The company’s general counsel, Brad Smith, said the move was being made to address Competition Commission concerns that Microsoft was not providing adequate documentation to allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers.
The EC has been unhappy about the technical documentation provided by Microsoft for the communications protocols it was obligated to license to third parties by the EC after it was found guilty of breaking European Union competition law in March 2004.
To put this issue to rest we are announcing today that we are also licensing the Windows source code itself, so that anyone who licenses the [communications protocol] code will also have access to the Windows source code, said Smith.
He added that the Windows source code would be made available at no additional charge via the existing Work Group Server Protocol Program, WSPP, under a reference license that would not enable developers or competitors to copy or modify it, but said the code offered will cover all of the source code covered by the communications protocols covered by the Commission.
Microsoft will also license source code for its Windows desktop operating system in the US where it is impacted by communications protocols covered by its Microsoft Communications Protocol Program, MCPP, which was set up as a means of licensing Windows client protocols to third parties in August 2002 ahead of a court-mandated settlement with the DoJ and states.
Microsoft was threatened with daily fine of 2m euros ($2.4m) by the EC in December 2005 after a scathing review of Microsoft’s technical documentation work from the EC’s monitoring trustee, computer science expert Professor Neil Barrett.
The company was this week given an extended deadline of February 15 to respond to that threat and the EC’s Statement of Objections, and Smith said the company wants to move the discussion beyond what he called arcane arguments about documentation accuracy. I believe we’ve already provided the kind of information mandated by the European Commission. We’ve already done what we were obligated to do, he said, noting that the company has already provided 12,000 pages of documents and 500 hours of technical support to WSPP licensees.
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Given that the European Commission was unhappy with the documentation it seems clear that the source code is the documentation, he said. We’re not obligated to license this source code, but one thing is clear: if you need access to these specifications, you need access to this as source code. The source code is the ultimate documentation, it’s the documentation our own engineers used to implement these protocols.
Smith said that he hoped the EC would take into account Microsoft’s licensing of the Windows source when it makes a final decision on potential fines, which is not expected until after Microsoft has answered the Commission’s Statement of Objections and been granted an oral hearing.
I don’t believe that the imposition of any fine is warranted, but that’s not a decision we get to make, he said. I hope the Commission will make a decision in the context of this new offer.
In a statement, the European Commission stated that it would study carefully Microsoft’s announcement once it has received the full details and reiterated that it is looking forward to receiving Microsoft’s response to its Statement of Objections.
The Commission sent the Statement of Objections because of Microsoft’s failure to disclose complete and accurate interface documentation to allow non-Microsoft workgroup servers to achieve full interoperability with Windows PCs and servers, despite its obligation to do so, it said.
While maintaining that Microsoft continues to hold discussions in a professional manner with the Commission, Smith also indicated resentment towards the Commission and the fact that it made its Statement of Objections public.
When asked why the company was announcing details of the Windows source code licensing program to a roomful of journalists as opposed to the Commission, Smith said: The character of this discussion changed on December 21st with the publishing of a public statement of objections. It is now a public issue.
Smith also cast doubt on the findings of the EC’s monitoring trustee, who had described Microsoft documentation as totally unfit at this stage for its intended purpose. The trustee said he had undertaken a project to create an implementation of one of those protocols, said Smith, noting that Professor Barrett had given up after four days. Even our best engineers couldn’t accomplish that in only four days, he added.
One issue that will not be impacted by the licensing of the Windows source code is the impasse between Microsoft and the Competition Commission on whether Microsoft should be forced to share its communications source code with open source software vendors.
Microsoft believes that software developed by users of the company’s published interoperability information should not be able to license their software under an open source license, while European competition commissioner, Neelie Kroes is determined to enable open source software developers to take advantage of the remedy.
The two sides agreed to disagree, as Smith put it, in September 2005 and take the advice of the Court of First Instance. We have explained that we are comfortable with hybrid models but we are not comfortable with open source developers publishing to the world the specifications, said Smith. That has not changed. We are not open sourcing Windows.
Microsoft’s announcement came on the same day that the European Union’s Court of First Instance announced that Microsoft’s wider appeal against the Competition Commission’s antitrust remedies will be heard between April 24 and April 28 this year.
Smith stated that by licensing the Windows source code it hoped to move the discussion beyond documentation and onto the substance of the case at that appeal, maintaining that since March 2004 Microsoft’s case has got stronger.
As evidence of that, Smith pointed to Microsoft’s view that it was a mistake for the EC to demand that it release a version of Windows XP without Media Player. Now that we have created such a version we think it has been proven that consumers share that point of view, he said.
Smith also pointed to the success of Apple Computer Inc’s iPod MP3 player and iTunes music download service as evidence of continued innovation by rivals in the media market. Now that we have dates for a hearing we can move forward, he said.
Smith conceded that the Windows licensing move does not lay to rest all EC concerns relating to compliance with its antitrust remedies. The issues of protocol license pricing may still be a concern, he noted, while the EC may decide that licensing Windows code does not answer its documentation concerns.
The Commission indisputably plays the first decisive role as to whether our actions are sufficient, he said, following it up with a statement that suggests that the intended audience for the Windows licensing plan might not be the Commission, or even developers and competing vendors, but the Court of First Instance. It is of course true that we are all subject to a broader level of judicial rules, he said.
The fact that Microsoft is prepared to go beyond the requirements of the EC’s remedies while continuing its appeal against them certainly suggests that winning the appeal is now more a matter of principle than it is a matter of avoiding any remedies.
