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Reports on the Issues at the EU v. MS Hearings, Day 4
Thursday, April 27 2006 @ 09:48 PM EDT

I've been looking for sources for reports on the EU antitrust trial, so we don't have to depend solely on media accounts, helpful though they are. Here's the Washington Post's coverage, with a picture of Microsoft's General Counsel, Brad Smith. The BBC also reports the judge who will write the decision, Court of First Instance Judge John Cooke, reportedly asked why Microsoft should have to give up its "commercial information." The BBC quotes him as saying, "The information which forms interoperability is hugely valuable commercial information."

Um. Yes. But without interoperability information, EU Commission lawyer Anthony Whelan answered, "the 'super-dominant' position enjoyed by Microsoft prevents its rivals from innovating." I know Microsoft wouldn't wish to put a damper on innovation, that being so close to their hearts.

While the BBC reports on what Samba's Andrew Tridgell said at the hearing, "we are ten years behind," one phrase isn't enough for me to understand the issue, so to supplement, I found some press releases and other information from those attending the hearings that go into greater detail.

Samba and the Free Software Foundation Europe have put out a joint press release and the FSFE has a couple of others regarding the EU v. Microsoft hearings that I thought you'd be interested in reading:

If you only have time to read one of them, please choose the one about software patents. I reproduce them all for you, so they are all in one place, and I think it gives us a flavor for what's been happening. For even more, here's Georg Greve's blog, and he explains what he understood Microsoft's lawyer to be saying about software patents:

As Mr Forrester went on to explain, this documentation was then put into a kind of digital encyclopedia, which is sorted by a method that Microsoft holds a software patent on in both the European Union and the United States (from memory: us patent no 5,968,211). Without a software patent license, the documentation of their protocols cannot be used -- because Microsoft will sue anyone who dares to do so without license.

Software patents indeed played a central role in the closing remarks. Apparently it is Microsofts proof of innovation in this field to hold 4 granted and 3 applications for software patents in the EU, as well as 27 granted and 12 filed elsewhere. He also made another thing plainly clear: "I doubt that each of these could be engineered around!"

Translation: You may be able to force us to document what we do, but we will make sure you cannot read it without being potentially liable to software patent infringement. And even if you figure out how it works, we may try sueing you for software patent infringement in case you dare to interoperate with us without our permission.

For the other side of the coin, Microsoft has a section just for this issue, including excerpts from its opening statement at the hearing. Here are their archives. And finally, here's the page where they explain how servers work and how interoperability is "a reality".

Except when they have patents they assert or they want the EU Commission to stop making them enable interoperability.

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

Samba and FSFE: "Microsoft - obstacle to innovation in the digital society!"

Thu Apr 27 10:58:03 CEST 2006

"Businesses and public authorities have to pay prices that are kept high by Microsoft's refusal to share interoperability information with its competitors, as is common practice in the industry," explains Andrew Tridgell, president and founder of the Samba Team in his presentation on behalf of Free Software Foundation Europe in European Court today. Yesterday, Microsoft stated that it had spent 35 thousand person-hours on documenting that kind of information - and essentially failed.

Tridgell continues "Microsoft keeps claiming that it was asked to show its source code to competitors, which is absurd. We are exclusively interested in industry-standard interoperability information, such as Interface Definition Language (IDL) files commonly used for these kind of protocols. By our reverse-engineering, we were able to conclude that the total Active Directory description would amount to roughly 30.000 lines, of which the admittedly best experts of the Samba Team were able to reverse-engineer 13.000 over the course of six years. These IDL files easily fit on a single floppy disk and would go a long way towards providing the interoperability information requested."

"If Microsoft had shared that information when the Commission first requested it, customers could already find small embedded devices in stores for around 100 EUR that could offer the Active Directory functionality implemented in Samba - Microsoft's implementation of these protocols has hardware requirements ten times bigger. Think of a small box the size of a router, compared to an entire PC," Carlo Piana, FSFE'S lawyer on the case continues.

"The prevention of competition by Microsoft to leverage their desktop monopoly into other areas imposes a stark price on all professional computer users. Are we really to believe that Microsoft has no idea what is running on 90% of the computers around this planet so they have to call in their retired engineers to explain to them the working of Windows XP?" Georg Greve, president of FSFE summarises. "Enough is enough. Microsoft should stop playing games with the Commission and the Court and leave the field of innovation of obstacles to competition and freedom of choice!"


Microsoft: "Our software patents preclude interoperability"

Thu Apr 27 20:49:11 CEST 2006

Throughout the last two days in European Court, Microsoft tried to explain to the European Court and Commission its "Blue Bubble Theorem" about Active Directory Services (ADS) being surrounded by a Blue Bubble within which interoperability was impossible.

Carlo Piana, Free Software Foundation Europe's lawyer on the case explains: "The interventions made perfectly clear that the Blue Bubble only existed in the lawyers' pleadings. Meanwhile, Microsoft left no doubt as to the legal nature of that Bubble: a conglomerate of 46 patents that it claims it holds on ADS, whose main effect is to prevent interoperability and, eventually, competition."

So Microsoft maintains that without licenses to these software patents, which they would strongly object to and essentially referred to as "expropriation", forcing the interoperability information to be released might turn out to be irrelevant: Future competitors might find themselves involved in costly software patent litigation rather quickly.

"This proves effectively how software patents are fundamentally opposed to competiton, and thus harm economy and society. In the European fight about software patents, the proponents tried to make the claim software patents were about innovation. Today Microsoft once more demonstrated how they are indeed helping build and maintain illegal monopolies", Georg Greve, president of Free Software Foundation Europe (FSFE) said today and continued: "It reminded me of a 1991 quote of Bill Gates that summarises software patents rather effectively [1]:

'If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution ... is patent exchanges ... and patenting as much as we can... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.'"

FSFE referred to that quote in a feature article [2] earlier this week. Greve concludes: "Software patents are limited mini-monopolies on ideas that should allow to share ideas for the inspiration and benefit for society. In software they have the opposite effect and build mega-monopolies."

[1] http://www.lessig.org/blog/archives/001447.shtml
[2] http://www.fsfeurope.org/projects/ms-vs-eu/article-20060421.it.html


FSFE: "Microsoft locks in customers and pushes software patents to prevent competition."

Fri Apr 21 12:37:08 CEST 2006

"Microsoft's software locks in users and now the company is lobbying to get this lock-in effect legalised by software patents" is the basic message of a feature article Free Software Foundation Europe (FSFE) has published on its website [1] today.

The article - written by FSFE's vice president Jonas Öberg and FSFE's lawyer Carlo Piana explains: "Any Business - regardless whether it is a small startup, a global car manufacturer or a public authority - regularly runs a net consisting of GNU/Linux-, Unix- and Apple-based machines on the one hand and Windows on the other. Communication works fine within these two worlds. But not in between. There, co-operation lacks - not due to a law of nature but Microsoft does not want Windows to be understood by other operating systems."

The European Commission at present is trying to force the software giant to publish interoperability information that allows seamless communication between these two worlds. FSFE supports the Commission as third party since the original investigation in 2001. Monday, April 24th a five-day trial - the longest in European history - starts in Luxembourg.

The outcome of this suit will be seminal for the future information society: "Developers have been struggling to use reverse-engineering to replicate the behaviour of a Windows server, but this is a very cumbersome method and it has its limits: Without proper documentation of the protocols and specifications, any competitor will always lag behind the company that can introduce arbitrary changes of the interface language, as Microsoft has been doing," FSFE president Georg Greve explains. "Software patents could add a whole new dimension to this problem: Not only would any competitor find themselves in an extremely disadvantaged position in trying to compete with the monopoly. If patents are granted on these interfaces, implementing interoperability constitutes potential software patent infringement. Competition itself could de-facto become illegal."

So while Microsoft is still fighting to not publish specifications and protocols to enable equal grounds for competition, at the same time it lobbies hard to establish a legal basis for the software patents it has filed throughout the past years. Paradoxically, the same European Commission that fights so hard to even the grounds for competition in European Court supports this quest that threatens to make competition itself de-facto illegal.

The feature article points it out: "Even if the company is forced to publish its secret software protocols or leave key features out of Windows, a European software patent law might eventually let it stamp out competition from Free Software. Though two previous attempts at enacting a European software patent were defeated, Charlie McCreevy, Europe's commissioner for Internal Markets and Services could well resurrect the project this year."

Translations of this feature article can be found in Spanish, French, Italian and German early next week.

About the Free Software Foundation Europe

The Free Software Foundation Europe (FSF Europe) is a charitable non-governmental organisation dedicated to all aspects of Free Software in Europe. Access to software determines who may participate in a digital society. Therefore the freedoms to use, copy, modify and redistribute software - as described in the Free Software definition - allow equal participation in the information age. Creating awareness of these issues, securing Free Software politically and legally, and giving people freedom by supporting development of Free Software are central issues of the FSF Europe, which was founded in 2001 as the European sister organisation of the Free Software Foundation in the United States.

www.fsfeurope.org

[1] http://www.fsfeurope.org/projects/ms-vs-eu/article-20060421.en.html


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