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MS Offers to License Some Code for a Fee in Lieu of Documentation
Wednesday, January 25 2006 @ 11:35 AM EST

A leopard can't change its spots. So it is we find Microsoft announcing in a press release cunningly titled "Microsoft Goes Beyond EU Decision by Offering Windows Source Code" that they will license "some" of its code, specifically "all the Windows Server source code for the technologies covered by the European Commission’s Decision of March 2004", instead of complying with the EU Commission's requirement that it provide documentation. The Wall St. Journal [sub req'd] reports:
Under the EU ruling, Mr. Smith said the company wasn't obliged to release the code, but Microsoft determined "that the source code is the ultimate documentation, it is the DNA." In addition, he said the company was offering 500 hours of "free technical support" to help software developers decipher the code.

If Microsoft, in 12,000 pages, couldn't be comprehensible in describing its own code, will 500 hours of tech support and a pile of their code they can't describe themselves be clearer?

The Eu Commission required the documentation for a reason, as pointed out by Reuters:

In Europe, the Commission has ordered Microsoft to license its protocols -- rules of the road -- to help rivals' server software work with other servers and with its Windows operating system, because it competed unfairly in the late 1990s.

In each case, competitors need instruction to use the software.

Let me get this straight. The EU Commission orders Microsoft to hand over clear documentation. They hand over documentation, but it's incomprehensible, so no one can follow it. The EU Commission threatens to fine Microsoft $2.4 million every day until it complies, so instead of complying, Microsoft throws some code on the table and says, figure it out yourself. No documentation. For a fee. Have I got that right?

You'll recall that when the EU Commission announced they had chosen Neil Barrett, from a list provided by Microsoft, to be the Monitoring Trustee, it said this is what Barrett was to monitor, in part:

For example, as regards the interoperability remedy, where Microsoft is required to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers, his expertise might be used in assessing whether Microsoft’s protocol disclosures are complete and accurate, and whether the terms under which Microsoft makes the protocol specifications available are reasonable and non-discriminatory.

Microsoft turned in 12,000 incomprehensible pages instead, and now, when it wasn't acceptable to the EU Commission, they propose offering the code itself and 500 hours of tech support. Nice "plea bargain". It will be interesting to see if the EU Commission accepts the offer. All I can think of is whether there will be SCO-like infringement lawsuits down the road against folks who looked at the code and then write code Microsoft might claim they copied from their licensed code. Please, someone else cover those lawsuits, if they happen. And if you write FOSS, talk to your lawyer before you so much as sniff at this code.

[ UPDATE: The Free Software Foundation Europe is now warning about the code as well, reported by Heise:

Joachim Jacobs, spokesperson for the Free Software Foundation Europe writes in his first reaction that the EUC has demanded that the protocols should be accessible. However, MS wants to license the code. Nobody has asked for that, and if it happens, developers can be vulnerable to infringing copyright because they might have had access to the source code.

Heise also tells us this:

The spokesperson for EU-commisioner Neelie Kroes said that Microsoft until now has insufficiently complied with the requirement to open the technical information for the server protocols and noted that wether Microsoft complies with the EU-requirements is decided by the Commission, not by Microsoft.

Translation by a Groklaw's ruurd. Thank you.]

Here's what Microsoft had to say for itself, in its press release:

Today, Microsoft General Counsel Brad Smith announced Microsoft’s decision to license all the Windows Server source code for the technologies covered by the European Commission’s Decision of March 2004. The company is making this voluntary move in order to address categorically all of the issues raised by the Commission’s December 22, 2005 Statement of Objections. That document asserted that Microsoft’s prior technical documentation provided insufficient information to enable licensees to implement successfully certain Windows Server communications protocols.

"Today we are putting our most valuable intellectual property on the table so we can put technical compliance issues to rest and move forward with a serious discussion about the substance of this case," said Brad Smith, Microsoft Senior Vice President and General Counsel. "The Windows source code is the ultimate documentation of Windows Server technologies. With this step our goal is to resolve all questions about the sufficiency of our technical documentation."

With today's announcement, Microsoft is going far beyond the European Commission's March 2004 decision and its legal obligations to provide companies with the technical specifications of its proprietary communications protocols. A reference license to the Windows Server source code will provide software developers the most precise and authoritative description possible of the Windows protocol technologies. With it, software developers will be entitled to view the Windows source code in order to better understand how to develop products that interoperate with Windows, but not to copy Microsoft's source code.

"We have now come to the conclusion that the only way to be certain of satisfying the Commission's demands is to go beyond the 2004 Decision and offer a license to the source code of the Windows server operating system," said Smith. "While we are confident that we are presently in full compliance with the Decision we wish to dispel any notion that Microsoft's technical documents are insufficient."

For server software developers who take a license under this program, Microsoft previously had created more than twelve thousand pages of technical documentation covering specifications for the communications protocols covered by the 2004 Decision as well additional technology going beyond those protocols. In addition, Microsoft previously offered voluntarily to provide up to five hundred hours of free technical support from experienced Microsoft professionals who can answer any questions licensees might have. With today's announcement Microsoft has supplemented these resources with a new license for all of the Windows Server source code that implements all of the communications protocols covered by the 2004 Decision.

Microsoft has a similar protocol licensing program that was established in the United States pursuant to a consent decree there, covering certain protocols in the Windows desktop operating system. More than 20 companies have taken licenses to Microsoft's protocols under that program and many are shipping products incorporating such protocols. To continue to foster consistency between both licensing programs, Microsoft has decided to make available for the desktop protocols the same reference license for source code it is offering for server protocols, and the company will provide competition authorities in the United States with information so they can consider the matter.

The merits of the 2004 Decision are being reviewed by the European Court of First Instance. While Microsoft contests the merits of the 2004 Decision through that judicial process, today's announcement underscores the company's resolve to satisfy the Commission's compliance demands. In addition, Microsoft will continue to move forward to prepare its response to the December Statement of Objections, which is now due on 15 February.


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