Day 2 Goes to Microsoft
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A panel of European judges has turned a skeptical eye toward the European Commission's ruling that Microsoft isn't playing fair.
In the second day of the software giant's appeal of the $613 million EC antitrust ruling, a European Union panel asked whether bundling of a media player actually harmed competition, as regulators charge.
Today's questioning follows the testimony traded between Microsoft and its rivals Monday on the state of competition for media software and whether an EC-mandated version of Windows XP sans Windows Media Player fell on deaf ears.
Judge John Cooke and Bo Vesterdorf, the president of the European Court of First Instance, the EC's second-highest legal body, sit on the panel.
Vesterdorf told the courtroom he, like other consumers, has downloaded software without a problem, according to Lars Liebeler, antitrust lawyer for industry group CompTIA.
Liebeler, who testified Monday, said today's questions "were mostly skeptical" and "cast serious doubt" on the commission's argument that bundling Windows Media Player with the OS prevents consumers from using a third-party media player.
A key focus of the appeal is whether Windows Media Player is an integral part of the OS. Microsoft testified yesterday that its media player is so integral that OEMs refused to install an EC-required mandated version of XP that removed the media player.
The EC and Microsoft rivals believe the media player is a separate application that can be removed and replaced without harm.
Cooke said it was likely impossible to buy a car without also getting a cigarette lighter included. Monday, Microsoft used a similar analogy.
"The fact that laces are sold separately from shoes does not demonstrate that shoe manufacturers are engaged in a tying practice by selling shoes with only laces," said Jean-Francois Belling, Microsoft's lawyer, said Monday.
Microsoft's belief that its media player is a feature improving the Windows experience is false, according to the European Committee for Interoperable Systems (ECIS), a group that includes rivals Adobe, Oracle and Sun.
Under questioning, Microsoft admitted Windows Media Player is offered as a stand-alone product, according to an ECIS statement.
The ECIS, which supports the EC's antitrust ruling, said Microsoft's contention of strong competition and availability of third-party media players was of "dubious quality" and supported by statistics available only to the software maker.
"No company is above the law," EC spokesperson Linda Cain told internetnews.com. If you want to do business, said Cain, "you have to respect European law and in particular European antitrust law."
The EC is still considering whether to fine Microsoft for failing to comply with demands the software company license technical information to rivals, according to the spokesperson.
In March, Microsoft explained to the EC why regulators should not impose daily fines for noncompliance with the European demand.
The commission is also monitoring whether Microsoft continues to sell Windows XP N, a version of the operating system that omits Windows Media Player.
Only 1,787 copies of XP N were sold in Europe, compared to the more than 35 million full versions of the OS that were sold in Europe during the same time period, according to Microsoft.
"For as long as they do not comply in full, the commission will not let the matter drop," according to Cain. The EC, not Microsoft, will decide when the software firm is in compliance, Cain said.
So far, no surprises have sprung from the appeal, says Laura DiDio, a Yankee Group analyst. The court will be more favorably disposed to the EC, DiDio believes.
While the process is scheduled to last through Friday, the court told participants the hearing may extend to Saturday, according to Liebeler.