JOLT Digest

European Court of First Instance rejects Microsoft challenge to European Commission decision

Edited by Johnathan Jenkins

Judgment T-201/04
Full opinion
European Court of First Instance summary and press release

On September 17, the European Court of First Instance rejected Microsoft’s challenge to the European Commission’s 2004 determination that Microsoft “abused a dominant market position” by:

1. refusing to supply competitors with proprietary “interoperability information” necessary to develop products that would compete with Microsoft workgroup server products, and
2. bundling Windows Media Player with Windows operating systems, without an unbundling option, between 1999 and 2004.

In its 2004 determination, the Commission imposed a fine of nearly €500 million, which the Court left unchanged. Microsoft may appeal the decision to the European Court of Justice within 60 days.

The court sided with Microsoft on one procedural issue, holding that the Commission exceeded its authority in requiring Microsoft to appoint a monitoring trustee with powers independent of the Commission at the company’s own expense. Microsoft itself acknowledged, however, that the trustee issue was relatively unimportant.

BBC News summarizes the decision.
Microsoft issued a statement shortly after the decision was issued.
The EU Law Blog comments on the trustee issue.

House Passes Major Patent Reform Bill

By David Lawson — Edited by Wen Bu

H.R. 1908
Full Text with Comments
CRS Bill Summary
Details of the Vote

On September 7, the U.S. House of Representatives passed H.R. 1908, a major patent reform bill, by a vote of 220-175. The bill is now on the Senate legislative calendar awaiting action.

The Washington Post identifies the players and summarizes the debate.
Peter Zura’s 271 Patent Blog focuses on the late amendments that proved necessary to the bill’s passage.
Patent Docs detail the arguments against the bill.

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Stronger 1st Amendment Review of Expansions in Copyright Protection?

By Nick Bramble

On September 5, the 10th Circuit handed down its opinion in Golan v. Gonzales, No. 05-1259 (10th Cir. Sept. 4, 2007). The court held that the implementation of the Berne Convention on Copyrights (the Uruguay Round Agreements Act § 514) may violate the 1st Amendment by removing some materials–books, films, and songs, mostly–from the public domain and placing them under copyright protection. Generally, the court’s ruling would expand the scope of 1st Amendment review when Congress acts to change copyright law. The court reasoned that if Congress alters the “traditional contours of copyright protection,” then its actions should be subject to strict or intermediate scrutiny. See Slip Op. 05-1259 at 16. The 10th Circuit concluded that URAA § 514 did alter these “traditional contours” by deviating from the “bedrock principle of copyright law that works in the public domain remain in the public domain.” Id. at 16-17. It remanded to the district court to determine whether § 514 was a content-based or content-neutral restriction on speech and to apply the necessary 1st Amendment review.

From the free culture side of the copyright debate, Jack Balkin celebrates the ruling but cautions that its overreliance on Eldred v. Ashcroft’s “traditional contours of copyright law” test might justify expansions of copyright law if it can be shown that new copyright laws “create differences only in degree rather than kind” and “are part of a gradual historical progression of increased copyright protection.” Larry Lessig weighs in on Golan’s relevance to his petition to the Supreme Court to grant review of Kahle v. Gonzales, a recent 9th Circuit ruling that looked less favorably on a similar constitutional challenge to copyright law. William Patry is far less enthusiastic, calling the ruling “the first vindication of an approach argued by Larry Lessig and colleagues that I had thought made no sense at all.”