December 4, 2001

MS to Europe: Opening source would break patent laws

Author: JT Smith

- By John Lettice of The Register -
Could this be a gauntlet? In its response to the European Commission's accusations
of anti-competitive behaviour, Microsoft has claimed that the Commission forcing it
to license its source code would break international patent laws. And it has noted:
"The proceedings before the Commission are inevitably affected by the settlement
that Microsoft has entered into with the US Department of Justice." These little snippets from the 102 page document, which was leaked to Bloomberg
yesterday, might just be read as Microsoft drawing a line in the sand. The
Commission does indeed have the power to force Microsoft to license its source
code, but if it did so it would, in Microsoft's view, be breaking international law, and
setting itself up for a tussle with the US authorities and the World Trade
Organisation. It almost sounds like a threat, and that might not be wise at this
juncture. The reference to the DoJ deal reinforces this - if the penalties imposed by
the Commission are seriously tougher than those negotiated in the US, the
sometimes precarious detente between European and US antitrust authorities could
collapse. Do you feel lucky, Mario?

Microsoft does however seem to be over-egging the pudding by going on about
"compulsory licensing," which is what it claims Sun and IBM have asked for. Sun's
complaint, could be tackled effectively simply by allowing the company access to
those parts of Microsoft's code that link client systems to servers - WABI was a long
time ago, and Sun most definitely didn't ask the Commission for help in reviving it.
IBM's complaint, on the other hand, is an enigma. Until Microsoft mentioned it we'd
no idea that IBM had made a complaint, and frankly, we doubt it has. Big Blue
skulking in the shadows in Brussels alleyways again, undoubtedly, sticking stilettos
into hapless monopolists...

In the document Microsoft also defends itself against charges that it made up letters
of support from its customers; this seems deliciously lame. There were 34 letters,
Microsoft says that the Commission may have shown that five or six of the
companies concerned didn't know the information would be used in its antitrust
defence, but that at least 23 did know this. Which according to our calculations
leaves at least five Microsoft doesn't know about, or thinks it hasn't got caught for
yet.

The issue seems to have arisen in the first place from the sheer idiocy of the
mechanism Microsoft adopted in order to obtain the letters of support. Two lawyers,
one from Microsoft, were given the task of interviewing senior technology execs of
the companies involved, and from these interviews they drafted letters for the
companies to sign. The notion of just asking your supporters to write letters, and not
getting yourself involved in a process whereby the letters would inevitably be
massaged, seems to have been entirely alien to Microsoft. Which is pretty much par
for the course. ®

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