Microsoft Court Loss Might Not Help Open Source, Samba Leader Says

Unless Microsoft licenses its communication protocols differently, open-source projects can't make much use of them.
Unless the European court that upheld European sanctions against Microsoft demands different remedies than U.S. courts did, it won't do much to level the playing field for open-source products, one open-source advocate says.

The European sanctions direct Microsoft to offer a version of Windows without Media Player included. The more-important sanction, says Jeremy Allison, co-leader of the Samba open-source project , directs Microsoft to make Windows Server communications protocols available through licensing agreements. Samba software translates files between Windows and Linux.

After struggles with the U.S. Justice Department, Microsoft made Windows client protocols available in the U.S. as directed. But the way it implemented licensing agreements was to charge a royalty on each product shipped using the protocols. The move effectively prevented the inclusion of the protocols in open-source code, since the General Public License that governs Linux, Samba, and other open-source code prohibits including anything that requires a royalty payment, Allison says.

"Don't make the same mistake in Europe that was made in the U.S.," Allison says of the European Court of the First Instance, the European Union's second-highest court, which upheld sanctions Tuesday. Microsoft had appealed a lower court's March ruling, arguing that sanctions shouldn't be imposed until the appeals process had been exhausted. The Court of the First Instance disagreed, saying the sanctions must be imposed immediately. Allison submitted a deposition in the case through the Free Software Foundation of Europe, arguing against delay.

Microsoft said it will "take a close look at the order before deciding on our next steps" in a statement posted on its Web site. "We believe the code-removal remedy, obliging Microsoft to release a degraded version of the Windows operating system, will be harmful to customers and competition." It didn't address how it might license Windows Server protocols.

Allison says winning court cases isn't the same as making gains against Microsoft control of its protocols in the marketplace. Microsoft complies with the decisions but does so in a way that slams the door on potential competition from open-source code, he claims.

An alternative to the royalty system would be for Microsoft to receive lump-sum payments for use of its protocols. It might, for example, charge a one-time fee of $100,000 to a large technology vendor that wants to include the protocols in a product set. A company could then ship as many copies of third-party software products and open-source code, such as Samba, as it wants and allow them to use the protocols.

Companies such as Apple Computer, Hewlett-Packard, IBM, Quantum, and Sun Microsystems already include Samba in their product sets. Samba allows Linux to serve as a file-and-print server from groups of Windows desktops, and coordinates directory activity as a substitute Windows NT 4.0 domain server, managing groups of Windows desktops.

"The Samba project can't afford to license the protocols for $100,000, but large companies can," Allison says.

In response to U.S. court rulings, Microsoft set up the Microsoft Communications Protocol Program to license protocols under royalty payment plans.

Allison says Microsoft's cooperation with the Samba development team ended in 1999 as Linux' popularity became a threat in the server market. Now the team accomplishes compatibility with Windows systems through "network analysis"--a more-elegant term than "reverse engineering," which used to be used to describe Samba's ability to achieve compatibility.

The open-source project consists of 20 to 30 developers, many of them in Europe, who contribute code to Samba. The group plans in 2005 to provide compatibility for open-source code with Microsoft's Active Directory, Allison says.

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