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MS' Buddies Apply to Support MS in EU Trial But Are Dismissed
Friday, December 16 2005 @ 01:57 PM EST

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,, 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,, 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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