Boo Microsoft, Hooray EU?

I heard a juicy rumor the other day - Did the EU Competition Commissioner fine Microsoft to keep her department in work?

First, a little back story.

In early July, the EU Commission fined Microsoft €280.5 million for not providing adequate documentation for its workgroup servers. At the time, the Competition Commissioner, Neelie Kroes, stated: “The EU Commission cannot allow such illegal conduct to continue indefinitely. No company is above the law.”

Now, Microsoft claimed that it had been cooperating and that the EU had been unclear as to what it wanted up until April 2006. Even Ms Kroes noted that, since June 20th, Microsoft has been doing “an extremely good job, and 50 percent of the documents are there”, based on the opinion of the independent monitoring trustee, Prof. Neil Barrett.

If this so, then the fine seems both arbitrary and harsh. Analysts from Ovum (a UK-based research group) definately think so, according to a report in ITWire.

So why interrupt this progress to fine them?

Could it be that someone realized that Microsoft might actual be compliant in a couple months time? That the opportunity to fine them was slipping away?

€280.5 million is an awful lot of money, enough to cover Ms. Kroes’s budget for 2 or 3 years. The Microsoft case, as a cause célèbre, also elevates her department’s profile.

So is this the reason for the fine?

That Ms Kroes’s department would have been downsized if not for this case? That’s what the EU Rota blog seems to think, and it’s also brought up in the comments for this story on Mini-Microsoft.

This rumor would appear to make perfect sense, and it does simplify who’s right and who’s wrong in this case, which saved me from trawling through an awful lot of commentary to figure it out for myself.

However, I felt slightly guilty for over simplifying.

So I started trawling. Some of the things I learned:

• Jeremy Allison, a lead Samba developer, commented that the ruling would have been more effective if the EC had not fined Microsoft, but had instead forced it to make the server protocols freely available. He also feels strongly about access to the source code. “The source code itself is the specification . The level of detail required to interoperate successfully is simply not documentable - it would produce a stack of paper so high you might as well publish the source code“.He also has a specific requirement for IDL descriptions for remote procedure calls - “If these IDL descriptions were published, open and equal interoperability with Microsoft products would be greatly enhanced (although still not perfect).“
• Brad Smith, Microsoft’s general counsel, tells us “The Commission confuses disclosure of the source code with disclosure of the internals and insists that it will fine the company if it fails to address this.“, though he did announce that Microsoft would license the source code because “the source code is the best documentation“.However, according to a secret “statement of objections” issued late last year by the EC and obtained by the Wall Street Journal, the EU specifically said it had no interest in Microsoft’s opening up the source code to Windows for licensing.
• Microsoft says that the protocols include valuable patents and that it should be able to charge for their use.
• Microsoft’s total lawsuit and government fine payouts amount to around $9 billion.
• Opening these protocols would threaten Microsoft’s file and print business. This includes Windows Storage Server, which is its latest attempt to gain control in a market where competitors like Samba dominate.
• Prof. Neil Barrett is primarily an author and computer security consultant, and has difficulty with concepts like “context handles” and “network objects”. In one interview he says “If I were to think of myself from a career point of view, I’m a writer, I’m a thinker.” and “But if I want to be remembered for something, I would say writing is what I enjoy most: so, writing.“However, he was nominated by Microsoft. Furthermore, IBM, Oracle, and Sun have also looked at the documentation and were similarly unimpressed.
• “It’s too early at this stage to give any indication of whether there will be another payment, another penalty, and if there is to be another penalty how much it would be,” says EU Commission spokesman Michael Mann.

See? Trying to work it out yourself is hard.

I was left no clearer on how important the Microsoft case is to Ms. Kroes’s department.

I can’t just ring up and ask her.

However, after a little more digging around, it turns out that your local MEP can do just that, in the form of a Parliamentary question, particularly if your local MEP is Mogens Camre, who in April asked:

… Can the Commission please state what proportion of the budget has been spent on the Microsoft case since its inception? To what extent has the Commission outsourced parts of the legal work to Microsoft’s competitors? To what extent the has work on the case impacted on the Competition DG’s other work relating to the investigation of other European competition issues?

Ms Kroes responded:

The Commission does not keep detailed records of the amount of budget resources allocated for each investigation under Articles 81 and 82 of the EC Treaty. Since the first complaint in Case COMP/C‑3/37.792 was received in 1998, a varying number of Commission staff members, ranging from three to six, have been allocated to the case on a part-time basis. This does not have any adverse impact on any other priority case.

Which nixes that rumor.

Out of a department of 22 people (not counting drivers), I wouldn’t consider 6 staff members working part time excessive, let alone vital to preserving the department’s raison d’être. While the fine may be helpful to Ms Kroes, it certainly doesn’t validate her department.
Though it was fun while it lasted.