EC Says Microsoft Still Out of Compliance

Published: March 15, 2006

by Alex Woodie

The ongoing saga between Microsoft and the European Commission continued last week when the EC said it was still not satisfied with the steps the software giant has taken to comply with its March 2004 ruling, and that it was not "colluding" with Microsoft's competitors, as the vendor suggested. Microsoft will be in Belgium in two weeks to hear the court's final decision on whether to impose fines up to $2.4 million per day, retroactive to December 15, or possibly more than a quarter billion dollars.

The EC announced last Friday that it had sent Microsoft a letter explaining that Microsoft still had not done enough to comply with its March 2004 ruling that it must provide full technical documentation to enable competitors to write server applications that can integrate with the Windows server and desktop operating systems. As a result of that decision, Microsoft prepared a 12,000-page report last year and submitted it to the court for approval.

According to an EC press release, although the 12,000-page document had improved "slightly" from previous versions, "nothing substantial" had been added, and it continues to be "incomplete, inaccurate, and unusable." This was the opinion of the neutral third-party, Neil Barrett, who was selected by both the EC and accepted by Microsoft, as well as AEUS Europe--the European subsidiary of TAEUS International, a Colorado company that specializes in intellectual property valuation, reverse engineering, and litigation support, and which the EC recruited in December to help it with this case.

TAEUS made some interesting word choices to describe Microsoft's documentation. According to the EC, TAEUS says the documentation is "entirely inadequate," "devoted to obsolete functionality," and is "self-contradictory." What's more, TAEUS concluded that Microsoft's documentation was written "primarily to maximize volume (page count) while minimizing useful information."

The EC also responded to a Microsoft complaint that the EC and Barrett were "colluding" with Microsoft's competitors, to the detriment of Microsoft's case. The EC dismissed this claim by explaining that Barrett must be in contact not only with Microsoft's engineers, but also with the "potential beneficiaries of the remedy."

Microsoft took the unusual step earlier this month of asking Federal Courts in California, New York, and Massachusetts to help it gain access to correspondence involving the EC, Barrett, TAEUS, and its competitors, including IBM, Sun Microsystems, Oracle, and Novell. So far, it appears none of those courts have acted on behalf of the software giant.

Microsoft also asked the EC to provide it with documents on the case, a request that the commission denied. Microsoft claimed it needed the documents to help prepare for the upcoming hearing March 30 and 31.