Comment Articles

Microsoft and the devil's advocate

Published: 31 Mar 2004 15:29 BST

I spoke to one of the lawyers representing Microsoft in its fight with the European Commission on conditions of strict anonymity. He said: 'If you use my name, I'd have to jump out the window.' He then used this anonymity to pour scorn upon the European Union's recent ruling against Microsoft, which found the company guilty of abusing its monopoly powers in the market for media player and server software, and levied the largest ever fine in a European competition case. He was about as far away as you could get from an uninterested party, but it was instructive to watch him play devil's advocate for Microsoft.

The playwright David Mamet has observed that you can skip the first year of law school if you figure out that the important thing is not the rights or wrongs of the argument -- but what you choose to argue about. Our lawyer may not have taken Mamet's advice, but he was very keen to argue about the media player.

Microsoft has some good arguments on the media player issue. Downloading a small application like Microsoft's Media Player, Real's Network player, or Apple's QuickTime takes the blink of an eye with a decent broadband connection, which undercuts the impact of its bundle with Windows. The company also bent over backwards in its proposed settlement by offering to make it even easier for its competitors.

"The ridiculous thing is that Microsoft offered to install at least three extra media players, two selected by the Commission, the third chosen by the OEM, plus even more on a CD and a DVD with the system -- but Monti turned it down," said Microsoft's lawyer.

However, another UK lawyer who is not working for Microsoft points out the EU still has the right to bust Microsoft if the bundling has the overall effect of unfair competitive advantage - even if that advantage might seem relatively slight. George Peretz, a competition lawyer with Monkton Chambers, argued that if Microsoft floods the market with PCs featuring its media player it may a momentum which Real, Apple, or other rivals may struggle to overcome.

"It's a question of fact. The fact is that the media player comes free. You would have to show it made no difference at all, and I don't think that's right," Peretz.

However, the proposed remedy actually looks a bit silly. The European Commission ruled that Microsoft must provide a version of Windows without Media Player -- at the same price as the one with it. Let's assume for argument's sake that the ruling is based on the laudable goal of preventing Microsoft from the creeping extension of its Windows monopoly. We don't want Redmond to dominate our CD player, DVD player, and photo album in the way it does our PC. Will the remedy work?

It seems very unlikely.