| Who really won in Microsoft vs. the EU? |
Oct. 25, 2007
My colleague over at Microsoft Watch, Joe Wilcox, declared that "Microsoft bowed before the EU and took its whipping." Eh, after a couple of days to look at the decision, I don't think so. At best, I'd say the European Union got the more favorable end of a draw.
To refresh your memory, here's the background. The EU opened a series of anti-monopoly investigations against Microsoft starting in 1999. The EU found that Microsoft had abused its dominance of the operating systems market both by tying WMP (Windows Media Player) to Windows and by failing to release information about Windows to competitors in the server market.
After long talks with Microsoft, the EU gave up trying to get Microsoft to be cooperative and slapped the company with a 497 million euro fine in March 2004.
As Microsoft and the EU fought their way through the European legal system, the issues began to clear up. In 2005, Microsoft conceded defeat on the Media Player issue and began to offer Windows without WMP: Windows XP N. Too bad almost no one ever bought XP N.
Let me repeat that. Microsoft "surrendered" and it made no difference. Why? Because by 2005, Microsoft had won its market battle. If you watched video on a Windows PC, you were using WMP. Even if you're not running Windows, here in 2007, you may have noticed that most Linux desktops now either offer WMP file compatibility as part of their package—Freespire and Mint—or as an easy to add option—Ubuntu and openSUSE.
Then, in September 2007, the European Court of First Instance smacked Microsoft around for the WMP issue and its failure to enable Microsoft's competitors to interoperate with Windows domain architecture on an equal footing with Windows operating systems. Instead of fighting it out, Microsoft "surrendered" on Oct. 22. I wasn't impressed back in September by Microsoft's defeat. Now, as I look closely at Microsoft's defeat, I'm even less inclined to think that Microsoft has lost much.
First, here's the good news. Microsoft has to open up its Windows server and PC interoperability protocols and API to its competitors. Yes, even the ones that use open source now can get to Windows' networking protocol information.
There's a catch though. I quote from the EU's FAQ on the decision, "Open-source software developers use various 'open source' licenses to distribute their software. Some of these licenses are incompatible with the patent license offered by Microsoft. It is up to the commercial open-source distributors to ensure that their software products do not infringe upon Microsoft's patents. If they consider that one or more of Microsoft's patents would apply to their software product, they can either design around these patents, challenge their validity or take a patent license from Microsoft."
Let me think now—what license specifically makes it impossible to use a patent limited to only a few customers? Could it be the GPLv3?
Why, yes, yes it is. And, what open-source project is most concerned with getting Windows and Linux PCs working together over a network? Why, could it be Samba? The file/print server and Windows network interoperability project that has already switched to the GPLv3? Right in one.
Think about it. The one major open-source project devoted to working with Windows networking can't use the fruits of Microsoft's defeat. Oh yeah, Microsoft was really hurt by their defeat.
Some projects, I'm sure, will benefit. It's just that the most important one won't. But let's look closer still. Microsoft is limited to how much it can charge for using its patents. At a 10,000 euros flat-rate per patent it's even affordable ... for a company.
If you didn't know about how the U.S. patent system is abused on a daily basis, it would almost sound like a good idea. Anyone who has paid any attention to patents and technology, however, knows that software patents are only good for two things. The first is to make patent troll partners millionaires by ripping off companies that actually make programs. The second is that it lets big software companies crush small ones.
And, of course, there are times, like in IP Innovation vs. Novell and Red Hat, where you could argue both purposes are being served. IP Innovation's lawyers hope to make some easy cash from the Linux companies' software engineers while Microsoft gets to tell customers about how bad open-source businesses are with IP (intellectual property).
When I got the idea for this story, I thought that open-source had gotten a few good things out of the EU settlement. As I researched my story, though, I realized that I was wrong. Microsoft's surrender is also open source's defeat.
Damn it.
—Steven J. Vaughan Nichols
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