Microsoft Sues EC Over Source Code

Microsoft has filed a lawsuit against the European Commission in a European Union court, asking the Court of First Instance to intervene regarding the issue of opening up its server source code to rival software makers.

Microsoft spokeswoman Stacy Drake McCredy confirmed the filing Wednesday, characterizing it as an application for annulment with the Court of First Instance.

“We are taking this step so the court can begin its review now of this issue given its far-reaching implications for the protection of our intellectual property rights around the world,” she said.

EC spokesman Jonathan Todd said the EC would not comment on the suit until it speaks to the court.

“We will explain our position to the Court of First Instance and see what they have to say,” Todd said.

The moves comes more than three months since Microsoft delivered its proposal to comply with the EC’s antitrust rulings from March 2004.

Microsoft had until June 1 to deliver its plan for complying with EC orders to allow server interoperability and to unbundle its Windows Media Player from the Windows operating system.

Microsoft agreed to make a number of changes to these conditions. This includes allowing the development and sale of interoperable products on a worldwide basis, some of which will be royalty-free.

However, Microsoft argued that the source code developed by recipients of the interoperability information that implements the Microsoft protocols should not be published under an open source license.

The EC agreed that the source code did not have to be made public.

“The Commission nevertheless considers that, if the Court of First Instance rules in favor of the Commission in the pending application for annulment filed by Microsoft, this should be possible for the protocols that do not embody innovations,” the EC said in a statement from June 6.

This drew protests from open source software makers all over the world. But now it’s in the court’s hands.

Microsoft and the EC are essentially waiting for the court to rule so that further negotiations can go forward, which is why Microsoft filed suit this week.

Todd has said the commission would take weeks to decide if Microsoft has complied with the March 2004 ruling involving its Windows platform. In 2004, the commission slapped the software giant with a record $613 million fine after it found the company controlled a “virtual monopoly” with its Windows operating system.

The commission is now testing to determine if interoperability requirements are met, which would allow non-Microsoft workgroup servers to work with Windows PCs and servers. The goal is that companies will be able to use certain interoperability information from Microsoft in software products distributed under an open source license.

If Redmond’s proposals fall short of full compliance, the company will face a daily fine of up to 5 percent of its daily turnover worldwide. It is estimated that number would equal approximately $5 million a day.

In related news, the EC and Microsoft have not settled on a “trustee” to ensure the company complies with antitrust agreements. The trustee will provide technical advice to the commission and evaluate the character of the protocols at stake.

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