Open Source Weblog

"This case will determine the law that will govern when companies that have popular products must license their technology and intellectual property to direct competitors, even in the same market. These are the kinds of questions that will shape not only our industry, but frankly every industry for years to come," he said.

Another potential answer has been raised by the Free Software Foundation Europe: that by licensing the Windows source code, Microsoft is actually potentially making it more difficult for open source software developers and vendors to provide interoperability with Windows.

"We have not before taken the steps that we’re taking today, licensing [Windows] on this kind of reference basis to direct competitors, so that they can learn from it when they are creating the implementations of their own protocols, even in products that directly compete with our own," said Smith on Wednesday.

Not all direct competitors will be able to take advantage of the offer, however. Smith made it clear that Microsoft is still opposed to making its communications protocols available to open source software vendors (this is itself the focus of another appeal) and as such the Windows licensing offer would not be available to open source software developers.

Even if EC competition commissioner Neelie Kroes succeeds in her determination to ensure that open source software developers are able to take advantage of the remedy, they may well be put off by the potential threat of copyright, or patent, infringement.

"Because that source code is under Microsoft copyright, developers who have seen the source code cannot re-implement it in free software for fear of copyright violation," explained FSFE lawyer Carlo Piana.

Is it too much of a conspiracy theory to think that Microsoft has gone to all this trouble just to shut out open source competition? Perhaps, but Microsoft has certainly confused the picture with its Windows source code licensing plan - mixing source code that it is not required to make available with communications protocol specifications that it is.

While talking about opening its protocols and source code to direct competitors, Microsoft is also actively attempting to select which competitors it can offer its protocols to. Few would argue against the fact that Microsoft has the right to license its Windows source code to whoever it wants, but the protocol specification licensing is mandated by the commission's remedies.

Should a company that has been found guilty of breaking European competition law be allowed to choose who benefits from the remedies against it? Ultimately that will be for the Court of First Instance to decide.