Europe’s second-highest court will hear Microsoft’s appeal to the EC’s 2004 order that Microsoft sell a version of its Windows operating system without its Media Player software built in.
The EC alleged that by building its video and audio player directly into Windows, Microsoft had prevented rivals from selling media software of their own.
Microsoft counsel Jean-Francois Bellis said the EC was erroneous in its ruling because it did not take into consideration the lack of demand for a version of Windows without its own media functionality.
The EC’s premise that by bundling Microsoft’s Media Player into Windows, content providers would be forced to choose Windows Media Player is flawed at every step, Bellis said.
Just 1,787 copies of an alternate version of Windows without Microsoft’s Media Player Windows XPN had been sold since March 31, he said. That accounts for fewer than 0.005% of all Windows XP sales during the same period, Bellis said.
To take an analogy used by the Commission itself, the fact that laces are sold separately from shoes does not demonstrate that shoe manufacturers are engaged in a tying practice by selling shoes only with laces. One must still consider whether there is demand for shoes without laces, Bellis said in his opening statements.
One would look in vain in the voluminous file of this case, consisting of tens of thousands of pages, for a letter sent to just one PC manufacturer asking whether it would have any interest replacing the media functionality in Windows with a third-party media player.
Bellis said that having Media Player built into Windows does not prevent PC makers or consumers from installing and using rival systems. Bellis argued that the EC did not take into consideration evidence that did not support its theory.
Microsoft told the court that the average number of media players used by consumers rose to 2.6 this year, up from 2.1 in 2004. And OEMs today pre-install more media players on PCs today, on average of 3.2 per machine, versus an average of 1.4 players per PC in 2004, Microsoft said.
The rapid rise of Apple’s iTunes service and Macromedia’s Flash media player demonstrate the vigorous competition in the media player market, the company argued.
During the second half of the hearing, the courts will focus on the EC’s demand that Microsoft make its code available to rivals in order for non-Microsoft work group servers to run as well as Microsoft’s on Windows PC and servers.
Microsoft did release technical documentation to its competitors, but the EC ruled it was inadequate and late last year threatened Microsoft with potential daily fines of as much as $2.4m backdated to mid-December.
On Friday April 28, 2006, closing arguments from both sides will be heard.
