decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
EU Commission Invites Comments on the Microsoft Deal - Here's Where to Send Them - Updated
Saturday, October 10 2009 @ 01:04 PM EDT

The official notice of the new draft deal between Microsoft and the EU Commission has now been posted to the EC website and published [PDF] in the Official Journal of the European Union, and it invites comments, giving all the addresses, email, fax and regular mail, where interested parties can submit their observations within a month of the date of the announcement. The date of the announcement was October 7. Comments must *reach* the EU Commission within a month, not be postmarked by then.

Tempus fugit.

It's the top item, dated 9.10.2009, here, item C 242. If you have company secrets to preserve there are directions given on submitting both a confidential and a public version. Here are the directions on where to send your observations:

4. INVITATION TO MAKE COMMENTS

(13)The Commission intends, subject to market testing, to adopt a decision under Article 9(1) of Regulation (EC) No. 1/2003 declaring the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding. If there are substantial changes to the commitments a new market test will be launched.

(14) In accordance with Article 27(4) of Regulation (EC) No. 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must read the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which commercial secrets and other confidential passages are deleted and are replaced as required by a non-confidential summary or by the words 'commercial secrete' or 'confidential'. Legitimated requests will be respected.

(15) Observations can be sent to the Commission under reference number COMP/C-3/39,530 - Microsoft (Tying) either by email (COMP-GREFFE-ANTITRUST@ec.europa.eu ), by fax +32 22950128 or by post, to the following address:

Directorate-General for Competition
Antitrust Registry
1049 Bruxelles/Brussel
BELGIQUE/BELGIE

[Update: Note that comments about interoperability/standards, as opposed to the browser deal, are instead to be sent here:
Comments on Microsoft's proposed interoperability undertaking can be sent directly to COMP-GREFFE-ANTITRUST@ec.europa.eu
On tying, you send to: COMP-ENQUIRY-WEB-TYING@ec.europa.eu - End update.]

Here are all the documents that Microsoft has posted about the deals. The browser deal documents are posted as PDF. The interoperability documents, though, are posted in Microsoft's proprietary .doc format. Microsoft's subtle little joke on the EU Commission, I gather, which seems to have flown right over the Commission's head.

You'll find some further information to clarify what the deal is about in this interview with ECIS's Thomas Vinje and Ashwin van Rooijen by Sean Daly, and all the documents that make up the agreements are available from this page about the announcement.

Once again, here's the FSFE statement. And Glyn Moody raises some questions about the GPL here:

The key part of Microsoft's “Interoperability Undertaking”[.doc] is the following section:
Access to and use of the Interoperability Information shall be subject to no more than a nominal upfront fee and licensing terms which are compatible with Open Source Licenses. This is without prejudice to Microsoft’s right to make the use of Microsoft’s patented technology embodied in the Interoperability Information subject to a separate patent license.

Microsoft commits to duly inform interested undertakings about the relevant patent claims and only to assert those patents against undertakings of which these undertakings have been put on notice in accordance with the conditions set out in Section D. below.

Now, the phrase “compatible with Open Source Licenses” is pretty vague. Does that include the GNU GPL, for instance? If it doesn't, it's a weak undertaking, but if it does, it could be significant.
How can it include the GPL if there is a patent license that you have to pay royalties for? Worse, there is this requirement, highlighted by van Rooijen in the Daly interview:
Ashwin van Rooijen: Yeah. Well, I think the open source issue is important. In many markets, Microsoft faces meaningful competition -- any meaningful competition -- only from open source developers. So it is very important that they can actually create interoperable products. And the current template patent license that was part of the undertaking -- I believe it was Annex C of the undertaking -- is clearly not compatible with open source licensing schemes and especially not with the GPL. It requires, for example, that developers that take a license, that take a patent license, notify all the other developers that they distribute the software to of the various patents which Microsoft claims to have in its software. And obviously, that's an obligation which cannot be reconciled with the GPL. And there are other provisions as well which I think would need to be resolved.
Here's the part of the Template Interoperability Patent License [.doc] that I think makes it impossible for the GPL to participate:
2.License

2.1. License Grant. Microsoft, on behalf of itself and its Affiliates, grants Licensee a worldwide, non-exclusive, personal license under the Necessary Claims to make, use, and Provide Implementations. This license grant is conditioned on Licensee’s payment of Royalties (including prepaid royalties) and Licensee’s and its Providers’ compliance with Section 2.2. Licensee may only Provide Implementations as part of products or services Provided under a Licensee Brand (“Product”); notwithstanding the foregoing, this Agreement does not grant any licenses under any patents or patent applications with respect to the portions of the Product that do not constitute the Implementation.

2.2. Notice. Licensee will ensure that all recipients of source code copies of Products agree to and are bound to the following terms as part of their agreement covering their use of the Product: “This source code may be covered by patents owned by Microsoft Corporation. You are not licensed under any Microsoft patents to distribute this code in any form unless you have obtained an appropriate license from Microsoft. The terms and conditions of such license may be obtained by contacting Microsoft at protocol@microsoft.com.”

In the last antitrust action against Microsoft, SAMBA didn't care about the Microsoft patent license, because it realized it didn't need any of Microsoft's patents to interoperate. But that was sui generis. This may have confused the EU Commission into thinking it never matters. It does. It leaves Linux, Microsoft's primary competitor, out of the deal.

And the price to interoperate with Microsoft, according to that document and the proposed interoperability agreement [.doc] is $10,000, and that is the minimum, not the maximum:

3.Royalties

3.1. Prepaid Royalties. Licensee will pay Microsoft $10,000 in non-refundable prepaid royalties, to be credited against Royalties.

3.2. Royalties. Licensee will pay Royalties for each Product containing an Implementation consisting of the Net Revenues for that Product multiplied by the Royalty Rate set forth below, provided that the Royalty per User of that Product or Provided Copy of that Product will not be less than the Minimum Royalty set forth below for the applicable Product Type:

Then there is a chart, breaking it down further. Now, $10,000 is nothing to Microsoft. A large, supported project like SAMBA could probably swing it. How about some university student somewhere? You don't think that matters? How about a university student named Linus Torvalds, for example? Think *that* matters? Do you want a deal that excludes the next Linus Torvalds? Where will he get $10,000? This single clause exiles any innovation from the next Linus, because he won't be able to afford to pay the toll to interoperate, thus excluding him from the general market.

From the FSFE statement:

Karsten Gerloff, FSFE's President, says: "In its current form, Microsoft's proposal has many loopholes for the convicted monopolist to slip through. The lack of a monitoring system leaves Free Software projects out in the cold. There is no clear commitment from Microsoft to adhere to web standards in the future, nor to end the company's habit of adding proprietary extensions to standards."

In order to fend off another possible investigation by the European Commission, Microsoft is also offering a set of promises to let rival programs work with some of its desktop applications such as Outlook and Sharepoint. Yet Free Software projects, which are often the strongest competitors to the company's offerings, will not be able to use the patent licence proposed by Microsoft.

FSFE's legal counsel Carlo Piana says: "We are disappointed that major issues for Free Software and other small, innovative players remain unaddressed. Private enforcement is out of reach for them. This is a missed opportunity to break new ground in antitrust enforcement."

Private enforcement means that the agreement says if Microsoft doesn't live up to its promises regarding interoperability, thin though they are, you can sue them yourself. Can that university student sue Microsoft personally and win? You've watched the legal system being gamed to stretch things out as long as possible. And you have seen how costly it can be. Think that might work for a corporation to use against an individual with limited money to spend on litigation? Of course. They just wear you out until you give up.

Here's a snip from GPLv2 to show you the conflict:

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
That is from the introduction. And here's the clause it references:
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.

It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.

See the conflict right there? And clause 4 begins by pointing out that if you can't follow the license, your rights under the license terminate:
You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
Full compliance means no royalties for patents.

Here's the language in GPLv3, the license SAMBA and many other projects now use:

Finally, every program is threatened constantly by software patents. States should not allow patents to restrict development and use of software on general-purpose computers, but in those that do, we wish to avoid the special danger that patents applied to a free program could make it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render the program non-free....

8. Termination.

You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11)....

11. Patents.

A "contributor" is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based. The work thus licensed is called the contributor's "contributor version".

A contributor's "essential patent claims" are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, "control" includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

In the following three paragraphs, a "patent license" is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement). To "grant" such a patent license to a party means to make such an agreement or commitment not to enforce a patent against the party.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

A patent license is "discriminatory" if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law. 12. No Surrender of Others' Freedom.

If conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot convey a covered work so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not convey it at all. For example, if you agree to terms that obligate you to collect a royalty for further conveying from those to whom you convey the Program, the only way you could satisfy both those terms and this License would be to refrain entirely from conveying the Program.

Do Microsoft's lawyers not know about these GPL terms? I think we can assume they must know, particularly after the reaction to the Novell patent deal. So, ask yourself this: is Microsoft serious about interoperability with *all* its competition? If not, why is such a deal -- which specifically and apparently deliberately exiles all GPL'd software from being able to interoperate with Microsoft -- acceptable to the EU Commission? An interoperability deal that excludes the monopoly's number one competition? Is this a joke? Or 1984-style Newspeak? An interoperability agreement that prevents interoperability. As I read it, it's just a pretend interoperability deal, one that actually guarantees that GPL'd software -- which is the majority of all FOSS software projects, and which includes Linux -- will not be able to interoperate with Microsoft. To me, this is Microsoft still trying to kill off the GPL, a long-time goal of that company. But why would the EU Commission want that?

By the way, have any of Microsoft's software patents been court-validated yet? Not that I know of, so on what basis does the EU Commission assume their validity and allow payments prior to any such validation? And may I ask -- since software as such can't be patented, or so I'm told, in Europe -- why would the EU Commission allow, nay require, patent license fees on software patents in Europe?

I note this EU Commission notice implies you are interested in commenting only on the browser issue, not the interoperability/standards agreement. That is the only agreement that is being given a market test, I guess, so that may be the explanation. Or there may be a second official notice about the second agreement about standards, or maybe there is total abdication and they just don't care about that at all. Well, I hope not that.

For sure you can write to the above addresses about the browser issue. I'm trying to find out the proper address for the interoperability/standards draft agreement, if one exists. So if that is the matter that you'd like to comment on, you might wait a day or so, until I can check, or contact the EU Commission yourself and inquire before you send your observations, so you don't waste effort and have your comments end up gathering dust in the wrong inbox or on the wrong desk. [Note updated information: send interoperability/standards comments to COMP-GREFFE-ANTITRUST@ec.europa.eu.]

Personally, I'd probably send a cc to ECIS or FSFE or any party already directly involved -- other than Microsoft -- and in position to send official observations, just in case. And I'd put as a subject line: Microsoft (Interoperability).

I note that you can turn the IE browser on and off, according to Annex A [PDF], but how many will do so if greeted by this information:

A user can turn Internet Explorer off by unchecking the box. (OEMs will have software tools to do so.) If Internet Explorer is turned off, it is not available for use. As implemented in Windows 7, this means that certain files that are essential to the operation of Internet Explorer (without which it cannot run) are not loaded by the operating system and thus not available to users on the computer.

These files, which include the main Internet Explorer executable, the browser frame window and associated menus, are not available to other programs (or other parts of Windows) either, and thus they cannot be called upon in any scenario. This means that Internet Explorer cannot be launched for any reason, even if no other browser is available on the system. Internet Explorer can be launched only if the user subsequently decides to turn it back on (by re-checking the appropriate box, as shown above).

The Internet Explorer files referred to above are removed to a separate storage location as a backup copy so that a user can turn Internet Explorer back on, if the user wishes to do so. If the user turns Internet Explorer on, the files are restored to the operating system.

When Internet Explorer is turned off using this feature there is minimal impact on third-part programs (and other parts of Windows itself) that call upon Internet Explorer APIs. This is because the Internet Explorer files that provide functionality to third parties and other parts of Windows through APIs are left intact when Internet Explorer is turned off.

"Minimal impact". That means some impact. So other software won't work precisely perfectly if you turn IE off. Sort of like WordPerfect, I gather, an issue which is still being litigated all these years later, speaking of private enforcement.

Update: Neelie Kroes's term has been extended until January.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )