It is not every day that you get to see a European Court grand jury of thirteen judges. Given the importance of this case, such a high level of legal authority does indeed seem necessary: This may be the last test for whether antitrust is a workable tool for information technology industry.
Day two continued where day one had ended: The tie-in of Windows Media Player into Microsoft Windows. Although this is not the part of the case that the Free Software Foundation Europe and Samba Team are mainly interested in, it was a very interesting morning.
Making false statements while maintaining a straight face seems to be a necessary skill for Microsoft representatives. Not only do they keep claiming that removing the Windows Media Player would cripple Microsoft Windows so badly that the operating system would become dysfunctional, they also claimed the same was true for Apple and its Quicktime player. But my personal favorite was the claim that the BSD operating systems do not work on PCs, a blatant lie told in response to a direct question from one of the judges.
In the afternoon, Microsoft then declared that its stripped version of Windows XP without Media Player was not adopted by any OEM, a fact that surprises the unwary listener in so far as Microsoft said it could not offer such a version. But it does not surprise in so far as Microsoft charges the same price for the stripped down version that it charges for the version including the Media Player. It also claimed that all operating systems used for PCs today come with media functionality — repeating the blatant lie that the BSD Systems do not run on normal PCs.
The day was also another lesson in the always popular game of “how to say nothing with Powerpoint slides while making it seem very important.” Six rectangles, three of them surrounded by a box labelled “Windows Operating Systems” — voila, you have proven that Windows Media Player cannot be removed. A timeline with a couple of product names by their release dates and screenshots of graphical user interfaces for media playing — voila, you have proven that the media player is integrated into the system.
Naturally, RealNetworks was much discussed throughout the day, but since they accepted Microsofts money to withdraw from the case, they were unable to support the evidence they originally brought in. In fact: RealNetworks now sub-licenses the Microsoft Windows Media Format and therefore the incentive for any media supplier to actually encode in Real Media Format is greatly reduced. While my sympathy for a proprietary vendor and format is certainly limited, this does seem like RealNetworks has really given up on competing with Microsoft and are happily transforming themselves into a dependent sub-entity which can be used as fig-leaf by Microsoft to make a claims in court about being competitors.
Another fairly long discussion was about the US remedies, despite them having proven to be entirely ineffective. Apparently these remedies essentially boiled down to leaving the Media Player installed and only removing the startup icon — so the player will automatically come up whenever a user clicks on a WMF stream. This is what people referred to as a “deactivated” version of the player, which could be “reactivated” by the user. Fortunately Microsoft explained to everyone present that this was not a problem, because the code is only started to play WMF streams and does not keep running afterwards. Isn’t that exactly what it means to have a program installed?
According to Microsoft we do not need to worry, however, because as they said: “Windows Media Format is an open standard.” Indeed, Microsoft seems to apply its own definition of “open standard”, which essentially appears to boil down to “as long as it comes with a 25 page licensing agreement that gives us total control over what people and competitors do with this, it is an open standard.”
But at least Microsofts experts had many nice numbers to base their statements on. Who really cares that none of these numbers had independent third-party confirmation or were somehow verifiable? Fortunately the interveners on the Commission side did a very good job at showing the gaps and manipulations done by Microsoft and its supporting parties.
The Court is now adjourned for the day, tomorrow it will continue with the interoperability case, which should be even more interesting.
