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Concern About Delay By EU Commission on MS |
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Tuesday, June 28 2005 @ 11:19 PM EDT
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The Free Software Foundation Europe is expressing concern about delays resulting from the flap over EU Commission Judge Hubert Legal's article in the French legal journal Concurrences (Competition). The article was on the EU Commission review process, in which he criticized clerks, whom he called "ayatollahs of free enterprise", saying they should avoid giving the impression of throwing their weight around. As you will recall, the resulting uproar resulted in a proposed revamping of the panel of judges on the case, increasing them from 5 to 13, transferring it to the Grand Chamber with Bo Vesterdorf, President of the Court of First Instance, presumably at the head instead of Legal. Now some say the change could result in delays of from three months to a year. For one thing, the file is huge and whoever heads the new panel would have to get up to speed.
Other than translation work, the case is now stalled and FSF Europe president Georg Greve says any delay "works for Microsoft." Well, what doesn't? The 25 judges have to meet to decide whether to agree to Vesterdorf's proposal, and it's not clear when that will happen. Naturally, I had to read that article and try to figure out if this was all a tempest in a bureaucratic teapot or just an excuse to topple a judge who might be leaning in a particular direction. I strongly believe in reading source documents, not just journalists' reports about them. That includes my articles too, which is why I always give you links, so you can reach your own conclusions.
So I obtained the article to see for myself what was so terrible about what Judge Legal wrote. I saw absolutely nothing that would explain such a huge reaction. All I got from the article was that he is not inclined to disturb decisions by the Commission lightly and he doesn't want to be pressured by clerks or anyone else.
It's in French, so I thought I must have missed a nuance or something, so I asked one of Groklaw's volunteer translators, Terry Cole, to take a look. I thought perhaps it might be something an American can't understand, but he concurs that it does seem to be a case of distress at Judge Legal airing internal dirty linen in public. Of course, this is about Microsoft, and that company has created an entire nation of cynics, nay, an entire world, thanks to its behavior. We remember what happened to Judge Jackson. Now, my cynical side began whispering in my ear, saying,
"Judge Legal is not inclined to disturb decisions he is reviewing. He was the head of the 5-judge panel reviewing the EU's strong ruling against Microsoft. Now he's no longer the head of the case. And for such a trifle. What is really going on over there?" However, Terry sees much less than my fevered brain and tells me his impression of the article: To paint the broadest possible brush on this, it looks as though the
senior judges -- himself included -- are used to being circumspect about
making decisions which are properly the domain of the legislature, but
that they expect the legislature to leave declaration of the law to
them, and this was not being adhered to.
Worse, a third force was appearing in the form of clerks and ancillary
personnel who came with prejudices as to the rightness of a case and
expectations as to the penalties for marginal infringement, which
effectively made them judges in place of the judges. That really was
the main thrust of Mr. Legal's opinion.
It was almost certainly what got him into hot water. The thing is that
no one familiar with the arcane goings-on in Strasbourg and Bruxelles
should be surprised. . . . but
his displacement doesn't mean MS is off the hook.
None of this really has any bearing on Mr. Legal's bias, if any, in the
Microsoft case. It is about the bias of Tribunal staff. And it's
probably true to say that Mr. Legal is not in as much trouble as those
staff.
It's true that he has been joined by other judges but having looked
into the Reuters report, despite appearances he is not actually off
the case. It's probably more the case that the other judges feel he
was a very naughty boy for revealing dirty linen in public.
If I know anything about the way a typical Juge d'Instruction would
feel about this, they will be very hot on preserving their authority
over the instruction. Napoleon famously said that the most powerful
man in France under the Napoleonic code was the judge in charge of a
case, and there are good reasons why that is still so. That is not a
power they will lightly surrender to politicos of any stripe, least of
all unelected ones.
Another detail to put things in perspective is this article (in French), which tells us that Judge Legal has overturned a major EU decision in the past. There is a computer translation into English, with the usual comedic touch:
Hubert Legal, judge with the Court of first authority European, would direct a team of three thus, even five, judges charged to make a decision unanimous on the call of the American giant of the software, that the Commission recognized guilty March of abuse dominant position on the market of the operating systems for personal computers.
The responsibility for the files arriving in front of the Court falls by bearing with the judges of the five rooms of this one, each room cash five members. . . . [Blink.] "Cash five members?" J'espère que non. : ) I enjoy computer translations so much. I'll be nostalgic when they work all the kinks out. More seriously, that article portrays Judge Legal as a strong jurist, not afraid to act on his convictions: Denis Waelbroeck, lawyer specialist in the right of the competition to the Ashurst cabinet in Brussels, explained that Legal had an image of authority and that it was known to raise very precise questions.
"It is a very strong judge (...) and Schneider-Legrand confirmed. It was not alone within the room which decided on this case but they did not hesitate, even if it were painful of saying to three recoveries at the Commission which it had been mistaken", has it says. I think you can catch the drift there, despite the computerese. I'd translate it more to say that Waelbroeck explained that Legal has the reputation for being authoritative, a very strong judge who has been known to ask very precise questions and doesn't hesitate to tell the Commission when he thinks it is wrong, ("C'est un juge très fort (...) et Schneider-Legrand l'a confirmé. Il n'était pas seul au sein de la chambre qui a décidé sur ce cas mais ils n'ont pas hésité, même s'il était douloureux de dire à trois reprises à la Commission qu'elle s'était trompée", a-t-il dit.)
I'd love to show you the whole article Judge Legal wrote, but Concurrences sells it, and of course it's copyrighted, so you will have to buy it for yourself (100 EU) if you want to read the whole thing. I actually found the site extremely interesting. Note this collection of links, for example. They have articles available for free too. They describe themselves like this: Concurrences is the first legal review in the French language to be dedicated exclusively to EU antitrust laws and national antitrust laws. A group of lawyers and economists, judges, university professors and attorneys, contribute every quarter to the various columns.
Here's a snip from Legal's article, used by permission, translated by Terry, followed by the French in smaller text, so you can translate for yourself if you are fluent in that language:
"Now, this Tribunal has no effective means of proceeding to a complete
recasting of Commission decisions. Given constraints on human and
translation resources, and equally on expertise, it must work within
self-imposed limits if it is to remain credible. Besides, overlapping
powers of the executive authority and its legal oversight makes no
institutional sense from any rational standpoint.
I have come to believe that there are only two coherent and convincing
organizational models appropriate to this matter. The present model of the
Community is one of them. It presupposes at the jurisdictional level a
judicial oversight, completed as and when the evidence and
documentation permits, by those charged with the review of the contested
decision. The other model is one in which the executive authority
establishes the facts and terms of reference then leaves the decision as
an exercise of judicial authority.
[Translator's Note: The writer here
appears to be distinguishing a Napoleonic forensic system derived from
Civil Law from an adversarial system typical of Common Law jurisdictions].
We cannot lose sight of the merits of either. The least we can do is to
not avoid redoubling efforts at revisiting the facts at intervals of
several months or years, permitting a full use of the executive's powers
of inquiry and analysis, freed from the pressures implied by having to
worry about consequent penalties, and corresponding powers of evaluation
by the judicial authority. Nothing in fact would be quite so disheartening
as the show of arbitrary power which replacing such evaluation by persons
familiar in depth with the situation would represent, by some new
evaluation, scarcely better founded in the facts or the law, done by
persons who, with honorable exceptions, know the details less well. "
FRENCH:
Or le Tribunal n’a pas les moyens de procéder à la refonte systématique des décisions de la Commission. Ses contraintes d’effectifs, de délais, de langue, de connaissances également, lui imposent une auto-limitation s’il veut rester crédible. En outre, une duplication entre l’autorité administrative et son juge n’a pas desens du point de vue de la rationalité institutionnelle.
Je crois finalement qu’il n’y a en la matière que deux modèles d’organisation cohérents et convaincants. Le modèle actuel de la Communauté en est un. Il suppose au niveau juridictionnel un contrôle de légalité, éventuellement complété, si le dossier le permet, par l’exercice des pouvoirs de réformation de la décision attaquée. L’autre modèle est celui dans lequel l’administration instruit le dossier et où la décision est prise par une instance juridictionnelle.
Il ne faut pas en négliger les mérites. Le moindre n’est pas d’éviter un redoublement du contrôle des faits à plusieurs mois ou plusieurs années d’intervalle et de permettre une pleine utilisation des moyens d’enquête et d’analyse de l’administration, libérée de la pression qu’induit la responsabilité de sanctionner, et des pouvoirs d’appréciation du juge. Rien n’est aussi navrant en effet que la démonstration d’arbitraire que peut représenter la substitution à l’évaluation opérée par des personnes connaissant une situation de manière approfondie d’une nouvelle évaluation, pas forcément meilleure en opportunité ni en droit, faite par des personnes qui, sauf exception, connaissent le dossier moins bien. So, the weight of the evidence so far is that it's just life. I see again the value of never assuming anything without checking carefully first and keeping an open mind. Here's a paper [PDF] on judicial review in Europe, if you are interested in digging deeper and can read French better than I can. The only thing that still strikes me as odd about this story is that the excuse given for the recent proposed "informal agreement" between the EU Commission and Microsoft to let Microsoft exile FOSS from its communications protocols until after the case is finally decided years from now was because the Commission wished to avoid delay. And now there is delay, due to the proposed change in judges. The upshot of all the delays proposed, no matter the motive, is that FOSS is left to struggle on an unfair playing field for years, while Microsoft goes its merry way. But to be fair, and precise, that "informal agreement" with Microsoft to keep Open Source developers out in the cold was not Bo Vesterdorf's proposal. It was European competition commissioner Neelie Kroes who made that "informal agreement" with Microsoft. Vesterbrook is the one who refused to delay the sanctions against Microsoft. Friday is the deadline for the parties to comment on the Kroes proposal. I hope everyone says they hate the idea, but it is beginning to look like FSF Europe is the only completely reliable party willing to hold the FOSS flag high. And just in case there are any sincere naifs who think Microsoft has learned its lesson and turned over a new leaf, I present today's Exhibit A, "Microsoft blocks right clicking on MSN for Mozilla browsers." Do read the comments thread on this page as well, for a workaround.
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Authored by: overshoot on Tuesday, June 28 2005 @ 11:27 PM EDT |
Links, clicks, you know the drill [ Reply to This | # ]
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Authored by: Tsu Dho Nimh on Tuesday, June 28 2005 @ 11:43 PM EDT |
I just got back from msn.com, and had NO problem right-clicking and doing the
usual things with it.
HOWEVER, I got a "connection refused" from Groklaw for my FireFox
browser. Is that significant? [ Reply to This | # ]
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Authored by: RedBarchetta on Wednesday, June 29 2005 @ 12:02 AM EDT |
Other than translation work, the case is now stalled and FSF
Europe president Georg Greve says any delay "works for
Microsoft."
I disagree with this statement.
In
regards to the Microsoft fine/appeal, not only has it left a bad taste in my
mouth, but it's actually made me angry in some ways.
Why in the world
can't Microsoft just pay the fine? It's equal to about 1% of their cash
reserves (maybe less as of today), and would go a long way towards gaining good
will. Their best marketing whizzes couldn't create PR capable of generating
that much good will. Every time I read an article such as this, it seems like
Microsoft sets an all time new high in avariciousness. By maintaining an
attitude of "if you don't play my way, I'm taking my football and going home,"
they are fortifying the general feeling that they're nothing but a parsimonious,
impenitent software company.
The King can only flog his subjects so
much before they revolt and lop off his head.
--- Collaborative
efforts synergise. [ Reply to This | # ]
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Authored by: darkonc on Wednesday, June 29 2005 @ 12:12 AM EDT |
Just so that PJ can find them (if any). --- Powerful, committed
communication. Touching the jewel within each person and bringing it to life.. [ Reply to This | # ]
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Authored by: nanook on Wednesday, June 29 2005 @ 12:26 AM EDT |
Just hold a ctrl button and left click, you'll get a new tab.
I believe that's a default in all gecko based browsers.
MSN can be so goofy at times.
Charlie
---
PJ has permission to use any of my ramblings in any way she chooses without any
restrictions whatsoever. But she's too intelligent for that. (-:[ Reply to This | # ]
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Authored by: inode_buddha on Wednesday, June 29 2005 @ 01:13 AM EDT |
Well, I have to wonder: How "enforcable" is an informal agreement in
the EU?
Disclaimer: My *very* limited legal knowledge is limited to daily (practical)
life in the USA. Any and all explanations are welcome. I wish I could personally
thank the EFF and FSF people in Europe, and the Groklaw people also.
---
-inode_buddha
Copyright info in bio
"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 29 2005 @ 06:09 AM EDT |
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Authored by: rsteinmetz70112 on Wednesday, June 29 2005 @ 10:20 AM EDT |
Something I have been wondering about.
Surely Legal has other cases, no judge could spend all of his time on just one
case, even given the size and importance of the Microsoft case. In the US, at
least, a Judge could possibly handle hundreds of cases at the same time.
If that is the true, what is happening to his other cases? Are any of them
being given the same treatment as the Microsoft case?
The articles I have read only mention the Microsoft case.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 29 2005 @ 11:15 AM EDT |
This reminds me of the US Antitrust case, where, after hearing all the evidence,
but before rendering a verdict, Judge Thomas Penfield Jackson talked about the
case and said some disparaging things about Bill Gates and Microsoft.
If I recall correctly, he called them "criminals". The appeals court
decided that this meant Judge Jackson was biased against Microsoft.
I guess breaking the law is not enough to be called a criminal.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 29 2005 @ 12:36 PM EDT |
Running Firefox .8, went to www.msn.com. Right clik seemed to work OK. Maybe
it's because I'm useing an early version?[ Reply to This | # ]
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Authored by: nickd on Wednesday, June 29 2005 @ 04:31 PM EDT |
PJ, you did a litle mistake here.
And note that a lot of people want you to
make even minor mistakes which they will over-emphasize. In this case "Excibit
A" is most likely not a valid one - at least it is certainly not good enough to
be presented as a final and rather "bold" note (somehing I learned from you is
that people tend to notice the most what you say at the begining and at the end
of your presentaion). The initial feedback to the article you refer to (MSN
blocking the right click) indicates that it was not an intentional
behaviour on behalf of MS.
So be careful with articles like that in the future.
This one had many "don't get me seriously" attributes we all must be aware of:
it was very-very current. It came from people that don't mind alot if
they are proven to be wrong. It had not been answered by the "accused"
party.
But most of all the author was using avasive language. On one side
he was writting like if MS had beyond doupt missbehaved (1st the bold title
"Microsoft blocks right clicking on MSN for Mozilla browsers" then
"I can’t see how Microsoft can claim this was accidental because there is no
valid reason..." and "They apparently do this using a JavaScript file
specifically targeted to the Mozilla browser. You can find it here..." and
the bold conclusion "they should expect to find themselves in front of
another judge for yet more anti-competitive charges") while at the same time
he was spreading around enough ifs ("If this is yet another
case..." and "In what appears to be...") to be ready to
fallback to a good enough excuse as he did in his update("I should note that
I did not state it WAS intentional [...] I simply implied it
might be").
PSSorry if I'm over-reacting or if I sound
like an old teacher or even impolite. My english are not good enough to help me
keep the right tone and my limited free time doesn't help either. [ Reply to This | # ]
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