EU Court's Microsoft Anti-Competion Ruling Has OSS Sidelight - Open Source Software Up the Stack

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September 17, 2007
EU Court's Microsoft Anti-Competion Ruling Has OSS Sidelight

A first-level European Union (EU) court today upheld the EU Competition Commission’s 2004 findings that said that Microsoft had to take steps to increase interoperability between its Windows-based client operating software and other providers’ server operating software (e.g., Sun’s Solaris before it was OpenSolaris, Novell’s directory services circa 2002).

There are other issues about worldwide marketplace dynamics and such in the court finding that will get a lot of coverage in the wider media. The now responsible EU Competitive Commissioner (not involved in 2004) says,

“This is an important precedent, not just for this particular product on this particular market.”

You can see more about my IT investment research opinion at Research 2.0 (link on right of this page).

But there is a side issue that relates to open source software (OSS). I am not sure I am expressing the legalities correctly but I think of the OSS side issue this way:
-- The EU said in 2004 that Microsoft had to release information about its communications protocols and make them easy for others to work with
-- Microsoft felt it has always done that via TechEd and Windows Solutions Developer programs and the like (in fact that’s how Microsoft answered the original Sun 1998 complaint)
-- But reasonable people can disagree. Microsoft asked the EU how it could be more cooperative.
-- In 2005, after a year or more of studying the issue, the EU said the way for Microsoft to meet its demands was for Microsoft to release reams of related documentation
-- Microsoft in early 2006 said OK, we’ll even go a step further. We’ll license the protocol code for XYZ, just as IBM and others license their technologies, and as Microsoft does for other of its intellectual property (IP)
-- In 2007, the EU said no, the protocols have no market value so you, Microsoft, have to give them away for free (in the OSS sense of the word as well as in “at no cost”).
-- The EU had not apparently previously said that Microsoft even had to provide the code, just documentation

First, forget the unbelievable slow pace at which the EU works, which means both the technology and the market have moved on by the time the EU makes a decision. For a little historical context, remember this whole thing started in 1998 a few months after Google was founded. Most notably of course, the original complainants Novell and Sun have long ago settled with Microsoft and are already doing all the things with Microsoft that the EU said it would force Microsoft to do with competitors.

The real issue is that some number of developers have already determined that the protocols do have a market value (because they paid the XYZ to license them, which is the definition of a market). Should EU bureaucrats be able to decide what a person’s or company’s IP is worth?

Of course, the free software wing of the OSS movement thinks just that. The Free Software Foundation (FSF) filed as a friend of the EU Competition Commission (or whatever an amicus brief is called in the EU) and it thinks it got what it wanted out of the court’s ruling.

But the press release about the ruling (sorry the ruling is 250 pages long and I haven’t read it yet) specifically says:

“The Court notes that the Commission emphasised that Microsoft’s abusive refusal to supply concerned only the specifications of certain protocols and not the source code and that it was not its intention to order Microsoft to disclose its source code to its competitors.”

So based on the press release (something I always argue against doing, I know) the EU court ruling does not seem to agree with FSF and Red Hat, which released an “amicus press release” on the matter.

The relevant EU commissioner also said in a statement,

“In this case, the Court has confirmed that Microsoft has to make available indispensable interoperability information on reasonable and non-discriminatory terms to allow competitors to make workgroup server products that work properly and on an equal footing with Microsoft products.”

The commissioner apparently believes that “reasonable” equals “free.” I doubt if Microsoft will see it that way so I also doubt if this is over yet.