Europe: Microsoft's behavior has changed, interop docs already complete

In an historic, if muffled, admission that Microsoft has not only made progress in its compliance with European Commission directives but may have been making progress all along, the EC this morning, Brussels time, released a statement saying it no longer needs to directly monitor Microsoft's compliance with the terms of its 2004 Statement of Objections.

"In light of changes in Microsoft's behaviour, the increased opportunity for third parties to exercise their rights directly before national courts and experience gained since the adoption of the 2004 Decision," this morning's statement reads, "the Commission no longer requires a full time monitoring trustee to assess Microsoft's compliance. In future, the Commission intends to rely on the ad hoc assistance of technical consultants.

"Microsoft has an ongoing obligation to supply complete and accurate interoperability information as specified in the Commission's 2004 Microsoft Decision," the EC goes on. "However, given that the original set of interoperability information has already been documented by Microsoft, increased opportunities through private enforcement provisions in Microsoft's license agreements for third parties to exercise their rights directly before national courts, and experience gained since the adoption of the 2004 Decision, the nature of the technical assistance that the Commission requires is now of a more ad hoc character."

Which means, the EC will accept some input from some folks from time to time. But it will release Prof. Neil Barrett, the independent security consultant who was appointed in 2005 to ensure compliance, and who was responsible for reviewing Microsoft's documentation of its interoperability protocols.

The 2004 objection was about interoperability -- that Microsoft produced an operating system with the objective of enabling other parties to work with it, but without documenting its communications protocols to an extent that anyone (including, for example, a Linux producer) could produce software that communicates with it according to protocol over a network. It was that lack of specificity on Microsoft's part that set up a kind of artificial barrier between Windows networks and others.

After the appointment of Prof. Barrett, the EC raised several objections in the intervening months about the interoperability documentation that Microsoft was producing: first, that there was not enough of it; then, there was too much of it that didn't make any sense to Prof. Barrett; and later -- in the most surprising twist of all -- that it didn't seem to be relevant because it wasn't novel enough. This despite the fact that the same documentation, which was also being produced for the US Dept. of Justice in accordance with Microsoft's November 2001 settlement agreement, for the most part met with its approval.

But today's statement from the Commission includes an extraordinary word, appearing in this phrase: "the original set of interoperability information has already been documented by Microsoft." This is the first official admission by the EC that not only has Microsoft apparently met its 2004 obligation, it did so at some time in the past.

The EC said it may enlist the help of technical consultants through service contracts "from time to time" to check on the status of Microsoft's ongoing compliance.

The 2004 Statement of Objections is a separate affair from the Statement issued in January, which concerns the EC's objections to Microsoft continuing to bundle Internet Explorer with Windows. The Commission's decision to begin drawing down on the 2004 affair could conceivably give it an opportunity to reassemble its troops to fight on a new front (new for the EC, that is), in which case, the whole dreary mess over Microsoft obstructing Netscape could be dredged up again.

10:15 am EST March 4, 2009 - This morning from its Brussels office, Microsoft released the following statement in response to the European Commission's decision: "We welcome the Commission's announcement. We remain committed to ensuring that Microsoft is in full compliance with European law and our obligations as established by the European Court of First Instance in its September 2007 ruling and we will continue to cooperate with the Commission and its experts."