The EC's anti-trust remedies against Microsoft are a failure thanks to the software giant's ability to choose licensing terms, a rival has claimed.

A lawyer for the Free Software Foundation Europe (FSFE) is furious that Microsoft is imposing unfair terms on the release and use of its software protocols, and claims that they effectively make it impossible for open-source projects to make use of them.

"The terms provide for certain conditions which are unacceptable or impossible for free software to comply with," said Carlo Piana. One of these is per-copy licensing. "Free software cannot control the number of copies that are made," Piana pointed out.

As such, the draft licence, drawn up by Microsoft and awaiting approval by EC officials, is incompatible with the General Public Licence (GPL) that most open-source projects follow.

The demand that Microsoft open up its communication protocols so other companies could produce software that works seamlessly with Microsoft's products was one of three prongs on which the EU hoped to spear Microsoft's monopolistic market abuse.

The first - a 497 million euro fine - has been dismissed as chicken-feed since it represents less than one-fifth of Microsoft's profit in the last quarter alone. The second - the requirement for Microsoft to release a version of Windows without its Media Player - has also fallen flat on its face, with PC vendors saying they have no plans to stock the equally priced OS. Microsoft's plan to give it the derogatory name "Reduced Media Edition" have been heavily criticised by the EC.

Now, the opening up Microsoft proprietary code may also be a failure thanks to determined efforts by the company's executives. "The settlement had the goal of re-establishing competition," said a FSFE spokesman. But he said, open-source project Samba "is the only remaining competitor". He continued: "By excluding the GPL, they simply try to bypass the European Commission decision."

On top of that, updating existing programs to handle newer versions of Microsoft's protocols is a far harder task, according to Piana. "What took six months with the previous protocols would now take two years or more, because Microsoft has designed the protocols in a difficult way, an unnecessarily difficult way," Piana said.
While such a process would be legal for any other company, Microsoft with in its near-monopoly position, has a special obligation not to raise barriers to trade, Piana argued. "We have already spoken to the Commission. We have made clear this sort of license would be unacceptable," he said.

Microsoft, for its part, said that when it licenses its protocols, the terms are fair to everyone. "Whoever wants to take this licence [for the workgroup server protocols], the terms stay the same for all," said Dirk Delmartino, a spokesman for Microsoft in Brussels.