Microsoft's licence to kill

Let's start with some facts. Microsoft has been found guilty by the highest authorities in Europe — as in the US — of abusing its monopoly position. As a result, the company is required to stop that abuse. In this case, it has been told it must make server protocols available: by withholding that information, it has prevented companies from writing competitive software.

The guilty party has responded not by publishing the information but by producing a licence. This says that in exchange for lots of money, you can look at the documents and implement the protocols — crucially, including details covered by "claims of a patent or patent application that are necessarily infringed by implementing the [...] documentation".

So far, you don't need a licence to write software for Microsoft operating systems. There's always been the choice — pay up and become a buddy, or develop it independently by reverse engineering. Microsoft's control regime actively discourages the second path — illegally, as the EC has found — but has never been able to actually ban it.

No longer. Microsoft, in responding to the requirement to publish withheld information, is taking the opportunity to actually extend its abuse of power. The implications of the licence are that if you don't sign up you will be open to a patent suit — of course the patents aren't listed, but it's fair to assume that a company capable of patenting the idea of XML documents is not going to be restricted by outmoded concepts such as prior art or novelty.

There is no reason to believe that this is the last such licence. If Microsoft is saying that even using its protocols requires permission, then it is capable of extending that to its desktop and portable operating systems. The company is preparing to bring all applications software under its control — and needless to say, open source is explicitly banned.

The EC must act at once. It is already unhappy with the fees, but that is barely the start. It must insist that Microsoft makes the information available in a way that permits open source to interoperate in accordance with the judgement — and that Microsoft commits to keeping it that way. Even better, it could kill the EU software patent directive, the consequences of which have never been more starkly apparent.

The alternative is to see an extension of anti-competitive practice to dwarf everything that's gone before — a breathtaking contempt of court that calls into question our ability to apply the law. Bill Gates may be a British knight, but he is not yet emperor of Europe.