Mario Monti rebuttal?

Alex Hudson home at
Thu Mar 25 00:14:30 UTC 2004

On Wed, 2004-03-24 at 23:51, Rui Miguel Seabra wrote:
> Of course not. What they're forced to is to create a RAND licensing
> scheme for their IP. This is unacceptable for competing Free Software.

I'm not sure they are saying RAND. The decision posted appears to be
sceptical of IP rights subsisting within the disclosed documents;
they're just not excluding the possibility. If you can patent APIs,
frankly, we have bigger problems than Microsoft.

The decision appears to believe that IP rights do not exist in the APIs.
If this is the case, I think you'll find the legal process is very
short. Microsoft are planning on appealing the conduct remedies (they
cannot appeal the fine; they have to pony that up within three months
come what may), one of which is the unbundling, the other is the
publication. The unbundling they will oppose on the grounds it's too
difficult, but that would probably fail quite quickly because the
argument is weak. 

The publication of specs they would seek to oppose on the grounds that
they would have to make available their IP, and that once made available
it cannot be made unavailable. That would be the basis to get injunctive
relief on the remedy, to at least run the clock out for a bit. So, when
they appeal that, they will have to outline exactly what IP they think
they have in those APIs. The EUCC appear to think their IP rights in
those APIs are basically squat; that they're trade secrets of value only
because they're secret. You cannot ask for compensation for inability to
commit a crime; similarly, I don't think Microsoft can ask for money for
trade secrets they use to leverage their desktop monopoly. 

> The _real_ competitor can't compete. So I disagree. Yes, I know you're
> for Free Software, I just think you're not getting that SAMBA, for
> instance, is impaired, specially in the case of software patents, which
> we hope to be able to put down, but are not certain.

I understand the threat of patents, and that RAND does not solve the
problem for free software. I'm just willing to give the EU the benefit
of the doubt until they publish their decision in the Microsoft case
(which, they haven't done yet). The competition commission would be well
aware of who the competition actually are, and they cannot be unaware of
Samba - this case is specifically about workgroup situations. If it
turns out that the disclosures would be useless to Samba, then we should
protest. So far, though, the competition commission have been fairly
effective as EU institutions go.

They will publish the decision within a week or two, and in a couple of
months Microsoft will appeal the decision. I would think at that point
there may be a window in the process to make points to the EUCC if we
think that the conduct remedy is deficient in some way; but it would be
fairly unlikely to change anything now. 



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