Microsoft Petitions US Courts for Help in EU Case

Published: March 8, 2006

by Alex Woodie

Microsoft petitioned several U.S. courts last week to force its competitors to turn over communications they've had with the European Commission regarding its antitrust battle against Microsoft. The Commission had previously declined the software giant's request for the documents, which Microsoft says shows it's "colluding" with its competitors and failing to meet its own transparency standards. Meanwhile, a Microsoft competitor derided the software giant's offer of Windows source code as a "poisoned honeypot."

Microsoft and the EC are at odds over the steps the software giant has taken to comply with the EC's March 2004 antitrust decision, which required the software giant to make it easier for competitors--including IBM, Oracle, Sun Microsystems, and Novell--to write applications for the Windows Server 2003 operating system. Microsoft came up with a 12,000-page report in response to that finding, and claims that document adequately describes the use of the "communications protocols" in the operating system.

However, in December, the EC said that Microsoft's 12,000-page document, as well as a promise to provide competitors with hundreds of hours of technical assistance, are insufficient in meeting that goal of increased interoperability and competitiveness. Microsoft tried to sweeten the pot by offering to give competitors access to source code, but the EC didn't seem to like that, either. The two sides will be back in court to deal with the interoperability issues and fines on March 30. If the EC finds Microsoft is out of compliance, it could impose fines of up to $2.4 million per day.

Before going back to court in three weeks, however, Microsoft says it needs access to some of the EC's documents to prepare its defense. Microsoft has asked the EC to give it copies of correspondence it's had with the vendors, with an independent trustee, and with a technical expert who reviewed Microsoft's 12,000-page document--a request that, so far, the EC has denied, citing rules concerning the confidentiality of internal EC documents.

Now, Microsoft is asking federal courts in California, New York, and Massachusetts to force competitors to turn over their correspondences with the EC. Apparently, there are legal precedents regarding the ability of US courts to order companies to turn over evidence against a defendant in the case of a foreign or international tribunal. However, legal experts have said Microsoft doesn't have much hope of winning this case. It looks like the EC holds all the chips.

Prior to seeking a friend in the U.S. courts, the software giant had accused the EC of "colluding" with the vendors in secret meetings as part of an effort to make it difficult to meet the interoperability requirements, which Microsoft says the EC hasn't been clear about.

"Our repeated requests to the European Commission (EC) for full and fair file access have not been successful, so we are now turning to the US courts for assistance in obtaining relevant communications between our US competitors and the Commission," Microsoft associate counsel Horacio Gutierrez said.

That accusation earned Microsoft a stern rebuke from the EC, which cautioned the software giant to mind its behavior, or face fines.

In other news, the Free Software Foundation Europe (FSFE) and Samba, which makes directory software that helps Windows and Linux software interoperate, have made public a brief it submitted to the EC in response to Microsoft's unsolicited offer to provide competitors with the source code to Windows Server as a way to heighten interoperability.

"The concerns of FSFE and the Samba Team can be summed up with one single sentence: that the source code reference license is a poisoned honeypot, from which FreeSoftware operators shall stay away as much as possible," the groups wrote in a March 6 letter, which can be read in PDF format here.

The document went on: "Actually seeing source code being not under a Free Software license (such as the BSD, the GNU LGPL, or even the Microsoft Public License) means to expose any Free Software project, including Samba, to huge litigation risks."