Microsoft has launched yet another appeal against the European Commission’s decision that the company broke antitrust laws here.
"Microsoft has filed an application for an annulment with the Court of First Instance, specifically concerning the issue of broad licences for the source code of communication protocols," said Microsoft spokesman Tom Brookes.
"This filing is the result of the agreement reached with the Commission in June to put this particular issue to the court for guidance and to avoid further delay in the process," Brookes said.
The decision to file a new appeal follows a letter sent by the European Commission to Microsoft on June 1, saying that it did not accept the terms under which the company was prepared to make available the communication protocols for its workgroup server software.
Microsoft won’t share with open source
Microsoft has refused to allow its source code to be licensed under the General Public License (GPL), which gives users the right, among other things, to freely modify and redistribute software. Much open-source software is distributed under the GPL.
The Commission, the European Union's executive branch and market regulatory body, agreed that this issue would be settled by the European Court of First Instance, which is hearing Microsoft's appeal of the antitrust ruling.
"We are taking this step so the court can begin its review of this issue now, given its far-reaching implications for the protection of our intellectual property rights around the world," Brookes said.
As the issue of underlying source code was not explicitly mentioned in the Commission's initial antitrust ruling of March 2004, nor in the company's appeal lodged last year, Microsoft wants to make sure the court focuses on this aspect.
In June the Commission announced that Microsoft had agreed to make a number of changes to the terms on which it grants access to its protocols, though the company still did not agree to license the protocols for use in open-source products.
The Commission maintained, nevertheless, that if the court upheld the Commission's ruling that protocols should be available, Microsoft should be publishable under GPL terms, provided they did not embody "innovations."
Europe quizzes Microsoft’s rivals
Meanwhile, the Commission continues to seek response from Microsoft rivals and other industry players about the terms that Microsoft has offered, Commission spokesman Jonathan Todd said on Wednesday.
Todd said that an independent monitoring trustee or third-party assessor, who will have the job of deciding whether Microsoft is complying with the Commission ruling, would also evaluate which parts of the protocols were innovations and identify whether the fees Microsoft is planning to charge for some of the protocols are reasonable.
The Commission and Microsoft have not yet agreed on who should be appointed as trustee, Todd said.
Hearings on Microsoft's appeals are not expected to start until next year, partly because a decision was taken for the case to be heard by the Grand Chamber of the Court of First Instance. This move required a change in the judge presiding over the appeal and a delay to the process of preparation.
The hearing and final ruling are expected to take up to four years.