February 15, 2006
Microsoft: last chance to comply with European commission anti-trust ruling
Statement by Simon Awde
Chairman, ECIS

Brussels, 15 February : ECIS today confirmed its full support for the European Commission’s determination to compel Microsoft to comply with its Decision of March 2004.

"The record to date is very clear. So far, Microsoft has left the Commission no choice but to pursue the prescribed process for non-compliance," said Simon Awde, ECIS Chairman. "We have not yet learned the detail of Microsoft’s final submission today, so at this point its 11th-hour announcement serves only to confirm that two years after the Commission Decision Microsoft still has not satisfied its disclosure requirements."

"ECIS certainly hopes that Microsoft has used this last chance to make full server interoperability information available on fair terms for both proprietary software developers and the open source community. That is the only way to ensure competition on the merits in the European server software market, which is in everybody’s interest."

Microsoft compliance : the record to date
Almost two years have now elapsed since the Commission Decision of March 2004, ordering Microsoft to provide the information necessary for the server software of other vendors to interoperate with the dominant Windows PC operating system as well as Microsoft’s own server software does. This information will ensure competition on the merits in the workgroup server software market.

Microsoft spent the remainder of 2004 trying to convince the European Court of First Instance to suspend the Commission’s order. That effort failed in December of that year, when the Court rejected Microsoft’s arguments.

In December 2005 – one full year after the Court’s rejection - Prof. Neil Barrett, the expert Trustee appointed by the Commission from a list proposed by Microsoft to oversee their compliance, still found Microsoft’s technical response to the inter-operability requirement to be "mainly useless".

Prof. Barrett’s assessment left EU Competition Commissioner Neelie Kroes no choice but to serve Microsoft with a formal Statement of Objections (S.O.) for non-compliance, setting a deadline of today, February 15th for final submission of the required information.

Microsoft’s response so far to that S.O. has been to seek media attention, notably through public criticism of Commission procedures and a media-directed but largely irrelevant offer to provide Windows source code.

Excerpts from Prof. Barrett’s assessment of previous Microsoft submissions
- "Any programmer or programming team seeking to use the Technical
Documentation for a real development exercise would be wholly and completely unable to proceed on the basis of the documentation. The Technical Documentation is therefore totally unfit at this stage for its intended purpose."

- "The documentation appears to be fundamentally flawed in its conception, and in its level of explanation and detail... Overall, the process of using the documentation is an absolutely frustrating, time-consuming and ultimately fruitless task. The documentation needs quite drastic overhaul before it could be considered workable."

- "The valuable content appears to be very limited and the information added is mainly useless. (The documentation is) not fit for use by developers, totally insufficient and inaccurate for the purpose it is intended."

ECIS comments on Microsoft’s media responses to the 22/12/05 S.O.
Procedural issues : Microsoft responded to the S.O. with public accusations of procedural foul – notably lack of access to the Commission file. In fact, Microsoft has obtained full access to the relevant file, and can submit its own expert reports if it believes that the conclusions of the Trustee are wrong.

The Source Code announcements : At press conferences in Brussels on January 25th and yesterday, Microsoft has stressed that it will allow competitors to take a license to its proprietary protocols to consult their underlying source code.

Few details have been released, but it is clear that Microsoft refuses to give open source software developers (e.g., of Linux) any access to its protocols, let alone their source code. The offer is only to proprietary software developers.

It remains the case that no one has asked Microsoft to disclose source code. The Commission’s decision requires Microsoft to provide the specifications that ensure interoperability, not to disclose source code. This is for good reason:

• Access to source code is not necessary to ensure interoperability.
• Making access to source code available instead of providing adequate specifications shifts the cost of compliance from Microsoft to other software developers.
• As a rule, other vendors do not even want to see Microsoft source code for fear that their software engineers will be contaminated and that Microsoft will later launch legal reprisals (e.g., copyright infringement suits).