Out-Law / Your Daily Need-To-Know
Microsoft has asked the European Court of First Instance to rule whether open source recipients of technical details that the European Commission is forcing the software giant to release can publish the protocols under open source licences, according to reports.
Microsoft is already appealing the Commission ruling that imposed the obligation in the first place.
The long-running battle between Microsoft and the Commission dates back to 1998 when the Commission began an investigation into alleged anti-competitive behaviour by the company.
Matters came to a head in March 2004, when the Commission found Microsoft guilty of breaking competition law, ruling that the software giant had leveraged its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players.
As a sanction, the Commission ordered Microsoft to disclose to competitors the interfaces required for their products to be able to "talk" with the ubiquitous Windows operating system.
Microsoft was also required to offer an alternative stripped-down version of Windows to PC manufacturers and when selling directly to end users and it was fined €497 million for abusing its market dominance in the EU.
Microsoft paid the fine into an escrow account in July 2004, where it will be held until its appeal against the ruling has been resolved – a process that could take up to five years to complete.
The company also asked for a delay in the imposition of sanctions, pending the resolution of the antitrust appeal, but the Court of First Instance rejected this in January. Despite this, and despite the threat of fines from the Commission, Microsoft did not provide details of how it planned to implement the remaining sanctions until June this year.
Stripped-down versions of Windows are now available for purchase in the EU although, according to reports, they are not selling well. Questions still remain as to how Microsoft will provide competitors with the specifications (but not the source code) for its client-to-server and server-to-server communications protocols.
The question of open source accessibility to the code has proved a sticking point in the negotiations.
Microsoft reckons that the software source code developed by recipients of the interoperability information should not be published under an open source licence.
However, the Commission considers that, if the Court of First Instance rules in favour of the Commission in Microsoft's appeal against the Commission's antitrust finding, this should be possible for the protocols that do not embody innovations.
Microsoft disagrees. According to reports, it fears that the open source issue will be subsumed in the overall context of the antitrust appeal. Last month it therefore filed another suit against the Commission to cover that specific point.
"This filing is the result of the agreement reached with the Commission in June to put this particular issue to the court for guidance and to avoid any further delay in the process," a Microsoft spokesman told Reuters.
"We are taking this step so the court can begin its review of this issue now, given its far-reaching implications for the protection of our intellectual property rights around the world," he added.
