Two things happened this week, neither are certain wins, but both inspire the hope that somehow the good guys will eventually win the day.
The first one is that the EU has upheld the sanctions imposed upon Microsoft in it’s most recent anti-competitive litigation. Basically Microsoft were hoping to get a stay on the sanctions until they had completed their appeal. By the time they had dragged the appeal out to 5 years or so, the sanctions would be dust in the wind and not relevant at all. This we know because that is basically what happened when Microsoft was found guilty of anti-competitive behaviour by the US DOJ. Part of that case was about Microsoft putting Netscape out of business by including IE in Windows, but by the time it had its day in court, Netscape was already gone and the damage was done and Microsoft had already won.

A 500 million+ fine means nothing to a company with the cash reserves of Microsoft, so issuing such a fine is pointless unless the amount is determined by a percentage of the actual ready cash of the defendant. Only the other sanctions really count, such as forcing MS to remove Media player from one version of Windows, and also to stop them making hidden API’s (Application Programming Interfaces) in their server software in order to make it hard for competitors to be compatible with them. Anyway, back to the story at hand, the EU has said that the sanctions stand and will not be stayed pending the appeal. Microsoft are not happy about it, and the fact that they suddenly wanted to go back to the discussion table with the EU before this ruling came out indicates they had a pretty good idea it was coming. Don’t count them out though, they have proven time and again that they are very good at working around bad rulings and coming out the other side smelling like roses. The fact that a twice convicted monopolist company can do this makes you wonder about the state of our laws in this regard.

In another win for the good guys, (and another result Microsoft would be most unhappy about I imagine) is that the software patent provision that big companies and some members of the EU tried to push though without discussion has been stopped in it’s tracks and will now be put under the spotlight of the world before it is voted on. The hero this day was none other then Poland, who requested that it be stricken from the agenda of the EU fisheries meeting where it was to be slipped under the table without discussion. Big software companies like Microsoft would like nothing better then to have the same software patent mess that the US has in place to be replicated in Europe whereby they can patent a software “idea” and then use that patent as a defence against other companies litigating against them, or as a way of holding down the competition, or by putting FUD (Fear Uncertainty and Doubt) into peoples’ minds about the competition’s product. This is what is happening now in Linux where Microsoft has told people that Linux is likely to attract Patent litigation and you’re better of running Windows as a result. The problem is not limited to Linux though, it is widespread throughout the entire software industry. Consider this, if you can patent an online to-do list, then you can patent nearly anything, and if you own the patent, you can stop others from doing nearly anything. Patents are for real world inventions, Copyright is the protection mechanism for software, unfortunately copyright doesn’t allow you to mess with the competition as a copyright is about the code, not the result of the code running, and so the big guns want patents added as well.
Software patents will come back to the table in the EU sometime in the next year, but this time it will be out in the open and up for discussion. The directive no longer has a majority in the EU, so getting it pushed though will be much harder next time. I found myself wondering how many bribes it took to get the majority in the first place because lately Europe has shown no desire to follow the US on anything lately, quite the opposite in fact.

So, in summary, a Christmas present to the world. The EU won’t be adopting software patents without discussing it first, and Microsoft is being held to task for its anti-competitive history. Even if the sanctions don’t hold a huge amount of weight, they have at least shown Microsoft that it can’t treat the world like chumps and come off unscathed.

Merry Christmas everyone.

This article was posted on Thursday, December 23rd, 2004 at 3:39 am