Microsoft fights to keep source code closed

The software giant is taking the Commission to the European Court of First Instance to prevent the source code of its server communication protocols from entering the public domain.

This creates problems with licenses of Free and Open Source Software. According to these licenses, programmers must publish the source code of their works, in order to allow others to study how the program works and to eventually improve it. 

The biggest competitors of Microsoft’s server platform, such as Apache for the web server market, Novell for enterprise groupware systems and Samba for the small office server market, are all entirely or partly Open Source companies and projects, and all of them are publishing their software under licenses that require the sourcecode to be published. 

Microsoft could provide these competitors with protocol information under terms that require the protocols themselves to be treated as confidential. For Microsoft, this creates the dilemma that it would be fairly easy to draw conclusions on the protocols by looking at the source code of applications made to work these very protocols. Any third party would then have a choice of either paying royalties to Microsoft for the disclosure of protocol information, or simply get the wanted information from software made by someone who knew the Microsoft protocols. The result would be that the Microsoft protocols slowly slip into the public domain. 

The Commission has made it clear that it considers competition in the market for small office and Workgroup servers to be insufficient. Jonathan Todd, spokesman for Competition Commissioner Neelie Kroes, said: "The Commission considers that if the Court of First Instance upholds the March 2004 decision then it should be possible for the protocols that do not embody innovations to be circulated under open-source licenses." Mr. Todd told EURACTIV: "The only case where we will have to wait for a decision by the Court is whether Open Source developers will be allowed to circulate the code amongst each other."

Microsoft says its latest step was all but surprising. Company spokesman Tom Brooks said that "the communications protocols [...] are based upon Microsoft's intellectual property. [...] This filing is the result of the agreement we reached with the Commission in June to put this particular issue to the Court of First Instance for guidance and avoid any further delay in the process."

Free and Open Source programmers say Microsoft is playing for time. They argue that by the time the Court of First instance will have decided, some of the smaller companies may not be in business any more. Volker Lendecke of the Samba team told EURACTIV: "In our market, we are the only remaining competition to Microsoft. We are, in many fields, ten years behind Microsoft. And the lag is growing with every new step that Microsoft takes."

ruling of the Commission from March 2004, which was confirmed by the Court of First instance in December 2004, obliges Microsoft to disclose  "complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers".

In principle, Microsoft agreed to the terms of the agreement as part of a  proposal on how to implement the Commission's ruling. The disclosure of the information is, however, subject to a license which requires that the information may not be passed on to third parties. Some of these licenses are free, some require the licensee to pay royalties to Microsoft. 

  • It is not rare for the Court of First Instance to come to a ruling only three years after a case has been filed. 
  • The Commission has yet to carry out the remedy as a follow-up of its server protocol ruling. The remedy will be based on a market test carried out in July. The remedy may contain an obligation for the early disclosure of the protocol information to Free and Open Source programmers even before the Court of First Instance has made a ruling. However, the Commission has refused to comment on whether such an early disclosure, which is not uncommon in competition cases, will be part of the remedy.

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