's lack of retirement planning or saving, and sky rocketing energy costs, and pretend that they aren't going to cause any problems, the economy is rocking and rolling!