17 September 2007

EU: 2, Microsoft, 1

What's most interesting about the European Court of First Instance upholding the European Commission's main actions against Microsoft (striking down one) for abusing its dominant position is the depth of technological understanding it displays. For example, here are the comments on the interoperability issues that are problematic for Samba:

First, the Court confirms that the necessary degree of interoperability required by the Commission is well founded and that there is no inconsistency between that degree of interoperability and the remedy imposed by the Commission.

The Court then observes that the Commission defined interoperability information as a detailed technical description of certain rules of interconnection and interaction that can be used within Windows work group networks to deliver work group services. 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.

The Court also considers that the aim pursued by the Commission is to remove the obstacle for Microsoft’s competitors represented by the insufficient degree of interoperability with the Windows domain architecture, in order to enable those competitors to offer work group server operating systems differing from Microsoft’s on important parameters. In that connection, the Court rejects Microsoft’s claims that the degree of interoperability required by the Commission is intended in reality to enable competing work group server operating systems to function in every respect like a Windows system and, accordingly, to enable Microsoft’s competitors to clone or reproduce its products.

As to the question of the intellectual property rights covering the communication protocols or the specifications, the Court considers that there is no need to adjudicate on that question in order to determine the case. It observes that in adopting the decision the Commission proceeded on the presumption that Microsoft could rely on such rights or, in other words, it considered that it was possible that the refusal at issue was a refusal to grant a licence to a third parties, thus opting for the solution which, according to the case-law, was the most favourable to Microsoft.

As regards the refusal to supply the interoperability information, the Court recalls that, according to the case-law, although undertakings are, as a rule, free to choose their business partners, in certain circumstances a refusal to supply on the part of a dominant undertaking may constitute an abuse of a dominant position. Before a refusal by the holder of an intellectual property right to license a third party to use a product can be characterised as an abuse of a dominant position, three conditions must be satisfied: the refusal must relate to a product or service indispensable to the exercise of an activity on a neighbouring market; the refusal must be of such a kind as to exclude any effective competition on that market; and the refusal must prevent the appearance of a new product for which there is potential consumer demand. Provided that such circumstances are satisfied, the refusal to grant a licence may constitute an abuse of a dominant position unless it is objectively justified.

It's impressive that m'luds grok the difference between the protocols and Microsoft's code that implements them. I half expected them to get their wigs in a twist and buy Microsoft's line that handing over the protocols was the same as handing over the code. Happily, the judges saw through this attempt at muddying the waters, and came out with a well-argued decision that looks likely to withstand Microsoft's inevitable appeal.

6 comments:

Dennis Byron said...

Actually what is most interesting is that what the court ruling said and what the commission has said seem to differ. Despite the quote from the 9/17/2007 Court of First Instance ruling above, the EU Competition Commissioner said in 2005 (according to multiple press reports at the time): "The commission remains committed to ensuring that in due course it will become possible to use certain interoperability information from Microsoft in software products distributed under an open source license."

I do not see how that could happen without Microsoft open sourcing the code in the way we all understand that term (rules 0-4 or 1-10 depending on which end of the OSS spectrum you are on).

You don't say but I assume this is why these words are problematic for Samba?? Can anyone educate me on this?

glyn moody said...

Well, I think it comes down to the difference between the protocols and the code that implements them. Protocols are really just a set of rules, and you can implement them in different ways.

Indeed, this was precisely how Samba was written: the rules of Microsoft's networking were worked out laboriously by watching how they worked, and then new code was written to implement them.

The problem was working out all the details of the latest protocols. If Microsoft gives out those details, as they now must, the implementation will be simpler. But it won't require any access to Microsoft's own code.

Dennis said...

Thanks, Glynn. Maybe I'm just overparsing the EUs 2005 language.
-- Why did the EU feel the need to say that in 2005 since all kinds of applications, database and "workgroup server" software suppliers have been interoperating with Windows client for 20 years? They have not all been doing it by reverse engineering.
-- Why was/is it more or less possible for a piece of code licensed under an OSS license than under a traditional license? What is problematic for Samba?

Apparently Red Hat has changed its mind about its original exuberance given its second press release on the subject today (http://investors.redhat.com/phoenix.zhtml?c=67156&p=irol-newsArticle&ID=1052584&highlight=)

glyn moody said...

Unfortunately, I don't have any special insight into what was passing through the EU in 2005 (luckily....), but I think I can answer your second question.

If ordinary licences were adopted, they would just need to be RAND: Reasonable And Non-Discriminating. But a licence that demanded even a small, nominal sum - say one Euro - would be infeasible for open source software, since projects have no budgets, and it would be impossible to distribute copies.

So the only way open source can actually use the protocols is if they are licensed under an open source licence - that is, one that makes them freely available.

Alan said...

If you had seen Andrew Tridgells explanation of the difference between protocols and code in the court I don't think you would be suprised. I think anyone would have followed it, let alone a bunch of non-technical but *very* bright judges.

glyn moody said...

Yes, that's a good point - I'd forgotten that.