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Dear MA, Please Note: EU Commission Threatens MS With $2.4 Million Daily Fines
Thursday, December 22 2005 @ 11:05 AM EST

Dear Massachusetts (Governor Romney, Secretary Galvin, Senator Hart, et al):

Are you watching this?

Microsoft, as you may have heard, has been under pressure in Europe to make their APIs available to its competition for interoperability purposes. Now, so far, that has meant only that they have to do so for non-Linux competitors, as they were able to achieve a carve-out that leaves Linux and all FOSS out in the cold during the appeal. For all their other competitors in the server space, they were ordered "to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers". Of course, they claim they have, and they did turn over documentation.

But Professor Neil Barrett, the Monitoring Trustee, monitoring their compliance with the EU order says, according to the EU Commission press release, the technical documentation Microsoft submitted is "totally unfit at this stage for its intended purpose":

Since the 24(1) Decision, Microsoft has revised the interoperability information that it is obliged to disclose. However, the Commission takes the preliminary view that this information is incomplete and inaccurate. This view is supported by the report of the Monitoring Trustee, which concludes that, “any programmer or programming team seeking to use the Technical Documentation for a real development exercise would be wholly and completely unable to proceed on the basis of the documentation. The Technical Documentation is therefore totally unfit at this stage for its intended purpose.” The report also states that, “the documentation appears to be fundamentally flawed in its conception, and in its level of explanation and detail... Overall, the process of using the documentation is an absolutely frustrating, time-consuming and ultimately fruitless task. The documentation needs quite drastic overhaul before it could be considered workable.”

Ask yourself this: is it because Microsoft doesn't know how to write clear documentation?

Therefore, the Commission has issued a statement of Objections against Microsoft:

The European Commission has issued a Statement of Objections against Microsoft for its failure to comply with certain of its obligations under the March 2004 Commission decision (the “March 2004 Decision”, see IP/04/382). That decision found Microsoft to have infringed the EC Treaty rules on abuse of a dominant position (Article 82) by leveraging its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players. One of the remedies imposed by the decision was for 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 Statement of Objections indicates that the Commission’s preliminary view, supported by two reports from the Monitoring Trustee (see IP/05/1215), is that Microsoft has not yet provided complete and accurate specifications for this interoperability information. After giving Microsoft an opportunity to reply to the Statement of Objections, the Commission may impose a daily penalty.

They have until January 25 to comply or the fines start, retroactive to December 15. Playing nicely with others is not a Microsoft skill. And, in fact, they are huffing and puffing that they will fight the Commission's "unjustified" demands to the full extent of their legal powers. Microsoft's attorney is quoted in the BBC News article:

"We will contest today's statement to the full extent permitted under EU law, including a full oral hearing on these issues," Microsoft legal chief Brad Smith said in a statement.

They do have that right, according to the EU press release:

Microsoft has five weeks to respond to the Statement of Objections and has a right to an Oral Hearing. The Commission may then, after consulting the Advisory Committee of Member State Competition Authorities, issue a decision pursuant to Article 24(2) of Regulation 1/2003 imposing a fine on Microsoft for every day between 15 December 2005 and the date of that Article 24(2) decision. The Commission may then take other steps to continue the daily fine until Microsoft complies with the decision.

As regards the second issue highlighted in the Article 24(1) decision, namely the obligation for Microsoft to make the interoperability information available on reasonable terms, the Commission, with the input of the Monitoring Trustee, is currently evaluating additional information provided by Microsoft.

The EU Commission's FAQ tells us this final tidbit:

Is the Commission examining other allegations relating to Microsoft?

No allegations against Microsoft have been formally raised yet with the Commission. If they are, the Commission will naturally examine them on their merits.

Here's a nice map of Europe and the countries' flags, in case Microsoft's Steve Ballmer wants to throw a chair in anyone's direction.

So, what might Massachusetts learn from this story? You are grown men, so you can do the math without me. But here's my hint anyway: if Microsoft tells you it will be open and will enable interoperability, it doesn't mean they define the words the same way you do. Open is as open does, my friends. Keep your eyes open. That's my advice. Here's what EU Commissioner Neelie Kroes said back in June of 2005, after Microsoft promised to do right:

“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.

Eerie, huh? It sounds to me a lot like Governor Romney, when he announced recently his pleasure that Microsoft was making progress toward openness to qualify in the Commonwealth by submitting its XML format to Ecma.

Here's a fail-safe suggestion, to spare yourselves a lot of hassle. You've seen that the Ecma process is pretty much a rubber stamp on whatever Microsoft submits. Proprietary extensions, whatever. So why not demand that Microsoft merge its XML standard, once it is one, into the ODF standard that already exists before you will approve it? That way, Microsoft gets its backward compatibility, you get true openness, and Microsoft will be blocked from playing the kinds of games they've made internationally famous. Microsoft's Alan Yates, in his remarks at the last Senate hearing already reportedly said to you that this merge could and likely would happen someday. Why not set a date for them to really do it and refuse to accept their offered (Cf. Dan Bricklin's audio) standard until they do?

I know. It's brilliant. 5 cents please.

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