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Activists fight on in EU-Microsoft antitrust dispute

Carlo Piana is part of a brigade of software activists and lawyers who formed a primary line of defense in court this week for the EU in its long-running antitrust dispute with Microsoft.

Two years ago, Piana, a lawyer from Milan with a passion for technology, awakened to the news that the EU had fined Microsoft a record 497 million euros (more than US$600 million) for abusing its dominant position in the software market by designing and marketing software in ways that excluded rivals from the market.

After Microsoft vowed to overturn the decision on appeal, Piana received a call from a friend who is a member of the Free Software Foundation Europe, which supports making software code more accessible to the public.

"He was worried because Microsoft was especially targeting free software," said Piana, who had already done some work for his friend on free software issues. "I said to him, `OK, I'll help you out. I guess I'm the most expert person you know.'"

As it turns out, Piana and his colleagues from the Free Software Foundation are among the most prominent supporters of the EU who officially remain in the antitrust case.

Many titans of the software industry backed European regulators initially, but Sun Microsystems settled with Microsoft for US$1.6 billion in April 2004, while Novell settled in November 2004 for US$536 million. RealNetworks dropped out in October last year after settling for US$761 million.

The settlements left a group of computer programmers and activists, united under the banner of the Free Software Foundation Europe, with a bigger-than-expected role in supporting the union's goal of loosening Microsoft's grip on the software industry.

On Friday, 13 judges at the second-highest tribunal in Europe, the Court of First Instance, wrapped up five days of testimony that could determine whether the ruling will stand and whether Microsoft must open up its Windows operating system to greater competition.

The parties could appeal any verdict to the European Court of Justice, the highest EU tribunal.

After a grueling fourth day of testimony on Thursday evening, Microsoft's chief lawyer, Brad Smith, led his team of lawyers out of the courtroom and down the polished granite corridors to their luxury hotel across the street to prepare their final testimony behind closed doors.

Just a few meters away, huddled in the haze of the smoking area in the court's cafe, was a diverse group including Piana and Andrew Tridgell, the Australian developer of software called Samba, who had enlivened the courtroom that afternoon.

"Tridge is something unexpected and something the judges don't often see," Piana said, using the nickname for Tridgell, who speaks with the earnestness of a Boy Scout.

"I don't want a hired gun, I want a real person," Piana added.

It remains to be seen whether the European judges, who are famously hard to read from their questioning in court, will be swayed by the likes of Tridgell or Piana.

Bo Vesterdorf, the Danish president of the court, and John Cooke, the Irish judge who will take the lead in drafting the decision, are not expected to issue a verdict until next year.

In testimony throughout the week, judges doled out their fair share of painful questions to both sides, exposing holes in the union's case as well as forcing the Microsoft side to make concessions.

On Friday, Microsoft argued that the record fine imposed by the commission should be either vacated or reduced significantly, and each side reiterated its arguments that its approach to the software industry was more favorable for the future of innovation in Europe.

But Tridgell's contribution may prove important, not for the evidence he presented, but because of the way he characterized the world of software development and Microsoft's role in it. In one exchange, Cooke asked Tridgell whether he ever tested Samba software to determine whether it operated smoothly with rivals' systems.

Tridgell's reply seemed to illustrate the problem posed by Microsoft to the rest of the software industry more effectively than all the legal and technical explanations offered by the EU during the rest of the weeklong hearing.

Once a year, Tridgell said, top software programmers from rival companies gather for a "plugfest," where they connect computers together to see how their programs interoperate.

"We work around the clock for a week," he told a rapt courtroom. "We torture our machines in the pursuit of interoperability."

"Can you do this test with Microsoft?" Cooke asked.

"Yes, but they don't turn up," Tridgell said.

Later, Tridgell said that for the last six years Microsoft has boycotted the event.

Microsoft said the technologies demanded by Samba were available for license but that Samba was at odds with industry norms.

"While Microsoft respects Samba's technical expertise, it does not share its approach to intellectual property rights or the value of software technology," Ian Forrester, a lawyer for Microsoft, told the court.

Sitting with the Free Software Foundation Europe on Thursday evening, and closely following Tridgell's thoughts on the day's testimony, were representatives of IBM and Oracle, major Microsoft competitors. Neither IBM nor Oracle finances the foundation, according to a Free Software Foundation spokesman, Joachim Jakobs.

IBM and Oracle, however, are members of the European Committee for Interoperable Systems, or ECIS, a trade group that lodged a new EU antitrust complaint against Microsoft this year.

Tridgell "was a witness sent from heaven," said Thomas Vinje, a lawyer for the ECIS, who testified in support of the commission's decision this week. The decisions by Sun, Novell and RealNetworks to settle had been "a loss to the court," Vinje added.
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