[Scottish] [Fwd] Backgrounder for Court of First Instance decision Monday

[Dan Shearer]

For those that care about such things, an important case is happening
soon that will be looking at how much access Microsoft is giving to
people wanting to interoperate with them (as little as possible) and
whether software patents are making this better or worse, and more. All
the fun of the fair.

D

----- Forwarded message ------

A major event this month is the scheduled Monday, September 17 release, at
*9:30 a.m.,* of the Court of First Instance's decision in Microsoft's appeal
of the DG Competition 2004 order.  See the Court's announcement here,
<http://www.microsoft.com/presspass/download/legal/europeancommission/07-17-07EUNotice.pdf<http://www.microsoft.com/presspass/download/legal/europeancommission/07-17-07EUNotice.pdf>>
(PDF). > It contains details for the press.

That decision should appear roughly simultaneously on the court's docket at
<http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=T-201/04&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100
>.

A second page where the notice and a link to the decision are likely to
appear early is the Court's "future decisions" page, which tracks final
decisions in cases as they are released for a few days on a first-in,
first-out basis. <http://curia.europa.eu/en/actu/communiques/index.htm>.

The court is located in Brussels, so remember time zone differences, if
relevant.  Brussels will still be on Central Europe Summer Time, GMT/UTC +
2.  See <http://www.timeanddate.com/worldclock/city.html?n=48 >.

The Court's judgment is in the hands of a 13-judge panel presided over by
Court of First Instance President Bo Vesterdorf, a Danish lawyer. See
<http://en.wikipedia.org/wiki/Bo_Vesterdorf>,
Vesterdorf has previously announced that he plans to retire the same day the
decision is released.

The case was first assigned to a smaller panel headed by Judge Hubert Legal.
However, the case was reassigned after an article written by Judge Legal was
publicized that referred to unnamed other judges' law clerks as "ayatollahs
of free enterprise," suggesting that they might have been influencing some
judges. See Groklaw, " *EU MS: Judge Hubert Legal Is Kicked Off the Case," *
< http://www.groklaw.net/articlebasic.php?story=20050708235116466>.

The public filings in the Court of First Instance are linked from the
Court's page with the very long URL linked above. The New York Times, by way
of FreePress, has released an article anticipating the decision's release. <
http://www.freepress.net/news/25551>, as have other publications. The Times
cites unnamed sources for a prediction that the decision will be a
cut-the-baby-in-half decision. Personally, as a retired trial lawyer, I'd
much prefer betting on horses than betting on judges; horses are far more
predictable.

A concise 2-page summary of Microsoft's grounds for appeal was published in
the Official Journal of the European Union in May, 2004. <
http://europa.eu.int/eur-lex/pri/en/oj/dat/2004/c_179/c_17920040710en00180019.pdf>.
Please note that proceedings in the Court of First Instance are far less
transparent than judicial proceedings in the U.S and  there is little
information about which issues will actually be decided other than the
Court's decision denying Microsoft request for the DG Competition order to
be stayed pending appeal.  That decision is linked from <
http://www.groklaw.net/article.php?story=20041222180405607>.


OTHER BACKGROUND INFORMATION

DG Competition home page for the Microsoft case, <
http://ec.europa.eu/comm/competition/antitrust/cases/microsoft/>.

Microsoft PressPass home page for the case:
<http://www.microsoft.com/presspass/presskits/eucase/default.mspx
>.


NOTE

The Court's decision on Monday *may* heavily influence DG Competition's
ongoing investigation of Microsoft for alleged antitrust violations
involving, inter alia, refusal to disclose its binary Office file formats
and its undermining of the OpenDocument international standard with
Microsoft Office Open XML. The organization that filed the relevant
complaint based much of it on principles established in the 2004 DG
Competition decision and is a party to the appeal in the Court of First
Instance.  See analysis and links at <
http://www.groklaw.net/article.php?story=20060224151804474>; ECIS web site
at <http://www.ecis.eu/news/06_feb22.html>.



-- 
BUCK "MARBUX" MARTIN
  Director of Legal Affairs
  OpenDocument Foundation
  Contact:
<http://www.opendocumentfoundation.us/contact.htm>
-- Universal Interop Now!