id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
cblr-2936	Devlin, Alan; Jacobs, Michael	Microsoft’s Five Fatal Flaws	2009	42	.pdf	application/pdf	13944	588	45	The ensuing test (the Magill test) for establishing an abuse of a dominant position had four parts: (1) the refusal prevents the emergence of a new product; (2) for which there is significant consumer demand; (3) no objective justification exists; and (4) the result of the refusal is to reserve the downstream market for the dominant undertaking.79 Perhaps the most noteworthy aspect of the case was the ECJ's holding that intellectual property protection did not constitute an objective justification for excluding others from the information there at issue.' The enormity of this holding is magnified when one considers that the very raison d'6tre of intellectual property is the right to exclude.81 As explored above, the issue of whether to promote long- run innovation at the expense of short-run consumer wealth involves an empirically indeterminate inquiry, though it is surely true that the case for diluting the exclusive force of an intellectual property grant for the benefit of consumers may 76 Case T-69/89, RTE v. Comm'n, 4 C.M.L.R. 586 (1991); Case C- 241/91, RTE v. Comm'n, 1995 E.C.R. 743. No. 1:671 MCROSOFT'S FIVE FA TAL FLA WS D. The Microsoft Decision The European action against Microsoft resulted from the latter's refusal to grant Sun Microsystems the specifications necessary to render Sun's Solaris server operating system interoperable with Windows client PCs and servers.9 The Commission (the regulatory agency) found that Microsoft had a dominant position in the market for work group server operating systems, 91 basing its determination in part on network effects and in part on the finding that Microsoft's withholding interoperability information created an additional entry barrier.92 In analyzing the propriety of Microsoft's actions, the Commission began by noting that a simple refusal to license intellectual property rights can amount to an abuse of a dominant position.93 Observing that interoperability with the client operating system is of significant competitive importance in the market for work group server operating systems9-an observation that would seem to fall far short of the ECJ's determination in Bronner that the thing to be disclosed be indispensable for any competition 9 -the Commission concluded that Microsoft had abused its position.96 In making this determination, the Commission noted that Microsoft's refusal puts Microsoft's competitors at a strong competitive disadvantage.	cache/cblr-2936.pdf	txt/cblr-2936.txt