Brussels (Belgium) - In perhaps one of the most historic "in your face" responses to a legislative mandate in the history of computing, if not industrial history in general, Microsoft has stated this morning it will license Windows source code, presumably to outside developers seeking to make their products interoperable with Windows. It is doing so, the company said this morning, "in order to address categorically all of the issues raised by the Commission's December 22, 2005 Statement of Objections. That document asserted that Microsoft's prior technical documentation provided insufficient information to enable licensees to implement successfully certain Windows Server communications protocols."

The exact scope of the licensing arrangement Microsoft plans to make, is unclear based on a read of this morning's statement alone. But evidently, Microsoft was made so acutely aware of the fact that it could not comply with a European Commission directive to provide documents explaining how others could utilize Windows for interoperability purposes, that it felt its only choice was to supply concerned parties with the actual source code itself. Some could say Microsoft may be strengthening its position by appearing to reverse its course on proprietary intellectual property. By, in effect, asking developers to try to make sense of Windows source code for themselves, Microsoft may actually buy itself some time, while the outside world puzzles over what it is that makes Windows work (and, sometimes, not work).

Brad Smith, the company's SVP and general counsel, is quoted this morning as saying, "Today we are putting our most valuable intellectual property on the table so we can put technical compliance issues to rest and move forward with a serious discussion about the substance of this case. The Windows source code is the ultimate documentation of Windows Server technologies. With this step our goal is to resolve all questions about the sufficiency of our technical documentation."

In other words, world, here you go, and see if you can make any better sense of it than we can.

This morning's statement refers to the issuing of so-called "reference licenses," which appears to indicate that Microsoft will mandate that licensees only use the code for reference purposes, not reverse-engineering. This is far from making Windows "open source," and just as far from effectively making Windows internals public knowledge. But for the first time, this new program would apparently enable a company that wants to know how to make a device or a program "interoperable" with Windows - meaning, communicating with Windows software components using Microsoft's protocols - to simply issue a request and have it be granted.

Buried in the statement is the fact that Microsoft will probably not be making all Windows source code available, but rather that portion which implements the company's communications protocols. Specifically, it refers to "all of the Windows Server source code that implements all of the communications protocols covered by the 2004 Decision."

This is where the company may be treading on dangerous ground. The European Commission (in the EU's bicameral legislature, the counterpart of the US Senate, though with some legislative powers that in America would be entrusted to judicial authorities) has thus far been successful in designating that the documentation Microsoft has issued thus far, in compliance with its March 2004 antitrust directive, has been unfathomable. If the same legislative body is allowed to follow its own interpretation of "all of the Windows Server source code that implements...communications protocols," the same persons who couldn't make sense of Microsoft's use of English may believe themselves entrusted with the power to designate what portions of Windows Server uses communications protocols, and what portions don't.

And since Microsoft, in its own public documentation in the past, has characterized all of Windows as being inter-communicative, the EC may be tempted to draw those boundaries with a very broad - and perhaps blind - stroke.

In December 2004, Microsoft initiated what a "Work Group Server Protocol Program," in order to make certain communications protocol technologies available to interested parties, for royalty fees, in compliance with the EC's March 2004 directive. Microsoft describes the program in this way: "This Program makes available, under license, the communications protocols that are implemented in Windows Server Operating Systems and that are used by a Windows Work Group Server to deliver file and print services and group and user administration services (including the Windows Domain Controller Services, Active Directory services, and Group Policy services) to Windows Work Group Networks."

If that's the portion whose source code Microsoft intends to make public, then that's certainly not all of Windows. Today, Microsoft is arguing that opening its source code (presumably, at least, this portion of it) will more than comply with the EC's directive. But this assumes two things: 1) that licensees will be able to make any sense of the source code; 2) that the EC won't counter-argue that licensees would need to see the rest of the source code, in order to get a better sense of the context of that portion Microsoft is making available. Who gets to determine the limitations upon this source code license? This may be up to the European Union's Court of First Instance to decide; that court is already reviewing the merits of the EC's original directive.

Another unanswered question concerns the geographical boundaries of this licensing program. Today's statement indicates that this licensing move comes in response to the demands of Europe, but it does not employ language that would appear to limit licenses to European companies. Conceivably, if only European companies were permitted to obtain licenses, American antitrust arbiters might object. On the other hand, if the licensing program will indeed be global and blind to country of origin, then European legislators - who are, like their US counterparts, elected officials - may not be able to claim this victory for themselves, which could trigger objections to certain licensing terms that may arise.

In any event, this could be the biggest single gamble in Microsoft's history.