The Contestable and Potentially Harmful Conclusions of the 'Microsoft' Case - A Stark Attenuation of the Exceptional Circumstances Test and the Application of an Inappropriate Tying Test

Master's Thesis from the year 2009 in the subject Law - Media, Multimedia Law, Copyright, grade: Distinction, University of Edinburgh (School of Law), course: Master Thesis in the LLM in European Law Programme, language: English, abstract: In what has been described as the most important competition law case in EU history the CFI upheld the Commission's finding that Microsoft was guilty of committing two infringements of EC competition law: illegitimately to have refused to supply intellectual property (IP) protected interoperability information to competing workgroup server operating systems (WGSOS), and to have performed an illegal tie of its Windows Media Player (WMP) to its dominant operating system. Microsoft has been labelled 'the biggest encroachment on intellectual property in European competition law history' and it is accused of hampering innovation and interfering with beneficial product integration by applying an anachronistic form-based tying test. In the opinion of the author the Judgment is an esoteric masterpiece of obfuscation that despite its considerable volume does little to provide legal certainty regarding the conditions under which compulsory licensing of IP rights (IPRs) will occur, or when technical integration will be deemed legal. Microsoft is of ever-increasing relevance for legal academics and undertakings alike for several reasons: First, since it is the most high profile ruling on the two most controversial issues within EC competition law - compulsory licensing of IPRs and tying - the Judgment will be a fundamental point of reference, especially amid claims that competition authorities' concerns regarding the acquisition and use of IPRs are increasing and that legitimate worries of IP owners (IPOs) are accordingly engendered. Second, high tech markets are increasingly important to consumers and to the global economy, and Microsoft is the 'focal point for the ongoing debate about the future direction of the software business' because it concerns all dominant high tech undertakings. Third, Microsoft was concluded in the light of the Lisbon Agenda, where the EU officially acknowledged IP protection's paramount importance in generating the innovation necessary for economic progress. The Lisbon Agenda has lead to clarion calls for the improvement of the IP environment in Europe, and for innovation considerations to take more prominent part in competition law analysis. Yet this dissertation shows that the opposite regrettably occurred in Microsoft, where IPRs were essentially deprived of their use as a result of an indefensible weakening of the exceptional circumstances test. [...]