[FSFE PR][EN] Record fine against Microsoft upheld by European Court of Justice

press at fsfeurope.org press at fsfeurope.org
Wed Jun 27 13:40:31 CEST 2012

= Record fine against Microsoft upheld by European Court of Justice =

[Read online: http://fsfe.org/news/2012/news-20120627-01.en.html ]

The European Court of Justice has ordered Microsoft to finally pay a
record fine for using its near-monopoly on the desktop to keep rivals
out of the workgroup server market. Four years ago, the European
Commission slapped the software giant with a fine of 899 million Euros
for its anticompetitive behaviour. In today's ruling, the ECJ ruled that
this unprecedented fine was largely justified.

For a decade, the Free Software Foundation Europe has participated in
the case[1], also on behalf of the Samba team, which provides a Free
Software workgroup server competing with Microsoft's proprietary

1. http://fsfe.org/projects/ms-vs-eu/ms-vs-eu.en.html

"Microsoft remains a convicted monopolist, and was reduced to
negotiating the terms of its punishment," says Karsten Gerloff,
President of the Free Software Foundation Europe. "The court has reduced
the fine by less than five percent. The European Commission was right in
being tough on Microsoft. We have worked hard to support the Commission
in this case, and are extremely proud of the victory we've achieved. We
are grateful to the Samba team and all the others who invested so much
effort along with us, and hope that the Commission will continue to push
for an open, competitive IT market."

The case shows that Microsoft has used patents as an excuse not to
reveal their mundane changes to public protocols. The court recognised
that the company was wrong to refuse to give access to the
interoperability information unless a party took a license for patents
too. This is an example of how software patents are a real and present
damage to competition even if used out of court.

"We have successfully asserted the rights of Free Software developers
like the Samba Team to access interoperability information, but
Microsoft refused our legitimate demands until the very end," says Carlo
Piana, General Counsel for the Free Software Foundation Europe. "Today's
decision establishes that we were right once again. Receiving the
interoperability information was our right, not a concession by

The threat to competition has not gone away. Microsoft still attempts to
bring ever larger parts of the technology market under its control, and
other companies such as Apple are following its lead. The company still
uses patents to put rivals under pressure and profit from their work[2].
It also uses new approaches to restrict device owners from installing
software of their choice[3]on their hardware. To counter these threats
Free Software Foundation Europe will continue to work for a free
information society, and for the interests of Free Software users and
developers everywhere.

2. https://fsfe.org/projects/swpat/letter-20101222.en.html

== Background ==

After the 2004 Decision of the European Commission was upheld by the
General Court of the European Court of Justice, in 2007 Microsoft
finally complied fully with the provision to release timely and accurate
interoperability informations with competitors under so-called
"Reasonable And Non Discriminatory (RAND)" conditions.

After Microsoft did not fulfill the Commission's requirements, the
Commission finally set the fine for noncompliance to EUR 899 million,
assessing that up and until October 2007 Microsoft fell short of its
obligations to offer RAND conditions.

Microsoft contested this assessment and appealed to the European Court
of Justice. The company claimed that because the information contained
in the release was covered by patents and thus innovative, it was
entitled to charge rivals substantial amount of money for access to this
information. Not having received sufficient guidance, it was within its
rights to set a high price for interoperability information, and in good
faith charge running royalties even for the "trade secret" part, which
unbundled from the license for patents upon express request from the

FSFE and the Samba Team (which is a licensee of the interoperability
information, or "WSPP", through the Protocol Freedom Information
Foundation) intervened in the case to deny that the information was
"innovative". The only value attached to the information was to allow a
drop-in replacements of network services to be created through the
discovery of trivial details of the protocols, whereas the general
concepts, structure and engineering decisions were both well understood
and not ground-breaking if taken individually, nor was innovative the
idea of combining them novel or innovative. The Court upheld the finding
of the Commission, finding that: "Microsoft in practice continued to
refuse Free Software developers all access to the interoperability
information, which was not something that the letter recognised it could
legitimately do."

=== Contact ===

Karsten Gerloff
gerloff at fsfeurope.org
+49 176 9690 4298

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4. http://fsfe.org/press

== About the Free Software Foundation Europe ==

  The Free Software Foundation Europe (FSFE) is a non-profit
  non-governmental organisation active in many European countries and
  involved in many global activities. Access to software determines
  participation in a digital society. To secure equal participation in
  the information age, as well as freedom of competition, the Free
  Software Foundation Europe (FSFE) pursues and is dedicated to the
  furthering of Free Software, defined by the freedoms to use, study,
  modify and copy. Founded in 2001, creating awareness for these issues,
  securing Free Software politically and legally, and giving people
  Freedom by supporting development of Free Software are central issues
  of the FSFE.


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