I am writing this while waiting for my flight to take me back to Milan. I thought it was a good idea to settle down a little bit and start sharing with you the incredible feelings I have experienced today. Where I was it is clear from this video, from Youtube. I am the one behind the barrister who is wearing a wig in the first shot of it.
I believe all of you know by now what the content of the much awaited verdict in Microsoft vs. EC Commission case is. It's no secret it is a total, unmistakable, undeniable victory for the Commission, and for its supporting interveners too.
Yesterday night I was in the lobby at Sofitel, quietly chatting with James Flynn, QC, an English Barrister representing SIIA in this case, and Laura Alvizar, a Spanish Lawyer representing AudioBanner. That by the way made almost the entire list of friendly interveners remaining (along with ECIS) after the rest of the pack dropped off thanks to private settlements with Microsoft, from which nobody but the withdrawing companies earned anything, especially not the competition on the market. Rather the opposite.
We were wondering about the possible outcome and what were the odds of today's verdict. With us was sitting an independent expert on antitrust matters who has been following the case with a close eye since the beginning. Anne Morphey of Clifford Chance (who in the video stands on my left and Georg Greve, the President of FSFE, completed this informal panel. The best bet of everybody was “split decision”, Microsoft winning on the bundling case (AKA the multimedia case), the Commission winning on the rest, and possibly losing on the monitoring trustee mechanism. My words were “I am optimistic by nature”, but I was of course not feeling very confident about a total win.
This morning spirits were high on both parties. I cheered all the opponents, including Mr. Brad Smith and the two top lawyers from Microsoft: Mr. Jean-François Bellis and Ian Forrester, QC. We are really on friendly terms (especially with Mr. Bellis, I am member of an IT Lawyers group counting his firm among its members), as they are really gentlemen. After spending so much time litigating, we are almost buddies (ok, I said “almost”). The room was packed of journalists, cameramen, photographers (my envy for their top class cameras, I am on a prosumer digital reflex, although very good). You could cut tension with a knife.
Then the Court was announced, precisely at 9:30. Silence fell. President Vesterdorf started reciting the summary of the Decision, announcing the parties and respective lawyer (including my very humble self) and starting with the operative part of the judgement. The first words were “The court of First Instance annuls…”. My blood froze for a split second. Then he went on “… Article 7 of the Decision…”. “Hang on”, I said to myself, “Article 7 is about the monitoring trustee. If they started with it, the rest is going to be upheld, this is huge! Settle down and enjoy the rest. Keep a poker face”. But my heart was dancing samba (small “s”).
Then the words that close the game, the final smash. Game, set match. “Dismisses the remainder of the Application”. “Gee, we won!”. I could not help, I turned my head towards Jeremy Allison (Google, Samba Team), Volker Lendecke (of Ser Net, and Samba Team) and Georg Greve (president, FSFE) (our wunderteam), blinked an eye, then got again hold of myself. That wasn't over, Microsoft was slapped with the order to pay the other parties' expenses, they must actually pay our bills! Then the Judges (thirteen, a record), filed off, time to cheer up! Hands shaken, lawyers hugging each others, celebration!
This ends a three-odds year's legal struggle, for what concerns me, with the greatest achievement of my professional career. Press went frenzy, but I stayed just a little longer in the courtroom, still not believing what had just happened. Then a little bit of interviews, and that was it.
What the future will bring, this is unknown. I am still reading the Judgment. Even the part where the Commission was turned down, is not that bad, as there is nothing contrary to establish a monitoring process, just it was found wrong to impose on Microsoft to decide how this would look like (and to pay for it). So the Commission was said “you do your own job, decide what's appropriate, pay for it”. With more than 1bn fines, 497 (plus interests) already secured with this judgment, there is plenty of money to pay such a compliance scheme.
It is hard to say if the Commission will be able to take home a real result out of this judgment. Microsoft has a brilliant record of being found guilty in Court and escape its doom in the compliance process, and we know that the devil hides in details. But it is hard to see how this judgment, so clearly deciding for one party, with direct, even blunt words against the other, shall not be followed up properly. This not limited to Europe, but to the rest of the world too.
One final though. We have been promised that, should the Commission have won this case, also my clients Samba would get a chance to be on the receiving end of the information (not source code!) Microsoft is compelled to reveal. But Microsoft decided to write licensing agreements which expressly exclude GPL code writers (thus Samba) to license out the information. Which means that a remedy to restore competition should not work in favour of those who compete. This must be changed, we will do whatever we can to make sure that this happens.
After today's ruling, I am confident the goal is really closer.