Has Europe really changed post the Microsoft decision?


So what are we to make of the original decision by the Court of First Instance to reject Microsoft's appeal, and now the 'settlement' between MS and the European Commission?

The original Court decision was clearly stunning in its rejection outright of the MS defence and those of its supporters. The fact that it was quite limited in terms of its applicability was ignored by many pundits. The most interesting was that a dominant ( monopoly) supplier could no longer restrict access to proprietary interoperability information.

Last weeks Settlement, however, was even more complex and potentially controversial. Most would welcome the decision not to fight further, and thus avoiding continuing uncertainty. The possible grounds were few so no surprises there. What was surprising were some of the terms. It was clear that Free/open source Software was strongly in the minds of the EC. That the term received so many mentions in its press release either says it has won a great victory for OSS or it had something to hide. The debate on this has raged since. Two aspects of the agreement. Firstly that a non-commercial developer can buy a €10k licence to gain access to MS proprietary information. And a commercial developer can take a patent licence for a 'mere' 0.4% of revenue – both substantially lower than previous MS claims. A win for OSS or a win for sustainability of monopoly?

On one side the 'settlement' would seem to completely miss the point on free software development. For some developers €10k would seem far from trivial. If MS really want to support OSS then surely they would open it up without charge? An alternative, possibly more pragmatic view,is that for a sizeable OSS development then this is a significant offer, since well over €10k of effort may have had to be spent on reverse engineering. And that with careful planning that single licenses would cover all developers contributing to the project.

On the patent licence its much more clear cut. It conflicts with the GPL, and for the majority of those working on OSS it would be an anathema since it gives apparent credence to software patents. But again more reserved observers would point out that the EC would have had its hands tied – since they had no remit to change current law, and no new precedent has been created.

So what do we conclude? Firstly that the debate on software patents is going to be awoken with a vengeance. Second that the current market position with respect to OSS in Europe has hardly changed one iota.

But at least OSS is getting the message across. We (OFE) have been fighting the OSS cause in Brussels for some time. A few weeks ago OFE was invited by the EC and Portuguese Presidency to formally respond on behalf of the 'open community' to the Ministerial Declaration at the bi-annual eGovernment Conference. A first for the community (20+ signed up to our statement) since in the past it has solely been EICTA. The positive, however, was that we were able to present our comments in front of a 1000+ senior governmental representatives. In reality whilst the Ministerial declaration had zero mention of OSS it did make a strong comment in favour of the 'openness of technical standards'.

But quite simply it is not enough to say the words and not deliver the action. In our statement we acknowledged the progress made but pointed out the opportunity being missed – referring them back to their own report, produced for them at the end of last year by the University of Maarstricht. In this the strong case for FLOSS was convincingly made and Europe given three options – Closed, 'where existing business practices are entrenched through legal and technical regulation' – Generic, 'where current mixed policies' continue and 'many of the opportunities it presents are missed' – Voluntary , where proactive action is taken.

So far all we have seen is more of the same, and absolutely no sign of a more advantageous business environment being created within which OSS can be supported. What next? Patents will be one area of determined debate, but so will the degree by which we see both the EC itself and individual governments acting' in-house' through its procurements. Some countries have very pro-active policies already, others - like the UK - have none. What is it about the UK on OSS and even Open Standards? I regularly attend EC meetings, conferences etc on these issues where every member state is represented – except one. Is there a missing link somewhere?


Do I hear the start of a campaign?



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