Update: Microsoft confident on eve of EU deadline

One day ahead of the deadline for explaining why it believes it has complied with the European Commission's antitrust ruling against it, Microsoft's top European lawyer said on Tuesday that the company is confident that it has met or exceeded all of the Commission's demands.

"What we have submitted to the Commission responds to all the requirements they have made known to us," Horacio Gutierrez, Microsoft Corp.'s general counsel for Europe, told journalists in Brussels.

Microsoft has until Wednesday to submit its formal response to the Commission's statement of objections, in which the European antitrust watchdog explained why it thinks Microsoft has failed to meet all its demands. However, the company has already explained much of its revised offer to Commission officials.

The Commission has said it will fine Microsoft up to €2 million ($2.4 million) per day if it decides that the company has not fully complied with its ruling. Gutierrez confirmed Tuesday that Microsoft will seek a formal hearing where it can present its case orally in addition to making a written submission.

That hearing is expected to take four to six weeks to organize. The Commission will then draw up a preliminary assessment as to whether Microsoft is in compliance. That assessment, and any decision to fine Microsoft, will have to be discussed by a committee of European Union member states' competition experts.

A final decision on the fines is therefore not expected before July.

Commenting on the technical documentation Microsoft has provided to the Commission, plus the offer of access to Microsoft source code. Gutierrez said Tuesday: "We feel good about the sufficiency, completeness and usability of the documentation."

In its March 2004 antitrust ruling, the Commission ordered Microsoft to grant access to the communications protocols for its workgroup server software so that rivals can develop products that interoperate smoothly with Microsoft's. The Commission has been highly critical of the documentation Microsoft submitted in December, and was unimpressed by a subsequent offer granting access to the underlying source code.

Gutierrez said Tuesday that Microsoft is also providing search and indexing tools to developers to help them navigate the documentation and source code the company has provided. This will allow them to accelerate their development work, he said.

The licensing terms that Microsoft is offering for the documentation and source code go "far beyond" what is typically available from similar licensing programs, he argued. It would provide a license for some patents and some copyrights, and would even allow some copyrighted code to be copied it if this would help to overcome functional constraints, he said.

The aim is to "give comfort to companies who took out licences that they would not be sued by Microsoft," Gutierrez said.

When Microsoft offered to license the source code in January the companies challenging Microsoft in the case were very sceptical about the terms.

"Leaving aside the copyright issue, the source code is simply not needed," said Thomas Vinje, a lawyer who is representing a number of Microsoft's opponents in the case including IBM, Oracle, Sun Microsystems, Red Hat, and Nokia.