MS to EU: Trust us, we've never seen a loophole we liked

The court didn't buy the "I'm too smart to have done that" argument, but the Europeans may have just done itto themselves too -and face the same bottom line Apple did: getting exactly nothing from Microsoft.

On June 6th the European Commission announced its intent to "market test new proposals it has received from Microsoft outlining how the company intends to implement the Commission's March 2004 Decision in the field of interoperability".

Here's the critical bit from the press release:

The Commission's Decision of March 2004 requires Microsoft to disclose interoperability information to developers of work group server operating systems. Following rejection of Microsoft's application for suspension of this requirement by the Court of First Instance in December 2004 (see MEMO/04/305), the Commission was concerned that the conditions imposed by Microsoft for access to, and use of that information were not reasonable and non-discriminatory.

Microsoft has now agreed to make a number of changes to these conditions. Microsoft has agreed that it will allow development and sale of interoperable products on a worldwide basis. Microsoft has also recognised that a category of the information which it is obliged to disclose will be royalty-free.

Microsoft considers that the software source code developed by recipients of the interoperability information that implements the Microsoft protocols should not be published under a so-called 'open source licence'. The Commission nevertheless considers that, if the Court of First Instance rules in favour of the Commission in the pending application for annulment filed by Microsoft (case T-201/04), this should be possible for the protocols that do not embody innovations.

Notice those last words: "this should be possible for the protocols that do not embody innovations." I guess someone over there doesn't know the company's history.

When Microsoft introduced Windows 1.0 in November of 1985 they had two major problems. First, they could develop on Xenix, but the market was dominated by machines running PC-DOS with the original 64K memory block limitation from the 8088 still built in - and those couldn't run Windows effectively. Secondly, Windows looked so much like a copy of MacOS that Apple eventually sued them.

Microsoft won, but it took until 1994 when the U.S. 9th Circuit Court of Appeals ruled in its favor. Here's part of the court's own summary of the situation:

When Microsoft Corporation released Windows 1.0, having a similar GUI, Apple complained. As a result, the two agreed to a license giving Microsoft the right to use and sublicense derivative works generated by Windows 1.0 in present and future products. Microsoft released Windows 2.03 and later, Windows 3.0; its licensee, Hewlett-Packard Company (HP), introduced NewWave 1.0 and later, NewWave 3.0, which run in conjunction with Windows to make IBM-compatible computers easier to use. Apple believed that these versions exceed the license, make Windows more "Mac-like," and infringe its copyright. This action followed.

With that background, here's the interesting bit:

Apple's further contention that the district court's interpretation of the Agreement must be wrong because it would be unreasonable to suppose that Apple knowingly gave away its most valuable technological asset ignores the fact that Apple itself received valuable consideration under the Agreement: the right, to use and license any new displays created by Microsoft within five years, together with Microsoft's promises to delay release of an IBM-compatible version of Excel and to release an improved version of Microsoft Word for the Macintosh. Under these circumstances, the district court properly concluded that the Agreement is not reasonably susceptible to Apple's interpretation.

The court didn't buy the "I'm too smart to have done that" argument, but the Europeans may have just done it to themselves too -and face the same bottom line Apple did: getting exactly nothing from Microsoft.

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