Microsoft, EU Tussle over Software Code Access for Rivals

Microsoft Corp. sparred Thursday with its rivals about how much information it should give them to make servers more compatible as judges questioned both sides in the European Commission's antitrust fight over what code could be divulged without giving away trade secrets.

Judge John D. Cooke, in a terse exchange with commission lawyer Anthony Whelan, asked whether Microsoft's proprietary information should be given away to its rivals, including patent information.

"It's much more than trade secrets, it's hugely valuable information," the judge said, a reflection of Microsoft's assertion that to give over the code would be tantamount to forfeiting the hundreds of years in manpower that went into devising the code. "The commission is saying even if there is no patent rule involved ... it needs to be taken away from them and shared."

Whelan said the value Microsoft placed on the code was merely a reflection of the amount of time and effort it had put into creating it.

The exchange came as supporters of the commission in its antitrust fight with Microsoft told the Court of First Instance that the software maker's claims of interoperability between its Windows system and other companies' servers was simply inaccurate.

James Flynn, a lawyer for the European Committee for Interoperable Systems, an industry group that includes Sun Microsystems Inc., IBM Corp. and Oracle Corp., said that Microsoft's "information is not kept secret because it is valuable. It is valuable because it is kept secret."

Other commission proponents agreed.

"Microsoft could easily have provided us with a very large part of the information required by the commission ... onto a single floppy disk," said Andrew Tridgell, founder of the Samba Project.

Samba is an open source and free software suite that offers file and print server services to users of UNIX, Linux, IBM and OpenVMS that can interact with a Microsoft Windows client or server.

But Tridgell said that because of Microsoft's reluctance to make available some of the information as ordered by the commission, Samba is always trailing.

"We're forever relegated to playing catch up," he said. "We are more than 10 years behind."

Redmond, Wash.-based Microsoft had argued that the commission had forced it to effectively give rivals a "free ride" on the work the company did to acquire new customers and develop new technologies.

Microsoft lawyer Ian Forrester rejected any suggestion that the company had deliberately exaggerated the importance of certain algorithms it would have to disclose.

Microsoft and EU officials were still discussing just what needed to be handed over, he said, explaining that Microsoft believed that to meet the terms of the commission order and hand over "complete and accurate" information, it would have to give access to key parts of its code.

The commission has never asked Microsoft to open up its source code -- the recipe for Windows -- but Microsoft offered earlier this year to grant some access to rivals under certain conditions if it would appease both EU and U.S. regulators.

Forrester said software engineers could work around the patented material if they wanted.

But Ronald Alepin, the former chief technology officer of Fujitsu Software Corp. and an expert witness for Microsoft's rivals, said the company was wrong to claim that describing how its software works could help other software makers clone Microsoft products.

"It is axiomatic in our industry that specifications, properly written, do not reveal the design and should not reveal the design," he said. "We just want to be able to connect."

The commission has said the degree of interoperability Microsoft allowed was simply not viable for most customers and "effective competition" no longer existed in the market. Microsoft has insisted that the survival of its rivals and the emergence of new companies proved the competition was strong.

The world's largest software maker maintains that it has worked strenuously to comply with the 2004 EU ruling that told it to pay a record $613 million fine. The ruling came after a five-year investigation concluded that Microsoft had taken advantage of its position as the leading supplier of operating systems.

While a court decision on the ruling is not due for months, a decision backing the commission could force Microsoft to change the way it does business in the future and endorse the EU's ability to hold back aggressive corporate behavior.

An appeal is not certain since Microsoft would need strong legal arguments to protest the ruling to the EU's highest court, the European Court of Justice.


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