Moving the goalposts, and forcing Windows to punt into open-source territory

Prior to his appointment as Monitoring Trustee, Dr. Barrett was CTO of the British security firm Information Risk Management, Plc. There, he was highly vocal about the exposure businesses and universities faced by continuing to use Microsoft Outlook as their mail client of choice, especially during the 2001 outbreak of Outlook viruses. That year, when Microsoft imposed a gag order on the disclosure of information relating to the cause of such viruses, Dr. Barrett commented to Silicon.com, "Microsoft will attempt to control access to vital information, which means they can sell it at any price they want to. To me that's a monopolistic situation."

Historically, Dr. Barrett's specialty is Unix, although he reportedly had been recommended by Microsoft for the Trustee post. There, according to the EC, his role is to ensure that Microsoft is actively working to comply with its rulings. But comments he has made in the past, including the Silicon.com comment, may indicate he has at least some preconceptions about how the company manages its vital information.

For its part, Microsoft maintains it may be releasing more information than anyone is rightly entitled to. "In total, we have now responded to more than 100 requests from the Commission," Smith's statement continues. "We continue working quickly to meet the Commission's new and changing demands. Yet every time we make a change, we find that the Commission moves the goal post and demands another change."

Smith made reference to an agreement in September 2004 with the EU's counterpart of the Chief Judge for the Court of Appeals: the President of the Court of First Instance, Bo Vesterdorf. That agreement apparently distinguished between the interoperability documentation Microsoft was ordered to release, and source code which would conceivably give away company secrets. Smith avoided mention of Pres. Vesterdorf's decision in December 2004, quashing Microsoft's appeal to stay the EC's ruling forcing the company to release not only interoperability documents, but a version of Windows that omits a media player. That version, which was sold throughout Europe under the brand "Windows XP N," sold about as few copies as Microsoft expected.

Vesterdorf's December 2004 decision opened the door for the EC to pursue a new and surprisingly lofty goal: the imposition of an open source mechanism, enabling companies to license the interoperable components of Windows at apparently no cost. Microsoft maintains this would enable competitors to create, in effect, their own Windows. Officials from the EC have not exactly denied this. Neelie Kroes, the EC Commissioner for Competition - in effect, its "competitiveness czar" - in a speech last June assessing her group's own progress in meeting its 2004 goals, stated, "The Commission remains committed to ensure that all elements of the [March] 2004 decision are properly implemented. This includes, in due course...the possibility to use certain interoperability information from Microsoft in software products distributed under an open source license."

An EC member is the relative equivalent of a US senator, though like a member of the UK parliament, she can be appointed in charge of a department or commission. Like a powerful US Senate committee chairman, an EC commissioner can make rulings on the behavior of a company under her purview; but unlike her US counterpart - and more like a US court ruling - a commissioner's decision carries its own weight, and non-compliance can carry its own penalties. The EC is threatening to impose a fine of two million euros per day, for each day Microsoft continues to withhold the release of sensible, enlightening documentation. Ms. Kroes' position has made her something of a celebrity throughout Europe. So her lofty goals of apparently opening up Windows to something like a general public license, has the side effect - intentional or not - of raising her celebrity status.

"The Commission confuses disclosure of the source code with disclosure of the internals," states Smith last Thursday, "and insists that it will fine the company if it fails to address this." Smith said the company will contest last week's Statement of Objections in an open oral hearing, the date for which is yet to be determined, though by law cannot be unjustly postponed. There, we may learn the full extent to which the Commission would like to see Windows made into an open source operating system, as well as perhaps be treated to some choice examples of the documentation of which a learned security expert, systems analyst, and university professor allegedly could not make any sense.