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EU Commission v. Microsoft - News
Monday, June 06 2005 @ 09:55 AM EDT

Microsoft is still sparring with the EU Commission, according to a Commission press release today on latest developments. The Commission’s March 2004 decision regarding Microsoft and interoperability requires Microsoft to disclose "complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers."

Here's what they are currently sparring about. I hope you are sitting down: Microsoft doesn't want code developed by recipients of its interoperability information to be able to release code under "an open source license." The Commission's position is that if its decision is upheld, it will immediately require exactly that, for protocols that "do not embody innovations".

Zounds.

Wait a sec. Microsoft? Innovations? They can only keep the protocols propretary if they can prove they are innovative? What are the odds of that?

The Commission rejected Microsoft's earlier proposals on implementation of the decision regarding interoperability, because the Commission felt they were not "reasonable and non-discriminatory." It seems the Commission cares about Free and Open Source developers being able to interoperate. How refreshing is that? Unless you are Microsoft, that is. Remember Massachusetts and their weasling about how "reasonable and non-discriminatory" doesn't mean you have to let FOSS in, that "royalty-free" is sufficient? The EU, in contrast, gets it. If Microsoft's number one competition is not allowed to interoperate, then what is the point of compelling the monopolist to offer interoperability information to everyone else?

Duh.

The Commission says today that it has received Microsoft's latest proposals on how they plan to comply with the EU Commission decision and the Commission will now "market test" them, and they say it is "determined" that all elements of the Commission's decision regarding Microsoft and interoperability be implemented. Commissioner Neelie Kroes says, "This includes the ability for developers of open source software to take advantage of the remedy."

Naturally, Microsoft isn't so keen on that last part. It has agreed to some changes, but here's how the press release describes the amazing sticking point, according to the press release:

Microsoft considers that the software source code developed by recipients of the interoperability information that implements the Microsoft protocols should not be published under a so-called “open source licence”. The Commission nevertheless considers that, if the Court of First Instance rules in favour of the Commission in the pending application for annulment filed by Microsoft (case T-201/04), this should be possible for the protocols that do not embody innovations.

The Commission is committed to ensuring that this will be the case immediately after any such favourable ruling by the Court.

So now, there begins a process of evaluating "the innovative character of the protocols at stake, and identifying appropriate comparables to verify whether the remuneration that Microsoft proposes to charge is reasonable."

Microsoft must be breaking out in hives.

UPDATE: Of course, there is a catch. No one ever just tells the truth, the whole truth and nothing but the truth. The International Herald Tribune says that what really happened is that they did a deal. Microsoft agreed to a worldwide solution, and the Commission agreed to wait for the court to rule before requiring that open source be allowed to play. Here's the catch: it could take 5 years for that court process to run its course:

The European competition commissioner, Neelie Kroes, has agreed to suspend a part of the historic antitrust ruling last year against Microsoft until after the company's appeal is concluded in the coming years, the commission said Monday.

  But the commission has also insisted that part of the ruling be applied globally, not just in Europe.

  In addition to being fined €497 million, or $610 million, Microsoft was also ordered to share details about its Windows operating system with rival software makers, including so-called open source developers, to allow them to build programs that function properly with Windows.

  Under an informal agreement reached last week with Microsoft, the commission agreed to exclude open-source software developers from the benefits of this remedy for the time being. In return, Microsoft vowed to apply the remedy globally.

Now, I'm the one breaking out in hives. Here's the press release in full.

******************************

Brussels, 6th June 2005

Competition: Commission to market test new proposals from Microsoft on interoperability

The European Commission is to market test new proposals it has received from Microsoft outlining how the company intends to implement the Commission’s March 2004 Decision in the field of interoperability (see IP/04/382). The Decision required Microsoft to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers. The Commission is putting Microsoft’s proposals to industry in order to assess them in full. Subject to the results of this market test, work group server developers interested in receiving interoperability information from Microsoft will be able to develop and sell their products on a global basis. Microsoft has also recognised the need to enhance the options available to recipients by creating a range of packages of information from which they can choose according to their needs. Furthermore, there will be a category of interoperability information that will be disclosed royalty-free. The Commission remains committed to ensuring that in due course it will become possible to use certain interoperability information from Microsoft in software products distributed under an open source licence.

“I am happy that Microsoft has recognised certain principles which must underlie its implementation of the Commission’s Decision” said European Competition Commissioner Neelie Kroes. “I remain determined to ensure that all elements of the Decision are properly implemented. This includes the ability for developers of open source software to take advantage of the remedy” she added.

The Commission’s Decision of March 2004 requires Microsoft to disclose interoperability information to developers of work group server operating systems. Following rejection of Microsoft’s application for suspension of this requirement by the Court of First Instance in December 2004 (see MEMO/04/305), the Commission was concerned that the conditions imposed by Microsoft for access to, and use of that information were not reasonable and non-discriminatory.

Microsoft has now agreed to make a number of changes to these conditions. Microsoft has agreed that it will allow development and sale of interoperable products on a worldwide basis. Microsoft has also recognised that a category of the information which it is obliged to disclose will be royalty-free.

Microsoft considers that the software source code developed by recipients of the interoperability information that implements the Microsoft protocols should not be published under a so-called “open source licence”. The Commission nevertheless considers that, if the Court of First Instance rules in favour of the Commission in the pending application for annulment filed by Microsoft (case T-201/04), this should be possible for the protocols that do not embody innovations.

The Commission is committed to ensuring that this will be the case immediately after any such favourable ruling by the Court.

Microsoft’s proposals will now be market tested in order to enable the Commission to make a final assessment. In this context, the Trustee foreseen by the Decision will, as part of its mandate in assisting the Commission in monitoring Microsoft’s compliance, provide technical advice to the Commission. This will include evaluating the innovative character of the protocols at stake, and identifying appropriate comparables to verify whether the remuneration that Microsoft proposes to charge is reasonable.  


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