An unseasonal gift for Microsoft from the EC
As Microsoft heads in to the seasonal break it does so with the threat of daily fines of 2 million Euros, rather than sprigs of mistletoe, hanging over its head, according to
Reuters. The European Commission is clearly in no mood to kiss and make up.
The EC has issued a Statement of Objections for failing to comply with one of the remedies imposed following the EC decision that Microsoft had abused its near OS monopoly. At issue is the EC's view that Microsoft has failed to provide comprehensive and accurate documentation to allow third parties to interoperate with the Windows - a view which is backed up by two reports from Professor Neil Barrett, a UK computer scientist who was appointed as an independent monitor in October.
EC competition commissioner Neelie Kroes didn't mince her words:
I have given Microsoft every opportunity to comply with its obligations. However, I have been left with no alternative other than to proceed via the formal route to ensure Microsoft’s compliance.
The formal route mentioned being a potential daily fine of 2 million Euros. Clearly, Professor Barrett took a dim view of the quality and usability of the Microsoft documentation.
The clock is now ticking and Microsoft has 5 weeks to respond before the Commission can begin the process of imposing the fines, retrospectively from the 15 December until Microsoft complies. Microsoft's lawyers and technical writers may not get the holiday break they were hoping for.
For a company with Microsoft's resources and technical nous, I find it somewhat difficult to believe that it has been unable to document a set of interfaces, particularly since it has had ample time and feedback from interested parties. I can only assume that it is a delaying tactic. 5 weeks may not seem like much of a delay but the EC is going to have to go through additional administrative steps to impose the fine and then again to extend it. And even if a fine is imposed 2 million Euros/day is hardly going to get the Microsoft bean counters scrutinising the cash flow.
Of course, this is only part (and a much less complex part) of the story. The other remedy imposed by the EC requires that Microsoft make the interoperability information available on reasonable terms. With the open source community, particularly the Free Software Foundation, lobbying hard, the EC and Professor Barrett have their work cut out simply determining what constitutes "reasonable" and for whom, let alone whether Microsoft satisfies that determination. It is therefore unsurprising that this is still being evaluated.
Given the delays around the documentation and the complexity of the licensing terms, it seems highly likely that the second anniversary of the EC's original decision in March next year is going to pass without a satisfactory resolution.
UPDATE
Microsoft
has responded to the EC's objections claiming they are unjustified. Microsoft General Council Brad Smith is quoted as saying:
We have now responded to more than 100 requests from the Commission. We
continue working quickly to meet the Commission's new and changing demands. Yet every time we make a change, we find that the Commission moves the goal post and demands another change
Now I am not a lawyer but it seems to me that the EC has requested comprehensive and understandable documentation and an independent expert (one of a list provided by Microsoft) has said they have not provided it. That doesn't seem to me to be a shift in the goal posts: the goal posts are in the same place but Microsoft has failed to shoot between them.
Smith then goes on to claim that enabling interoperability:
can open the door to the production of clones of parts of the Windows ... The Commission confuses disclosure of the source code with disclosure of the internals and insists that it will fine the company if it fails to address this
I have not had sight of the documentation and the extent of the interfaces but it seems to me that Smith is overstating the case somewhat. Facilitating interoperability, as Microsoft knows full well given its work on web services (e.g. with the use of WS-Management to manage Windows Server Release 2), COM etc, does not necessarily require that the internals are exposed to a sufficient level to enable cloning.
Smith says that Microsoft will contest the statement to the full extent permitted under EU law, which includes a full Oral Hearing. Such a hearing will no doubt take months to arrange, adding further delay to the process (any fines will not be enforced until Microsoft's objections are considered).
If the NY Times article is to be believed, I also think Smith has done himself and Microsoft no favours by claiming that neither the EC nor Professor Barratt had reviewed the documentation properly
