Could the Microsoft saga with the EU finally be at an end? I would think the company hopes so, as it just announced a unilateral offering of Windows Server source code access for all the technologies covered by the European Commission's March 2004 decision. Last month, the Commission raised objections to Microsoft's compliance, but in doing so seemed to change standards of compliance. A Microsoft press release suggests MS believes this latest step clearly goes beyond anything the Commission has requested and should put an end to it:

"Today we are putting our most valuable intellectual property on the table so we can put technical compliance issues to rest and move forward with a serious discussion about the substance of this case," said Brad Smith, Microsoft Senior Vice President and General Counsel. "The Windows source code is the ultimate documentation of Windows Server technologies. With this step our goal is to resolve all questions about the sufficiency of our technical documentation."

Logic would suggest this years-long soap opera will end, but logic hasn't been a consistent element in this proceeding. And I write this knowing the Commission isn't much interested in what a "mere think tank" considers relevant.

One would also think this would quiet those in the FOSS movement who complained that they should get free access to MS source code. But perhaps they'll still have cause to complain, as MS isn't converting its code to open source, merely offering the same license it does to anyone seeking to review the code in order to improve interoperability.

MS says this is hardly the first step its taken:

For server software developers who take a license under this program, Microsoft previously had created more than twelve thousand pages of technical documentation covering specifications for the communications protocols covered by the 2004 Decision as well additional technology going beyond those protocols. In addition, Microsoft previously offered voluntarily to provide up to five hundred hours of free technical support from experienced Microsoft professionals who can answer any questions licensees might have.

MS still has a formal reply due to the Commission on 15 Feb. There's no guarantee we're closer to closure. But it is becoming increasingly clear what a Kabuki theater the Commission's actions are here. In a recent blog post, Jim quoted Dalibar Rohac of The Centre for the New Europe as saying:

The Microsoft case appears to me not so much as a result of a flawed concept competition, as it is usual in the area of antitrust policies, but more as a result of – yes I dare say it – hatred of all things American. Even though no one from the EC would ever admit it, the never-ending bullying of the Microsoft Company has a bitter taste of anti-Americanism.

I asked a couple of Europeans about that at our conference in Prague last week (no, none of them worked for Microsoft). This opinion was, sadly, resoundingly endorsed. "If Microsoft were a European company," one European told me, "they'd be cause for celebration, not retribution."

The EU is building its own GPS satellite system so it won't have to rely on ours (so the globe will now be covered twice). European governments are talking about developing a search engine to compete with Google. When a history of government sponsorship of enterprise and a lack of respect for patents leaves the continent with only one major software maker, and every bureaucrat's computer runs Windows, it's not hard to see how a resentment can form that isn't based on rational thought but rather on reflexive anti-Americanism and defensive patriotism. This latest move by MS is not unlike the child pointing out the emperor isn't clothed. We'll see if complete exposure is enough to shame the Commission into acting responsibly toward its own citizens and moving on from this morass.

posted by Patrick Ross @ 11:21 AM | Antitrust, International, Patents, Software

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