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Background: Microsoft against free competition

In 2001 the European Union, through the DG Competition of the European Commission (lead by prof. Monti), started investigating on Microsoft dominant position in the desktop operating systems. The Free Software Foundation Europe was invited from the EC to represent the stances of Free Software movement. In 2004 FSFE is trying to participate to the appeal to defend again free competition and freedom of choice against abuses.

FSFE decided to contribute to the investigations of DG Competition due to our long and broad experience in the software field. Also Free Software, and in particular the GNU/Linux operating system, was cited by Microsoft as its principal competitor, therefore FSFE had a direct interest in defending it. In a letter to the DG Competition dated 16 November 2001, FSFE asked to be heard.

The request was accepted and therefore the team members and lawyers of FSFE had access to the confidential information and had the chance to comment on the advancement of the investigation.

In August 2003, FSFE asked the Commission to hear the suggestions of the Samba Team to bring back competition in the file/print server market. The document, signed by Jeremy Allison, project leader of Free Software Project Samba, was very well received. In a private hearing in November 2003, Peter Gerwinski and Jeremy Allison exposed the positions of FSFE and of the Samba Team officially in front of the Commission.

The Final Decision of the DG Competition takes into consideration most of the comments made by FSF Europe to defend Free Software (although it is not a perfect solution.)

In June 2004 Microsoft appealed against the sentence. FSFE is worried that the loopholes in the Decision can be exploited by Microsoft's lawyers and is therefore participating to the appeal.

The Decision of the DG Competition contains unclear statements, most of them caused by the abuse of the unclear word "Intellectual Property". The ambiguity of such word makes it difficult to judge if the Commission is asking Microsoft to give up copyright on parts of their source code or license to everybody its patents on the protocols and interfaces they have developed or even give up some valuable "trade secrets". An even bigger problem with the Decision is that it allows Microsoft to use so-called "RAND" (Reasonable And Not Discriminatory) licenses. As repeated often, the RAND clauses for using patented interfaces or protocols actually discriminate against Free Software implementations since, however cheap those licenses can be, they add a limit to the free distribution of software (making it non-free).

In the end, FSFE believes that Microsoft should reveal all information necessary to achieve complete inter-operation with its systems, be it the Media Player or the Directory Service. To achieve this it is not necessary to disclose source code developed by Microsoft, it is not necessary to reveal "trade secrets" as protocols and interfaces are already 'public' (since they can be reverse engineered) but it is inconvenient to use them. It is extremely important that the DG Competition guards the market and also avoids that software patents are legalised in Europe, so that Free Software implementations of those interfaces will always be possible.