DOJ issues support for Microsoft efforts to comply with EC directive

Washington (DC) - In a Joint Status Report released late yesterday, the US Justice Dept., writing also on behalf of states such as New York who remain plaintiffs in the ongoing antitrust matter with Microsoft, expressed its support for the company’s efforts to comply with a European Commission directive ordering the company to fully document and explain portions of its Windows source code.

In the closest thing to an open letter to the EC that one could expect without explicitly addressing it to "Brussels, Belgium," the DOJ’s Antitrust Division, led by Renata B. Hesse, writes for the US District Court, "As the Court may be aware from recent press reports, within the past two weeks Microsoft has expressed to both Plaintiffs and enforcement officials in the European Union a willingness to license its Windows server source code at no additional cost to licensees of each jurisdiction’s respective protocol licensing program. This proposal from Microsoft resulted, in part, from efforts to address Plaintiffs’ concerns - expressed in Plaintiffs’ January 23, 2006 filing - about Microsoft’s ability to translate the TC’s [technical committee’s] work on the technical documentation into improved documentation for MCPP [Microsoft Communications Protocol Program] licensees in a timely fashion." The TC is the antitrust division’s appointed Technical Committee, led by Craig Hunt, a consultant with the California Group consultancy.

"MCPP" refers to the communications protocols which enable software both inside and outside the realm of Windows, to communicate to Windows and the components it manages. In last December’s Statement of Objections, the EC - the higher legislative house in the EU government, analogous to the US Senate - demanded that Microsoft comply with a 2004 order to turn over documentation which effectively and thoroughly explains how MCPP protocols work, for the benefit of anyone who might want to make use of them. Though that deadline was extended once, the EC stated yesterday it is denying Microsoft any further extensions.

Late last month, Microsoft offered to extend its MCPP licensing program so that European licensees may be granted access to those parts of Windows source code that pertain to MCPP. EC officials have since responded by saying that the code itself is not self-documenting nor self-explaining, and thus Microsoft’s offer cannot be construed as complying with the EC directive. 

Yesterday’s Joint Status Report clearly disagrees. "Source code is the human-readable form of Microsoft’s protocol technology," writes the Antitrust Division, on behalf of the US and participating States. "By reviewing the source code, licensees will be able to see precisely how Microsoft’s protocols are built and function. This should substantially assist licensees in writing their own source code to implement these protocols."

In an earlier section of the report, the Antitrust Division cites its own example with the TC, clearly appearing to offer it as a blueprint for a possible resolution to the EC matter.

"Although Plaintiffs have not concluded their evaluation of the proposed terms," the Antitrust Division writes, "Plaintiffs believe that Microsoft’s draft could make it possible for licensees to use the source code without undue fear of additional intellectual property liability...In Plaintiffs’ view, Microsoft’s agreement to license its source code is a constructive proposal that addresses many of Plaintiffs’ concerns with the technical documentation. Plaintiffs’ initial assessment is that the source code will, in combination with the technical documentation and technical support provided by Microsoft, assist MCPP licensees in implementing the MCPP protocols by answering questions that licensees may have based on review of the relevant technical documentation. At the same time, however, Plaintiffs will need to continue their efforts to ensure that the technical documentation is complete, accurate, and usable, as the source code will not, by itself, readily supply every answer to every issue that licensees may face in implementing MCPP protocols."

The 20-page document goes on to illustrate ways in which the DOJ’s own working relationship with Craig Hunt and the TC could be modified, in order to address concerns that may arise about whether Microsoft’s protocols are adequately explained. The Division writes that the TC’s role in the future will be to distinguish between two types of valid concerns : one which could easily be resolved if the complainant would just simply look more closely at the source code, or go online ; and those that can only be addressed when the TC makes Microsoft aware of the issue, works with the company to resolve the issue, and then make appropriate changes to the documentation as necessary.

Microsoft’s performance in responding to the second class of issue will be monitored in monthly reports. But in addition to broadening Microsoft’s channel of communication with the TC, as part of the Division’s effort to streamline the compliance process, it also suggests an approach so simple that it’s puzzling why it hasn’t been suggested before. Rather than limit communications between the TC and Microsoft to each other, for the first time, the TC will be permitted to reference 1) the same Windows source code that a complainant is seeing, and 2) outside sources of documentation. In other words, if someone else out there has a blog or an article or a book that addresses the same problem and solves it, that solution can be referenced directly, rather than try to make Microsoft solve the problem the same way in a white-box environment. "The revised approach will more closely mirror the real world situation of licensees," writes the Division, "and enable the TC to resolve issues more quickly with less consultation with Microsoft."

Elsewhere in the Joint Status Report, the Antitrust Division mentions it has received a complaint from an unnamed OEM, about the customizability of the so-called "Welcome Center" feature that Microsoft is adding to its forthcoming Windows Vista. This feature addresses new users with fresh installations, and is purported to give the user options for software downloads and enhancements, offered by selected Microsoft partners. The Report did not go into detail about the nature of the complaint, and stated that the Division is busy reviewing its merits before it decides whether to proceed further. But a report in this morning’s Seattle Times quotes Microsoft spokesperson Jack Evans as saying the company had already discussed the design of Welcome Center with all of the top 20 computer manufacturers, and that "nearly all of them" are satisfied - effectively not ruling out anyone on that list from having been the unnamed complainant.

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