Microsoft's source code offer is 'a poisoned apple'

Out-Law News | 26 Jan 2006 | 5:49 pm | 2 min. read

Microsoft yesterday surprised EU competition regulators by offering to licence all the Windows Server source code for the technologies highlighted in a 2004 EU Commission Decision that the software giant had breached competition rules.

But the Free Software Foundation Europe suspects foul play. It argues that Microsoft has not done what the Commission told it to do: to publish the protocols that allow others to write interoperable software and to re-establish competition.

"That does not appear to have happened, at least the terms under which the protocols are supposedly available are not clear," said FSFE President Georg Greve. "What they have done instead is publish source code, which they were not asked to do."

Microsoft's General Counsel, Brad Smith, sees it differently.

“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,” he said.

“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,” he added.

The announcement came shortly after the Commission had agreed to extend a deadline by which Microsoft was due to supply technical documentation that would allow rivals to successfully implement certain Windows Server communications protocols.

The documentation is required in fulfilment of a Commission Decision that Microsoft broke competition law 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.

The Commission imposed a fine, ordered Microsoft to offer an alternative stripped-down version of Windows, and ordered the firm to publish some of its interfaces, so that competitors could make their products interoperable with Windows.

Microsoft has paid the fine and produced the alternative Windows version, but has been slow to produce what the Commission sees as adequate interoperability information.

The company hopes that its offer to licence the relevant Windows Server source code will address concerns raised by the Commission in December.

“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 Smith. “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.”

But FSFE, a non-profit organisation dedicated to Free Software in Europe, fears Microsoft's move will cause additional troubles.

Carlo Piana, FSFE's lawyer, said: "This 'commitment' is poisoned – they do it in a way that worsens the situation for Free Software: because that source code is under Microsoft copyright, developers who have seen the source code cannot re-implement it in Free Software for fear of copyright violation."

He continued, "Microsoft might try to shut down competition by making claims of copyright infringement based on the argument that the developer 'could' have looked at the source code."

Georg Greve added: "How exactly are developers supposed to write interoperable software without looking at the source code if the specifications are not available? If you eat from that apple, you find yourself poisoned by their copyright."

Greve said Microsoft "acted like a robber that, when asked to please put away the gun, tosses you a grenade."

The EU Commission said yesterday that it would study the offer carefully, but is still expecting a reply to its objections by 15th February.