EU Microsoft ruling shuns open source, critics say

The European Commission's requirement that Microsoft Corp. license certain of its communication protocols will do little for competition in the workgroup server market if a draft license proposed by Microsoft is accepted, open source software advocates say.

Concluding a five-year antitrust investigation last March, the Commission ruled that Microsoft had illegally used its near-monopoly in the PC operating system market to gain share in the work group server and desktop media players markets. The Commission ordered the company to pay a fine of €497 million (US$645 million); to distribute a version of its Windows operating system without media player software to give competitors more of a chance; and to license its workgroup server protocols to competitors in order to break the ties between its desktop dominance and the server market.

The effectiveness of the first two remedies has been questioned: the fine amounts to less than one-fifth of Microsoft's profit for the last quarter, while most of the largest PC manufacturers have said they have no plans to remove Windows Media Player from PCs they sell in Europe.

The third remedy, too, could turn out to be toothless if Microsoft pursues its present licensing course, according to representatives of the Free Software Foundation Europe (FSFE), a group which protects the interests of the open source software community.

An open source project, Samba, is widely seen as one of the most viable alternatives to Microsoft's own file- and print-serving software for workgroup servers. Samba is an open-source implementation of Microsoft's SMB (Server Message Block) and CIFS (Common Internet File System) protocols that runs on non-Windows servers and works with Windows desktop machines. It is released under the General Public License (GPL).

Yet a draft of the protocol license seen by the FSFE expressly prevents Samba and other open source projects from benefitting from the Commission's remedy, FSFE representatives said.

"The settlement had the goal of re-establishing competition," said Joachim Jakobs, spokesman for the FSFE. However, "Samba is the only remaining competitor."

Samba or any other free software cannot access Microsoft's protocol licensing scheme because of the conditions it poses for licensees, according to Carlo Piana, a specialist in IT law at Studio Legale Tamos Piana and Partners in Milan, Italy, and lawyer for the FSFE.

"The terms provide for certain conditions which are unacceptable or impossible for free software to comply with," Piana said. These include per-copy licensing. "Free software cannot control the number of copies that are made," Piana said.

Jakobs sees this as a deliberate attempt by Microsoft to beat the Commission. "By excluding the GPL, they simply try to bypass the European Commission decision," he said. "They have to refrain from per-seat licensing."

So far, the Samba project has avoided having to license anything from Microsoft: Its lead developer, Andrew Tridgell, reverse-engineered the SMB protocol using a network packet sniffer and developed his own implementation.

However, updating that work to handle newer versions of Microsoft's protocols is a far harder task, according to Piana.

"What took six months with the previous protocols would now take two years or more, because Microsoft has designed the protocols in a difficult way, an unnecessarily difficult way," Piana said. That would be legal for any other company, but Microsoft, in its near-monopoly position, has a special obligation not to raise barriers to trade, he said.

"We have already spoken to the Commission. We have made clear this sort of license would be unacceptable," Piana said.

Microsoft, for its part, said that when it licenses its protocols, the terms are fair to everyone. "Whoever wants to take this license (for the workgroup server protocols), the terms stay the same for all," said Dirk Delmartino, a spokesman for Microsoft in Brussels.

Microsoft has submitted a draft of the protocol license to the Commission, which is still studying it, another Microsoft spokesman said.

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