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| MS' Buddies Apply to Support MS in EU Trial But Are Dismissed |
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Friday, December 16 2005 @ 01:57 PM EST
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On November 28, B. Vesterdorf, President of the Grand Chamber of the Court of First Instance, issued an order in the Microsoft antitrust case, Microsoft v. Commission. You may have seen the Reuters story, "Court rejects 'mere think tanks' in Microsoft case". The organizations, Microsoft allies all, had sought to intervene in Microsoft's application for annulment of (or in the alternative, annulment or reduction of the fine), the EU Commission decision against it. Unfortunately, I can't share with you the court's ruling, because EU copyright law isn't as flexible as US law, but I can tell you what I learned. Here's how I understand it. You know how every time there is some Microsoft FUD against Linux from an "independent" think tank, we do a little digging and it turns out they have ties to Microsoft 9 times out of 10? Well, four groups that sound a lot like that tried to intervene in the EU's antitrust trial on Microsoft's behalf, and on November 28, the court dismissed their applications and ordered them to pays everyone's costs involved in dealing with their applications, at least the ones that had applied for costs. Read on for the details.
Here are the groups: The International Association of Microsoft Certified Partners, Inc. ('IAMCP'), established in Markham, Ontario (Canada), sought leave to intervene in the proceedings in support of Microsoft. Also the International Intellectual Property Institute ('IIPI'), established in Washington, DC (United States), the Institute for Policy Innovation ('IPI'), established in Lewisville, Texas (United States) and the Progress & Freedom Foundation ('PFF'), established in Washington, DC, did too.
Some opposing observations on the applications were submitted by the Free Software Foundation Europe, the Commission of the European Communities, the Software & Information Industry Association, the latter two stating that the applications should be dismissed and that they should be ordered to pay costs. FSF argued against the organizations being entitled to intervene, but didn't seek dismissal or costs. The Free Software Foundation Europe and the Software & Information Industry Association are two of the five entities listed in support of the Commission in this case. RealNetworks is still listed as one of the five, but I'm not clear why, since they settled their dispute with Microsoft recently. Perhaps it's a matter of paperwork not being completed yet to extricate themselves.
Support observations were also submitted by Microsoft and companies already listed as interveners on Microsoft's side, DMDsecure.com, MPS Broadband AB, Quantel, Pace Micro Technology, and Tandberg Television.
The court findings:
Any person, by EU law, that has an interest in the outcome of a case can intervene. Case law refines that, the court explained, to mean that if an organization has as its object to protect their members "in cases raising questions of principle that are liable to affect those members" or if it represents "an appreciable number of undertakings in the sector concerned, and if its interests may therefore be affected to an appreciable extent," it can intervene.
In the case of IAMCP, its Bylaws don't match the first requirement, of protecting its members interest. Instead, the court ruled, its stated goals are to promote "an exchange of information and discussion, to help its members cooperate with Microsoft", and to organize conferences. Further, IAMCP didn't participate in the case earlier, and so its application to intervene was dismissed.
As for IIPI, IPI and PFF, self-described as "think tanks" with a mission to promote strong IP rights in technology worldwide, the court said that while they claimed to have a direct and present interest in the case -- on the grounds that the case supposedly represents "a new test for compulsory licensing of copyright" (they mean the interoperability information Microsoft is ordered to provide), which is, in their opinion, violative of the Berne Convention and WIPO's Agreement on Trade-Related Aspects of Intellectual Property Rights -- in reality they had no direct interest in the case and thus their applications were dismissed.
No matter what the court ultimately decides, the court found, it couldn't see how it affects these corporations, whose interests are purely academic, and which will "be fully able to continue to promote their theory that the existence of strong intellectual property rights in the information technology field promotes innovation and economic development."
At most, the court succinctly notes, they have an interest "by reference to certain theories or arguments put forward by Microsoft." The Commission had submitted an observation in which it said that the three are not "representative associations" but corporations, with no members at all, "that pursue their own individual interests."
IAMCP, IIPI, IPI, and PFF, having been unsuccessful in their applications to intervene, were ordered to bear their own costs and those incurred by the Commission and the intervener Software & Information Industry Association. FSF didn't ask for costs, so they don't get any. Some entities that support Microsoft in the case and submitted observations, DMDsecure.com, MPS Broadband AB, Quantel, Pace Micro Technology, and Tandberg Television, also have to pay their own costs.
I thought that aside from being an interesting story, it would be worth pointing out that Microsoft is fighting tooth and nail to prevent having to share its interoperability information in the EU case, on the grounds that it is a forced licensing of its copyrighted work and hence violative of WIPO and Berne. Simultaneously, in the US, it is telling Massachusetts that its copyrighted (and patented, they hope) information in their proprietary version of XML will be utterly and totally freely shared with the world, if they succeed, as a standard. Now, I know that a copyright holder or patent owner can share whatever it wishes, and I'm surely glad if Microsoft is opening up more than it used to, or at least says it will. For one thing, it will save Microsoft and the world a great deal of money in litigation. It's the way to silence Groklaw too, now that I think of it, if they have such a goal. If there are no stupid IP lawsuits, we'd have less to cover. All I'm pointing out is that the ODF story is one of market forces compelling Microsoft to do what it otherwise demonstrated it would rather die than do. Maybe now it would be more accurate to say that Microsoft would rather do it than die. That is the ODF story, and it's an historic moment in software industry history, and it's a fine thing to be alive and here, watching it unfold before our very eyes. I'd personally like to thank everyone who worked on OpenDocument Format and those who wrote Free and Open Source applications that support ODF for making all of this possible. I'll also say thank you to those whose proprietary software applications support ODF, because ODF is rocking Microsoft's world.
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| Authored by: Chris Lingard on Friday, December 16 2005 @ 02:03 PM EST |
Try to post in HTML, and put in those links.
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| Authored by: Chris Lingard on Friday, December 16 2005 @ 02:05 PM EST |
Just in case.
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| Authored by: Anonymous on Friday, December 16 2005 @ 02:10 PM EST |
| [...]information in their proprietary version of XML will be utterly and
totally freely shared with the world, if they succeed, as a
standard[...]
But is it possible to hack Microsoft's Office Suite
and have it save to ODF by default or have it save to ODF documents? I'm curious
because if one installed Adobe's Proffessional suite, an icon would be placed in
the tool bar allowing people to save Microsoft's .doc documents to
PDF.
I know Microsoft would counter this move by modifying the license under
which Microsoft Office is provided, effectively disallowing such modifications.
That's the problem. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 02:11 PM EST |
Isn't FSF is a similar 'think tank', just on the other side?
If not, and surely this is the case, then what is the difference besides being
on the other side?
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| Authored by: Anonymous on Friday, December 16 2005 @ 02:11 PM EST |
PJ, thank you for all your work that you have put into Groklaw. May the Holiday
Season bring you happiness.
May the new year bring you joy.
Merry Christmas everyone.
Bill[ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 02:37 PM EST |
http://curia.eu.int/jurisp/cgi-bin/form.pl?
lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&
amp;do
cor=docor&docjo=docjo&numaff=T-201/
04&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100
HTH and merry christmas.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 02:39 PM EST |
Unfortunately, I can't share with you the court's
ruling,
because EU copyright law isn't as flexible as US
law.
Wow! That sounds pretty unreasonable. Are EU
court papers
actually copyrighted, without permission for free
dissemination?
That really sounds pretty much a dark-ages kind of thing,
to me. [ Reply to This | # ]
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- Can't share? - Authored by: Anonymous on Friday, December 16 2005 @ 03:03 PM EST
- Can't share? - Authored by: Nonad on Friday, December 16 2005 @ 10:49 PM EST
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| Authored by: rcbixler on Friday, December 16 2005 @ 03:25 PM EST |
I notice a similarity in these rulings with the ruling in
the Wallace case, which is that merely having an academic
interest in a case isn't sufficient. To establish
standing, the party must be able to prove economic damage
to themselves. Am I right and this is a requirement for
standing in an anti-trust case?
[ Reply to This | # ]
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| Authored by: Chris Lingard on Friday, December 16 2005 @ 03:43 PM EST |
Go to search
engine
Put in T-201/04 into the "case number and hit "Submit". Read the
latest T-201/04_5
ORDER OF THE PRESIDENT OF THE GRAND
CHAMBER OF THE COURT OF FIRST INSTANCE
Findings of the Court
44
It has consistently been held that the concept of an interest in the result
of the case, within the meaning of the second paragraph of Article 40 of the
Statute of the Court of Justice, must be defined in the light of the precise
subject-matter of the dispute and be understood as meaning a direct, existing
interest in the ruling on the forms of order sought and not as an interest in
relation to the pleas in law or arguments put forward. The expression ‘solution’
is to be understood as meaning the final judgment which the parties ask the
Court to deliver. It is necessary, in particular, to ascertain whether the
intervener is directly affected by the contested decision and whether his
interest in the result of the case is established (order of the Court of Justice
in Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and
Commission [1978] ECR 893, paragraphs 7 and 9; order in National Power and
PowerGen, cited above, paragraphs 51 to 53; and order of the Court of First
Instance of 25 February 2003 in Case T-15/02 BASF v Commission [2003] ECR
II-213, paragraph 26).
45 It is quite clear that IIPI, IPI and
PFF have not shown an interest in the result of the case within the meaning of
the case-law cited above.
46 In that regard, it should be pointed
out that the three corporations are not active in any of the markets concerned
by the contested decision, nor do they carry out commercial activities on a
market upstream or downstream from one of those markets. As they define
themselves, they are in reality mere ‘think tanks’ whose objects include, in
particular, the promotion of strong intellectual property rights in the
information technology field. To that end, they publish articles, works and
information bulletins, carry out research and organise meetings, training
seminars and conferences.
47 It is difficult to understand in
what way the solution which the Court will arrive at in the case is capable of
affecting, in any way whatsoever, the legal position of IIPI, IPI and PFF and,
in particular, the proper conduct of their mission or their activities, as
described above. Whether the Court upholds the substance of the contested
decision or whether it annuls it in whole or in part, those three corporations
will be fully able to continue to promote their theory that the existence of
strong intellectual property rights in the information technology field promotes
innovation and economic development.
48 The interest which IIPI,
IPI and PFF claim is in fact merely an indirect, and purely abstract and
academic, interest. At most, it might be considered that they have an interest
by reference to certain theories or certain arguments put forward by Microsoft.
Such an interest, however, cannot constitute a sufficient interest in the result
of the case for the purposes of the application of the second paragraph of
Article 40 of the Statute of the Court of Justice.
49 In the light
of the foregoing considerations, the application to intervene by IIPI, IPI and
PFF must be dismissed.
Costs
50 Under Article 87(1)
of the Rules of Procedure, a decision as to costs is to be given in the final
judgment or in the order which closes the proceedings. As the present order
closes the proceedings so far as the present applicants to intervene are
concerned, it is appropriate to make an order as to the costs associated with
their application to intervene.
51 Under Article 87(2) of the
Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if
they have been applied for in the successful party’s pleadings.
52
As IAMCP has been unsuccessful in its application, it must be ordered to bear
its own costs and to pay the costs incurred by the Commission and the intervener
Software & Information Industry Association in connection with its
application to intervene, in accordance with the forms of order sought by those
parties. As the applicant and the intervener Free Software Foundation Europe eV
have not applied for costs, they must bear their own costs.
53
As IIPI, IPI and PFF have been unsuccessful in their application, they must be
ordered to bear their own costs and to pay the costs incurred by the Commission
and the intervener Software & Information Industry Association in connection
with their application to intervene, in accordance with the forms of order
sought by those parties. As DMDsecure.com BV, MPS Broadband AB, Pace Micro
Technology plc, Quantel Ltd and Tandberg Television Ltd have not asked for
costs, they must bear their own costs.
On those
grounds,
THE COURT OF FIRST INSTANCE
hereby
orders:
1. The application to intervene by The International
Association of Microsoft Certified Partners, Inc. is dismissed.
2.
The International Association of Microsoft Certified Partners, Inc. shall bear
its own costs and also pay the costs incurred by the Commission and by Software
& Information Industry Association in connection with its application to
intervene.
3. The applicant and Free Software Foundation Europe
eV shall bear the costs which they have incurred in connection with the
application to intervene by The International Association of Microsoft Certified
Partners, Inc.
4. The application to intervene by International
Intellectual Property Institute, Institute for Policy Innovation and Progress
& Freedom Foundation is dismissed.
5. International
Intellectual Property Institute, Institute for Policy Innovation and Progress
& Freedom Foundation shall bear their own costs and pay the costs incurred
by the Commission and by Software & Information Industry Association in
connection with their application to intervene.
6. DMDsecure.com
BV, MPS Broadband AB, Pace Micro Technology plc, Quantel Ltd, and Tandberg
Television Ltd shall bear the costs which they have incurred in connection with
the application to intervene by International Intellectual Property Institute,
Institute for Policy Innovation and Progress & Freedom
Foundation.
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| Authored by: gumnos on Friday, December 16 2005 @ 03:52 PM EST |
Hey...I live in Lewisville, TX. Weird seeing my neighborhood in such a bad
light :)
Maybe I should pay them a visit?
-gumnos
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| Authored by: Anonymous on Friday, December 16 2005 @ 04:51 PM EST |
I personally think we should be pushing ODF at home, work
and anywhere we go to do computing.
I use odf all the time now and it rocks.
It is the one and only open choice and I hope the Senators
see that and see through Yates and Microsoft. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 06:07 PM EST |
PJ,
I am sorry, but I believe I need to disagree with you. Now it may be that
Microsoft is embracing "OPEN STANDARDS" in this one instance by
"opening" the specification for their office documents.
Tin Hat Time:
It is my personal suspicion that Microsoft is once again attempting to slow
the propagation of competing technology. In this case ODF standards.
If you are a customer who needs to do business with MA, you might be
considering installing a software package that will meet those standards. But
wait, Microsoft will get their document standard accepted, so you don't have to
do anything, and can continue using MS software no sweat. And oh yes, they
promise Office 12 will have open specs too. So don't worry, go ahead and
upgrade to our latest and greatest wiz bang. Don't worry. No one ever got
fired for buying Microsoft.
If Microsoft were really interested in doing or dieing, they would simply
provide a mechanism for MS Word software to provide ODF compatability. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 06:13 PM EST |
| FYI: Another article about this from last night: IPI to the rescue of Microsoft... NOT! [ Reply to This | # ]
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| Authored by: Anonymous on Friday, December 16 2005 @ 09:07 PM EST |
I was cleaning up my desk at work this week, and came across a Gartner Group
report dated 01 March 1999. The title is "Microsoft Continues Its Embrace and
Extend: Now XML."
Since they charge for their reports, I can't quote it
extensively here. (Though if you want to pay Gartner $95.00 for a
six-year-old report, it's still available through their web site as an "archived
document.") But here's a brief snippet:
Microsoft...will
encourage development of third-party applications utilizing its formats,
allowing some "in between" functionality. However, if any vendor produces an
application that gets even close to rendering Office unnecessary, Microsoft will
do whatever is necessary to thwart those efforts.
This sounds
awfully familiar in light of the current ODF fracas...[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, December 17 2005 @ 05:15 AM EST |
"Unfortunately, I can't share with you the court's ruling, because EU
copyright law isn't as flexible as US law,"
If you live in America, or Country X, then you abide by your host country's
laws. That is if America didn't have copyright law then you are free to copy
whatever you like.
Thus EU's 'copyright law' not being 'flexible' should have no baring on you
quoting from it or doing what you want to do that is allowed under American law.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, December 18 2005 @ 08:40 AM EST |
Yes, it's doing the rounds on e-mail, but forgive the seder ine pedadilo.)
++++
*Have Yourself a Microsoft Christmas*
'Twas the night before Christmas, when all through the house not a creature was
stirring, except Papa's mouse. The computer was humming, the icons were hopping,
as Papa did last-minute Internet shopping. The stockings were hung by the modem
with care in hopes that St. Nicholas would bring new software.
The children were nestled all snug in their beds, while visions of computer
games danced in their heads. PageMaker for Billy, and Quicken for Dan, and
Carmen Sandiego for Pamela Ann. The letters to Santa had been sent out by Mom,
to santaclaus@toyshop.northpole.com - Which has now been re-routed to Washington
State because Santa's workshop has been bought by Bill Gates.
All the elves and reindeer have had to skedaddle to flashy new quarters in
suburban Seattle. After centuries of a life that was simple and spare, St.
Nicholas is suddenly a new billionaire, with a shiny red Porsche in the place of
his sleigh, and a house on Lake Washington that's just down the way from where
Bill has his mansion. The old fellow preens in black Gucci boots and red Calvin
jeans. The elves have stock options and desks with a view, here they write
computer code for Johnny and Sue.
No more dolls or tin soldiers or little toy drums will be under the tree, only
compact disk ROMS with the Microsoft label. So spin up your drive, from now on
Christmas runs only on Win95. More rapid than eagles the competitors came, Bill
whistled, and shouted, and called them by name. "Now, ADOBE! now, CLARIS!
now, INTUIT! too, now, APPLE! and NETSCAPE! you're all of you through, it is
Microsoft's SANTA that the kids can't resist, it's the ultimate software with a
traditional twist - recommended by no less than the jolly old elf, and on the
package, a picture of Santa himself.
Get 'em young, keep 'em long, is Microsoft's scheme, and a merger with Santa is
a marketer's dream. To the top of the NASDAQ! to the top of the Dow! Now dash
away! dash away! dash away - wow!" And Mama in her 'kerchief and I in my
cap, had just settled down for a long winter's nap, when out on the lawn there
arose such a clatter, the whir and the hum of our satellite platter, as it
turned toward that new Christmas star in the sky, the SANTALITE owned by the
Microsoft guy.
As I sprang from my bed and was turning around, my computer turned on with a
Jingle-Bells sound. And there on the screen was a smiling Bill Gates next to
jolly old Santa, two arm-in-arm mates. And I heard them exclaim in voices so
bright,
"A MICROSOFT CHRISTMAS, and TO ALL A GOOD NIGHT!"
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