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September 17, 2007


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Doug Lichtman

Randy -

Any thoughts on how this decision changes the dynamics for other firms who might now come before the EC? The popular press response to this decision has been not to focus on the implications for Microsoft, but instead to focus on how this might embolden the EC to use its power against firms like Apple, QCOM, and Rambus. Indeed, even Brad Smith spoke about that early on in his first response to the announced decision.

Are the popular press writers correct in thinking about this as a game-changer in terms of the EC's likely influence going forward? (I fear so, but curious your thoughts.)

Doug Lichtman
Professor of Law

Randy Picker


Nice to see you back in our virtual halls! I understand the popular press instinct--I said exactly this in talking to press folks yesterday--but I still need to fight my way through the full decision.

For Apple, the obvious issue is interoperability given the way that it has forced updates throughout the iPod ecosystem to break interoperability (with RealNetworks before and more recently with ring-tones).

I haven't looked at the EU stuff on Rambus; the US version wasn't that interesting intellectually--mainly about bait and switch in the standard setting process and the question of whether we were going to punish that through antitrust or fraud or something more equitable--and didn't raise the intellectually tricky issues at stake in Microsoft on product scope and interoperability.

I don't know enough about the QCOM situation to say anything (have been carrying around the recent decision for the last couple of weeks but still haven't read it).

I will do another post on the legal substance of the EU MS decision when I get through it.


Jesse Markham


I wonder if those of us who teach antitrust law (I teach the course at USF Law School) could somehow share these burdens when new cases come down in mid-course. The squibbing function is not one we ought to all replicate.

Jesse Markham


Jesse, your attempt at horizontal restraints and market division is appalling. ; )

Matthew Hartogh

Matthew Hartogh
Maastricht NL


Imporant issues have been raised regarding the interoperability of Apples iPod system in light of this ruling and more generally about this ruling as a precedent generally for the entry of smaller technology firms in the Europe market.

Intellectual Property is of vital importance to these firms.

Justice Brandeis pronounced on the issue of privacy and due process which is relevant to the instant case:

Justice Brandeis's dissent in
Olmstead v. U.S. (1928):

 "The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect."

-- posted by Matthew Hartogh

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