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Microsoft Corp.s proposal to European Union regulators for resolving its outstanding antitrust issues does not provide key concessions requested by open-source software projects, European Competition Commissioner Neelie Kroes said on Monday.
The revelation is a blow to the developers behind projects such as Linux and Samba, which use open source or “free software” licenses. Such projects currently say they are excluded from measures imposed by the European Commission last year that are meant to restore competition in the workgroup server market.
The commission ruled last year that Microsoft had abused its dominant position in the operating system market to extend its dominance to servers. One of the remedies imposed at the time—and brought into effect after a court ruling in December—required Microsoft to license server communications protocols to competitors.
But Microsofts proposed licensing terms are unsuitable for the freely distributable nature of open-source projects, developers said. Whats more, developers implementing the protocols are not allowed to make the source code of their projects available under open-source licenses.
Nevertheless, Microsofts latest proposal appears likely to be accepted by the commission. “I am happy that Microsoft has recognized certain principles which must underlie its implementation of the commissions decision,” said Kroes in a statement. The commission will give its decision by the end of this month, after consultation with the industry.
Kroes confirmed that open-source licenses are excluded from Microsofts latest proposal and may only be allowed if the commission wins in Microsofts appeal of the case. The appeal process is, however, expected to take several years.
“The commission remains committed to ensuring that in due course it will become possible to use certain interoperability information from Microsoft in software products distributed under an open source license,” the commission said in a statement.
Microsoft General Counsel Brad Smith said that the issue of open-source licenses is still unresolved. “We are comfortable turning to the courts for guidance on this issue,” he stated.
The proposal does make some concessions on licensing, with some of the protocol information Microsoft discloses being royalty-free, the commission said. No details have yet been made public.
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For open-source developers, the current proposal might as well not exist, according to the Free Software Foundation Europe. “This is the same situation that would have existed if the European Commission had lost in court in December,” said FSF Europe spokesman Georg Greve. “Essentially, Microsoft continues to refuse allowing competition from its only remaining competitor by excluding free software implementations.”
Samba, an open-source project allowing communications with Windows networks, is likely to be hard hit if Microsofts stance doesnt change, said Samba developer Volker Lendecke.
“If the commission accepts this view, Samba is out of the game,” he said. “Even if Microsoft gave away some information free of charge and free to open-source developers, there would still be discussion about the undisclosed protocols. Microsoft knows very well what critical pieces of information not to disclose.”
Carlo Piana, an attorney representing the FSF Europe, was more sanguine about the prospects for open source, noting that the commission has recognized the importance of “free software” to competition. Any battle over which protocols should be disclosed may be beyond the FSFs resources, he said, but the monitoring trustee who will be appointed soon could prove to be a valuable asset, he said.
“I hardly see this as a defeat for the free software movement, though it is not a giant move forward,” he said.
At a Bonn, Germany, press conference on Monday, Kroes acknowledged that the commissions hands are tied to some extent by Decembers ruling by the Court of First Instance. “We cant take a risk. We have to be aware that the Court of First Instance is watching us, and rightly so,” she told journalists at the conference.