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Europe and Microsoft in Accord on Competition Rules
BRUSSELS, June 6 - The competition commissioner of Europe, Neelie Kroes, has agreed to exclude open-source developers, who distribute their software free, from the benefits of the antitrust ruling last year against Microsoft - but only for the time being.
After more than a year of wrangling, the European Commission and Microsoft appeared on Monday to have reached agreement on how to meet Europe's competition standards. In March 2004, Microsoft was fined 497 million euros (about $613 million at the time) for monopolistic practices, and ordered to share details of its Windows operating system with rival software makers, including developers of open-source software. Sharing those details would allow Microsoft's competitors to build programs that could work with Windows.
But under an informal agreement reached last week, the commission agreed to exclude open-source software developers from learning the details on Windows until Microsoft's appeal of the ruling works its way through the courts, a process that could take years. In return, Microsoft has vowed to share the details of its operating system with the designated group of competitors on a global scale, instead of just in Europe.
"We still believe it is an important part of the ruling that open-source developers should be able to take advantage of the disclosure of Windows protocols, but they will have to wait until after the appeal ruling," Jonathan Todd, a commission spokesman on antitrust matters, said.
Open-source software developers do not protect their inventions with patents. Instead, they design programs expressly so users can extract or alter elements within them.
Microsoft, however, has protected its software with copyright and patents, and fears that by allowing open-source developers to distribute and publish so-called protocols within Windows it will lose control of its intellectual property.
"This part of the ruling is being frozen because we didn't reach agreement on the legal standards to apply," a person close to Microsoft said in a telephone interview. He added: "We are comfortable turning to the courts for guidance on this issue."
Ms. Kroes said in a statement, "I am happy that Microsoft has recognized certain principles which must underlie its implementation of the commission's decision."
But the commission has insisted that the ruling, which would allow open-source software vendors to eventually publish Microsoft's protocols, would still respect its patents and copyright.
Microsoft appealed last year's antitrust ruling to the Court of First Instance in Luxembourg. Court appeals follow no strict timetable. Typically, a complicated antitrust appeal can take up to five years to conclude.
Microsoft has promised that if it loses its appeal, it will permit open-source software vendors to distribute and publish the Windows protocols. "If we don't win, this is the framework that will govern our operations worldwide," the person close to Microsoft said.
An agreement on how Microsoft should apply last year's antitrust ruling was reached during several days of negotiations with Europe's top antitrust authority, ending last Tuesday before an end-of-May deadline set by the regulator.
The commission will test the agreement with computer software and hardware makers to check if it is effective in restoring competition in Europe before giving it the final go-ahead.
In addition to extending the scope of this remedy globally, Microsoft has also agreed to break up the protocols into clusters so developers can buy selected details, rather than all or nothing, as Microsoft initially proposed.
One cluster that contains no patent or copyright-protected protocols will be made available free, Microsoft said.
But this failed to impress Microsoft's main critics. "Of course they will offer it royalty-free because there is no intellectual property inside," said Mark Webbink, a lawyer for the open-source software company Red Hat in Raleigh, N.C.
Thomas Vinje, a partner at the Clifford Chance firm in Brussels, said, "Microsoft should not be congratulated for abandoning unreasonable positions that it should not have taken the first place." Mr. Vinje is head of an industry group fighting Microsoft, called the European Committee for Interoperable Systems and known by its initials, E.C.I.S.
In a separate part of the antitrust ruling, the commission has accepted Microsoft's proposal for selling a second version of Windows that has the Microsoft Media Player stripped out. The aim of this remedy is to give rival media players like RealPlayer from RealNetworks and QuickTime from Apple fairer access to Windows users.
Antitrust officials were trying to push Microsoft to sell the second version for less money, but last year's ruling did not require a price differential. "We can only impose what's in the ruling," Mr. Todd said.
The commission has yet to approve a trustee to oversee Microsoft's compliance with the ruling.
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