CyberTech Rambler

March 7, 2006

When can one argue that a document is available? (Updated)

Filed under: Uncategorized — ctrambler @ 3:18 pm

I was reading Microsoft’s response to the European Commission’s Statement of Objections over its Antitrust case in EU. One thing caught my eye. It is actually Footnote 2 on Page 7 of the Main Text(The 78 pages one, second on the list). It has to do with when is a document actually available.

In short, Microsoft alleges that the EC is not playing fair because it issued its statements of objections on 21st Dec 2005 without first reviewing Microsoft’s update to the documentation on 15th Dec, i.e., the last date that Microsoft has to provide the documents.

As usual, the devil is in the detail. On the above mentioned footnote, Microsoft says:

“The revised documentation was made available at Microsoft’s headquarters on 15 December 2005, and Microsoft so confirmed to the Commission, but no one from the Commission, the Trustee or any prospective licensee viewed the documentation prior to the issuance of the Statement of Objections on 21 December 2005 (“SO”). Microsoft was not able to send a copy to the Commission until December 23, because several days were needed to add digital rights management features to the documentation. All this was in accord with the requirements of the Article 24(1) Decision and the 2004 Decision, as discussed in Part V. “

Hence, the question I have to ask is, is the documentation really available on 15th December? According to Microsoft’s interpretation, the documents are available on the 15th, because if EC officials/Trustees/prospective licenses simply bother to go to Microsoft HQ in REDMOND, USA!! (I assume they meant National Headquarters, not the one in Seattle, USA), (Update: Para 109 says it is Redmond USA) they will be able to view it. This arguement implies that its delivery to the Commission on 23 December is not important, is just a courtesy and out of respect for the Commission. Furthermore, Microsoft did not modfy the document after 15th December as the delay was to add Digital Restriction Management on to the documentation.

Is this an acceptable definition of making documents available? It is the norm to assume that provider must delivered the document to the receipient’s office. I doubt Microsoft is going to accept that documents from the EC is available to them until EC delivered it to its office. Hence, it cannot claim the documents are available if receipients have to travel to its offices. In the good old days, one have to deliver the document to the doorsteps of someone’s office, get a dated receipt for it. Today, it is argueably Ok to say that if a non-critical document is available through a website, where the stakeholders (EC,trustees etc) can dowonload, or when the document is attached to an email mailed to the receipient, delivery is achieved. However, for important documents, such as this one, confirmed delivery is essential. It may be in the form of laptop computer or CD ROM but it must be physically presence in the receipients office. The point is the receipients must be able to examine the documents without much effort on his/her part. In other words, the onus is on the person providing the document, Microsoft in this case, to make reasonable effort to make the document available.

Requiring the receipient to travel to Microsoft headquarters and review the document seriously inconvenient the receipients. This is true even if Microsoft is willing to foot the cost of travel. Moreover, the document is not viewed in a neutral place but in a hostile setting (MS headquarter). That is much more objectionable then the travelling requirement.

It is true that some government offices require receipients to travel to its office to collect communications/documents. This is usually done when the government cannot know beforehand who will want the documents. Furthermore, it is the government or authorities that can claim this practice when dealing with you or me or private entities like Microsoft. To ask the government or authorities to come to collect from private persons or entities is laughable.

All in all, I do not consider the documents delivered until 23 December when a copy arrived at the commission. Thus, in my view, the European Commission is within its rights to ignore Microsoft’s 15th December revision. It was not delivered in time.

In fact, should the Commission have any problems reading the documents for any reasons (I am thinking of the Digital Restriction Management), one can argued that the document is not delivered until the problems are resolved.

Do Microsoft’s counsels know that their reasoning is flawed? I would think so, coz they prefered the word “available” rather than “delivered”.

(Update) On footnote 73 (p35), Microsoft indeed argued that they complied with the 15th Dec deadline because the Instruction to Microsoft only requires Microsoft “to make Interoperatbility Information available to undertakings wishing to develop competitive operating systems and to established a mechanism for such undertakings to evaluate the Interoperability Information” and by making the Interoperatbility Information available at its USA headquarter it satisfied the requirement. That is stretching the term “availability” beyond its elasticity limit and they know it. Things are not available if one is made to jump-through-the-loops to get it. If this type of “availability” definition is acceptable, next time someone will say they did make things available by writing the documents in braille.

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