R. Hewitt Pate, Apr 24, 2008
Few judgments of the European Court of First Instance (CFI) have attracted as much attention or controversy as the decision in Microsoft Corporation v. European Commission. One aspect of the case dealt with Microsoft´s practice of bundling its own Windows Media Player application with its ubiquitous Windows operating system. The Court upheld a Commission decision that found Microsoft liable under Article 82 and, as a remedy, required Microsoft to produce and market an unbundled version of its operating system called Windows N. But Windows N has failed to sell in the marketplace, and the market position of competing media players has nonetheless grown. The ineffective remedy calls into question the liability analysis that came before it. This article examines possible alternative remedies for technological tying and concludes that no satisfactory remedy was open to the Commission or the Court. A more realistic liability analysis would have been appropriate, and the doctrine of objective justification could have provided a better analytical vehicle for resolving the case. By recognizing that, in the context of the software industry, technological bundling is the paradigm of progress, the Commission and the CFI might have avoided an ineffective and potentially dangerous foray into regulation of software design.