Five vendors join against Microsoft in EU case

Five large technology companies have banded together to support the European Commission in its attempt to stop Microsoft Corp. using its PC operating systems monopoly to dominate the markets for workgroup server and media player software.

IBM Corp., Nokia Corp., Oracle Corp., RealNetworks Inc. and Red Hat Inc. have applied as a group to intervene against Microsoft as the company appeals the Commission's antitrust ruling "because they are very concerned about Microsoft's anticompetitive conduct," according to their representative, Thomas Vinje, a partner with legal firm Clifford Chance LLP.

"Microsoft has been saying that the Commission stands alone and that it didn't have industry support. This demonstrates that that is untrue, that there is growing support for the Commission," Vinje said.

In March 2004, the Commission ordered Microsoft to pay a fine of €497 million (US$639 million), sell a version of its Windows operating system without Windows Media Player, and allow other companies access to information needed to make their workgroup server products work smoothly with PCs running Windows. Microsoft appealed the ruling in June.

The five companies asked the European Union's Court of First Instance for leave to intervene in the appeal through an umbrella organization, the European Committee for Interoperable Systems (ECIS). Only parties that can show that the case will directly affect them may apply to intervene. The court has already granted RealNetworks leave to intervene in the appeal. Intervenors are allowed to access the court's case file and make written comments on proceedings.

After Microsoft lodged its appeal, it began settling long-standing disputes with some of the companies and organizations that had opposed it in the case, including Sun Microsystems Inc. and the Computer and Communications Industry Association (CCIA).

Oracle and Red Hat are still members of the CCIA, but Nokia left when the association settled with Microsoft and withdrew from the European antitrust case. Vinje previously represented the CCIA in this antitrust case.

ECIS asked to intervene in the case in December or January -- after the usual deadline for filing such requests had passed, Vinje said. The group asked for the deadline to be waived because of the exceptional circumstances surrounding the CCIA's withdrawal from the case, and it is now up to the court to decide whether to accept the ECIS request, he said.

Parties which apply for leave to intervene after the deadline may not normally make written interventions nor access the court's case file, but they may be allowed to intervene orally at hearings, according to court spokesman Christopher Fretwell. He declined to say whether ECIS had applied for leave to intervene, saying the court can only confirm interventions when they are accepted or rejected.

Nokia has been a member of ECIS since the group was created in the 1990s, a company spokeswoman said, although she declined to comment further on the case. "I think it would be inappropriate for one member to comment for the group," said Arja Suominen, the company's vice president of corporate communications.

IBM too confirmed its membership of the group. "ECIS has a wide ranging agenda on behalf of greater ICT interoperability which is a goal that IBM supports because of the benefits that will accrue to all users of information and communication technology," said Fred McNeese, director of media relations for IBM in Europe, the Middle East and Africa.

"We believe that the case has raised a number of issues involving interoperability and we've decided to address those issues with other industry players," he said.

McNeese declined to comment on when IBM joined ECIS, or why the company didn't file to be an intervenor earlier or individually.

Oracle, RealNetworks and Red Hat did not immediately respond to a request for comment.

In a court order on March 9, the Court of First Instance granted a number of other companies and organizations leave to intervene in the case. On Microsoft's side are the Association for Competitive Technology Inc., the Computing Technology Industry Association Inc., DMDsecure.com BV, Exor AB, Mamut ASA, MPS Broadband AB, Pace Micro Technology PLC, Quantel Ltd., Tandberg Television Ltd., and TeamSystem SpA.

In the Commission's corner are AudioBanner.com (trading as VideoBanner), the Free Software Foundation Europe eV, RealNetworks Inc. and the Software & Information Industry Association (SIIA).

The five members of ECIS already have a voice in the case, as they are members of the SIIA -- but they may have trouble making themselves heard: the SIIA has 760 members, according to its Web site.

(Scarlet Pruitt, in London, contributed to this report.)

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