Microsoft's antitrust offering 'blocks Samba'

Update: Microsoft's final EC antitrust offering will exclude one of its main competitors, Samba, according to the Free Software Foundation

The European branch of the Free Software Foundation (FSFE) has accused Microsoft of freezing out Samba, the open source work group server operating system, in its final attempt to comply with last year's European antitrust ruling.

In this final offering, filed last week, Microsoft agreed to make some server interoperability information available royalty-free, but declined the EC's request to allow free software developers to publish the source code of products that have been written using this information. The EU has not yet accepted Microsoft's offer.

Microsoft's decision to prevent developers from releasing the source code of products that have used its interoperability licence means that Samba will be unable to use this information, according to FSFE president Georg Greve. Samba is a widely used open source software package that allows Windows files and printers to be shared by Unix and Linux systems.

"The proposal specifically precludes the information from being used in a free software implementation, such as the Samba workgroup server software. As Samba is the only remaining major competitor of Microsoft in this market, the Microsoft proposal translates as: of course we will give you the specifications -- unless you happen to be a serious competitor of ours, that is," said Greve.

Microsoft will only have to concede this point if it loses its appeal to have the antitrust ruling overturned by the European Court of First Instance. This case is expected to be completed in mid-2006, a spokesman for the EC told ZDNet UK. Until then, developers can write closed source products that use Microsoft's server interoperability information, or will have to rely on reverse engineering to write open source products that are interoperable with Microsoft servers, said the spokesman.

Microsoft claims that allowing developers to release the source code of products that have used its server interoperability information would result in the loss of its intellectual property.

"We worked to be creative in enabling developers to work with our technology together with open source software, yet still protect our intellectual property. Our proposal addresses this objective,” said Brad Smith, Microsoft's General Counsel.

The software giant is understood to be keen for open source projects to adopt a hybrid licensing model, as is done by a number of open source vendors that sell products based on both open source and closed source code. However, the EC claimed developers should be allowed to release the source code, as the royalty-free protocols are not innovative.

Horacio Gutierrez, an Associate General Counsel at Microsoft, told ZDNet UK earlier this week that the company has only offered a royalty-free option as a compromise and this does not mean that the protocols are not inventive.

"Microsoft has voluntarily proposed that it will offer some of the protocols on a royalty-fee basis. This is being done in the spirit of compromise and in order to move the process forward, but does not necessarily imply that Microsoft believes these protocols are not innovative. In effect, the protocols in question represent valuable trade secrets and are covered by patents," said Gutierrez.

Greve from the FSFE is unhappy that the EC has implied that some of Microsoft's protocols are innovative. He claimed Microsoft could use this as a new tool to drag out its response to the EC's antitrust ruling.

"By accepting the notion that some protocols may be considered innovation, the European Commission opened a Pandora's box of legal house-to-house fighting: Microsoft will declare all the protocols as innovative and will defend them for as long as they can. Its would-be competitors and the Commission on the other hand will never be able to compete with Microsoft's army of several hundreds of lawyers", said Greve.

In response, Gutierrez told ZDNet UK on Wednesday afternoon that the EC has recognised Microsoft's right to charge fees and protect its intellectual property, so the FSFE's objection appears to be with the EC's decision. He admitted it would be difficult for Microsoft and the FSFE to resolve this issue due to the difference in viewpoints.

"Microsoft's proposals respond to the Commission's requirements from a technical, business and legal point of view, the remaining issue [raised by the FSF] reflects more an objection to the Commission's decision than Microsoft's efforts to comply with the decision," said Gutierrez.

"There is a fundamental difference in view between the Free Software Foundation and Microsoft as to the value of software. The Free Software Foundation believes in a model in which software is free and investments are recovered from the sale of services. For Microsoft, software is its main asset and the basis upon which Microsoft has built its business," he said.

The European Commission (EC) said on Monday that it will market test Microsoft's proposed server interoperability licence over the next two weeks, before deciding whether or not the software giant has complied with last year's ruling.