So, here's to the Little Guy...
The look on Brad Smith's face said it all: Our legal strategies against Free Software need a fundamental re-think because a major battle front just caved in.
To understand the significance of the EU ruling this week is to know that the issue euphemistically called "server protocols" in the case refers to SAMBA -- the open source & Free Software code project that permits non-Microsoft machines to function in Microsoft Windows & Windows Server environments as if it is a Microsoft being. Microsoft is always changing its interfaces and the SAMBA project has been put in the perennial disadvantage of playing Wack-a-Mole to keep SAMBA working. SAMBA is not a "clone", as Microsoft wants you to believe; it is a distinct & lawful implementation of the Microsoft APIs.
So the Free Software Foundation Europe & the SAMBA Team founders should be permitted a moment of celebration. This was a momentous win for Free Software -- the first legal victory against Microsoft -- and there is all the more to relish given that Microsoft succeeded in buying out almost every competitor on the opposite side of the High Court...except SAMBA.
Sean Daly caught them on the day with a microphone and Ciaran O'Riordan & Sean provided the transcript to PJ at Groklaw, from which long post we copy the below excerpts and gratefully acknowledge the kind effort...
dramatis personae
Jeremy Allison is a co-founder and dominant contributor (next to Australian Andrew Tridgell) to SAMBA. Having quit Novell in opposition to that company's ill-advised and damaging merger with Microsoft, he now works for Google.
Georg Greve is the President and Founder of the Free Software Foundation Europe.
Volker Lendecke is a senior SAMBA developer and the author of the SMB file system for Linux; he is based in Germany.
Carlo Piana is a lawyer representing the Free Software Foundation in the case; he is based in Italy.
Sean Daly is a committed Free Software advocate and systems expert who contributes to Groklaw and other outlets; he is based in France.
This segment highlights that SAMBA is the only remaining competitor to Microsoft that requires equal programmatic access to the Microsoft hidden server protocols and, being Free Software, it is the code used by all vendors today to connect to Microsoft systems...
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Jeremy Allison: So the very interesting thing about the term
"clone projects" is that if you look at the agreement that Microsoft
had done with companies like Novell, and probably Xandros and Linspire
-- I've only seen the Novell agreement, I haven't seen the Xandros or
Linspire ones, the Novell ones are public by the way -- you will find
that they specifically exclude what Microsoft call in their legal
documents "clone products", which I think they include Samba among. So
yeah, there's this whole theory that they're trying to set up that
Samba is a clone of Windows and therefore is not available for
protection. The interesting thing about the licensing is that I think
what Microsoft will try and do... I believe this might have been what
some of the discussions with the Commission have already been about is
that they're trying to say "look, we have a licensing programme already
that we implemented in the US for the Department of Justice case" and
that's the MCPP, Microsoft Communications Protocol Program
licensing program, and what they were trying to do is to say "Well, why
don't we just extend that to cover the server-to-server stuff and then
we'll adopt that in the EU and let's settle the case. The problem with
the MCPP is that it's an abject failure in that if you look at the
companies that are licensed under that program, and the license terms
are explicitly designed to exclude free software, so they're designed
so there's a per-royalty basis, there's a time limit on the
implementation's validity - I think it's about five years - there's
royalties, there's all sorts of....
Volker Lendecke: There's per-seat licenses.
Jeremy Allison: Yeah, there's per-seat licenses, thanks Volker.
There's all sorts of methods to make this unusable in a free software
implementation.
Georg Greve: Which is the same trick they're trying permanently.
I mean, ultimately, the good part about... the reason why I think that
is no longer a feasible option, even to suggest, is the fact that we
have by now the conclusion that the remedies in the US were entirely
ineffective. Just recently, someone investigated this and found out
that the remedies had no effect whatsoever; therefore I think we can
safely say that those licensing terms don't help at all. But they've
tried it also, by modifying those kind of concepts in the same way,
because when you think about it, they should have published those
protocols long ago. After the interim measures case, ultimately, they
were obliged to publish, but they didn't. They always tried to come up
with new ways to delay, to obfuscate, and to make it legally impossible
to implement. They realize that Samba is the only competitor left. So,
in a way what they're now trying to do is to say "Oh no, we will give
our permission to competitors, but only those who don't actually
compete with us". (laughter)
Jeremy Allison: So the interesting thing... Brad Smith gave a
statement just after the judgement was announced, where he talked about
how the industry had changed and Microsoft was doing deals with Sun.
Sun had now become a Windows OEM. They had the Novell deal, et cetera.
What he didn't say was that both Sun and Novell, their workgroup server
implementation is Samba (laughter) which is being explicitly excluded
from the agreements that they've done with Novell. (laughter) And IBM's
workgroup server implementation is Samba, and Apple's workgroup server
implementation is Samba, and... y'know. You go into Fry's Electronics
in the US and any sub-$5,000 NAS box you will find in the place is
Samba. So essentially, anyone who actually really competes with them
has been excluded from these agreements.
Sean Daly: So, if I can ask a silly question, Microsoft usually
gets their way by showing up with their suitcase full of cash and
making a deal. I mean, they offered how many millions of dollars to RealNetworks to leave the case. Haven't they ever talked to you?
Jeremy Allison: They obviously didn't offer us enough. (laughter)
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Casual onlookers may be unaware that Microsoft paid all the corporations on the opposing side of this action to walk away. There is no way to do this with a Free Software project...
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Georg Greve: Plus, I mean, on an organizational level, yes, they did try to buy everyone out of the case that they could. They spent...
Volker Lendecke: And they were pretty successful.
Georg Greve: They spent remarkable money on this, I mean more than...
Jeremy Allison: Billions.
Georg Greve: 3.6 billion, I think, is the final count at some
point. For Sun, for Novell, for Real, for the CCIA. I mean, they were
all bought out of the case.
Jeremy Allison: A billion here, a billion there, soon you're talking about real money.
Carlo Piana: And much of the evidence was taken out of the case
because RealNetworks, which was one of the initial complainants,
withdrew. So their submission, the submission we relied upon all along
the case, was withdrawn just before the case came to an end. So, the
case was lame at some point, just because one of the parties was bought
out.
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The DoJ result was a "bought" and ineffectual decision and all other cases against Microsoft were always settled by Microsoft through payments to the complainants.
It is the nature of the Free Software to resist this kind of control. There is no organized entity to bribe; and if all the many distributed copyright holders were to together agree on a sum, there is no way to get the source code back or keep it from continuing to be re-distributed...
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Georg Greve: Yeah, I mean, it was -- you had this mental image
of Brad Smith hitting this brick wall, you know? It was just -- this
was the very first time that Microsoft has actually been stopped. The
first time that the law has persevered over Microsoft.
Jeremy Allison: Yeah.
Georg Greve: This is the very first time that actually a
competition authority has seen this through to the end and prevailed in
court against Microsoft. This is unique. It's absolutely historic in
that sense, so I think we do deserve a little bit of celebration.
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The Microsoft behavior which caused the fines in this case extends to many other areas of the software industry...
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Sean Daly: Well, you know, speaking about some of the new
frontiers, we all saw what happened with the ISO process for MS-OOXML.
Do you guys think there is any plan, or any interest in the European
Commission in going after Microsoft on this? I know that they were
waiting for the results of this decision before going further with some
complaints.
Georg Greve: There is a complaint by the ECIS, the European Committee for Interoperable Systems,
of November, I believe, last year, about Office and also Internet
issues. And the Commission, to my knowledge, has not yet made a
decision whether or not it will investigate that case. We, as FSFE,
Samba, and OpenOffice.org have already offered our technical expertise
and input as we've done for the previous case, to support that case.
And we do hope they will start that investigation. We definitely hope
they will do it. And we will stand by them as we've stood by them on
this case as well. We think that it's absolutely necessary to end this
sort of behavior in all areas. It's very important to understand that,
I mean, we've been talking here about interoperability, the workgroup
server market, the bundling for the Real Player, but that wasn't really
our main concern. These are just two areas of many areas in which
Microsoft exhibits the exact same behavior. Now, you know, the court
has today said, "This is unacceptable". But this is not only
unacceptable in these two areas, it's unacceptable in all areas.
Jeremy Allison: Because what they do is very, very effective. I
mean, the thing to remember is, yes, we won in court, but essentially
we're losing in the marketplace. Between the beginning of the case and
now, I think the desktop monopoly went down from, I think it was, 97%
to 92% -- and these are figures from the seven states, the California Group who filed with the DOJ --
Sean Daly: Right, the "rogue states."
Jeremy Allison: Yeah, the "rogue states", as it were. But the
workgroup server market has gone from, I think it was either 40% or 45%
-- I'd have to look -- it's now 70% Microsoft. So if you look at things
like Active Directory, Exchange servers, they are steamrolling in that
market. It's at the tipping point, where if something isn't done, if
this information isn't released and competitive products can be
created, they will own that market with a monopoly the same as the
desktops. Completely.
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