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Re: EU anti-trust case, FSFE, Samba

From: Alexander Terekhov
Subject: Re: EU anti-trust case, FSFE, Samba
Date: Thu, 20 Sep 2007 19:34:25 +0200

Forgot one thing...

Alexander Terekhov wrote:
> Ciaran O'Riordan wrote:
> [...]
> > FSFE stepped in and argued that if Microsoft has to publish the protocol,
> > free software developers must be able to use it.  (So, no patents, no
> > licensing fees, no non-disclosure agreements, etc.)  FSFE also argued that
> > Samba is the only real competitor to Microsoft's server software, so Samba

Oh really? Grand Chamber:

478    FSFE asserts that Linux products do not exert a competitive
threat on the work group server operating systems market.

Here's more:

433    Finally, as will be explained in greater detail at paragraphs 595
to 605 below, the projected growth of Linux products on the work group
server operating systems market is lower than Microsoft claims and will
come about to the detriment not of Microsoft’s systems but, in
particular, of Novell’s systems and the systems of distributors of UNIX

461    The argument which Microsoft bases on the growth of Linux
products is refuted as wholly unsupported; the Commission refers to
recitals 506 and 632 to the contested decision, in which it is clearly
shown that ‘the past growth of Linux has been de minimis’. The last two
Mercer surveys demonstrate that Linux has only a very low market share,
in the order of 5%, on the work group server operating systems market.

583    Next, the IDC data, the results of the 2003 market enquiry and
Microsoft’s customer statements show that, contrary to Microsoft’s
assertions, Linux products also had only a marginal presence on the work
group server operating systems market at the time of adoption of the
contested decision.

584    Thus, the IDC data reproduced at recital 599 to the contested
decision show that the combined market share of vendors of Linux
products, by units shipped, fell, for the ‘file/print sharing’
subcategory and servers costing under USD 25 000, from 5.1% in 2000 to
4.8% in 2002. When measured by turnover, that combined market share
remained at 3.9% over that period.

591    Furthermore, the presence of vendors of Linux products on the
work group operating systems market, apart from the fact it is by no
means comparable to the market presence which Microsoft managed to
acquire in just a few years, was achieved not at Microsoft’s expense but
at the expense of Novell and UNIX vendors. As the Commission stated in
the rejoinder (paragraph 104), among the entities questioned by Mercer
whose use of Linux for work group server tasks had increased over the
previous five years, 67% had decreased their use of NetWare or UNIX,
while only 14% had decreased their use of Windows. As the Commission
correctly states at recital 632 to the contested decision, moreover, the
2003 market enquiry revealed only two instances of migration from
Windows to Linux for work group server tasks. 

594    In light of the factors referred to at paragraphs 583 to 593
above, the Court considers that the Commission was correct to find, at
recital 603 to the contested decision, that Linux vendors did not
represent a significant threat to Microsoft on the work group server
operating systems market.

603    Furthermore, as the Commission correctly observes at recital 609
to the contested decision, the limited growth that Linux is forecast to
achieve on the market, according to those projections, would be at the
expense, not of Windows, but of competing systems and, more
particularly, of NetWare. The Court observes, in that context, that in
April 2003 Novell announced that from 2005 its NetWare 7.0 operating
system would be sold in two different versions, one based on the
traditional NetWare platform and the other on the Linux operating system
(see recital 95 to the contested decision).

> > must be able to use the published information.
> >
> > The European Commission agreed.
> Eh? Here's what Grand Chamber held:
> 192    The first abusive conduct in which Microsoft is found to have
> engaged is its refusal to supply the interoperability information to its
> competitors and to allow its use for the purpose of developing and
> distributing work group server operating system products between October
> 1998 and the date of the contested decision (Article 2(a) of the
> contested decision).
> 193    By way of remedy for that refusal, the Commission ordered
> Microsoft, inter alia (Article 5(a) of the contested decision), to do
> the following:
> ‘Microsoft … shall, within 120 days of the date of notification of [the
> contested decision], make the interoperability information available to
> any undertaking having an interest in developing and distributing work
> group server operating system products and shall, on reasonable and
> non-discriminatory terms, allow the use of the interoperability
> information by such undertakings for the purpose of developing and
> distributing work group server operating system products[.]’
> 809    At the third stage, Microsoft is required to give access to the
> information concerned to any undertaking interested in all or part of
> the interoperability and to authorise that undertaking to implement that
> information in work group server operating systems (recital 1003 to the
> contested decision). In that context too, the conditions which it
> intends to impose must be reasonable and non-discriminatory (recitals
> 1005 to 1008 to the contested decision).
> 810    It is clear from those various provisions of the contested
> decision that there is nothing to prevent Microsoft, where the
> interoperability information sought by a given undertaking relates to a
> technology covered by a patent (or by another form of intellectual
> property right), from giving access to and authorising the use of that
> information by granting a licence, subject to the application of
> reasonable and non-discriminatory conditions.
> reasonable and non-discriminatory != royalty free, to begin with.

"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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