Wednesday, May 7, 2008
Posted by D. Daniel Sokol
Eleanor Fox of NYU Law provides a detailed analysis of Microsoft (EC) and Duty to Deal: Exceptionality and the Transatlantic Divide in her latest article.
ABSTRACT: This article examines Microsoft’s offense in withholding full information to its workgroup server operating systems rivals so that they could not interoperate with Microsoft’s systems as seamlessly as Microsoft could.
This article agrees with John Vickers’ observation that the Court stretched each of the Magill/IMS criteria defining circumstances so exceptional that they warrant a duty to deal, and thus created confusion as to the limits of exceptionality. It argues that the Court should have resorted to concept rather than factors (principles rather than rules) to define exceptionality, and that, doing so, it might have reached the same outcome, but in a more principled way. The article concludes, however, that the duty-to-deal outcome in Microsoft is not the only logical one; indeed, where a court ends is a function of where it begins.