EC Defends Interoperability, but Misses Bigger Picture

Here's an interesting move from the European Commission: The European Commission has opened a formal investigation to assess whether The MathWorks Inc., a U.S.-based software company, has distorted competition in the market for the design of...

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Here's an interesting move from the European Commission:

The European Commission has opened a formal investigation to assess whether The MathWorks Inc., a U.S.-based software company, has distorted competition in the market for the design of commercial control systems by preventing competitors from achieving interoperability with its products. The Commission will investigate whether by allegedly refusing to provide a competitor with end-user licences and interoperability information, the company has breached EU antitrust rules that prohibit the abuse of a dominant position. The opening of proceedings means that the Commission will examine the case as a matter of priority. It does not prejudge the outcome of the investigation.

The investigation follows a complaint alleging that MathWorks had refused to provide a competitor with end-user software licences and accompanying interoperability information for its flagship products "Simulink" and "MATLAB", thereby preventing it from lawfully reverse-engineering in order to achieve interoperability with these two products.

On the one hand, it's rather curious that the Commssion should be worrying about the mathematical software market (important though that is...); on the other, it's great to see it focussing on the apparently dry and technical issue of software interoperability. But of course, it has some form here, as the above press release points out:

As in the Microsoft case (see IP/04/382 and MEMO/04/70 and MEMO/07/359), the issue of software interoperability is central to this investigation. The Commission's investigation will focus on whether MathWorks' behaviour has prevented competitors from achieving interoperability with its widely used products and thereby hindered competition in breach of Article 102 TFEU. In this context, it is recalled that the European Directive 2009/24/EC on the legal protection of computer programmes also aims to foster interoperability by allowing for reverse-engineering for interoperability purposes provided that the software at issue was lawfully acquired.

Clearly, that ability to reverse-engineer is crucially important for open source, and so this latest move by the European Commission is very welcome. However, I do wonder whether it is missing the bigger picture here.

Sadly, the Commission seems to be moving towards FRAND rather than RF standards for the IT world (as it did with EIF v2); but if interface information is made available only under FRAND terms, it's not possible for free software projects to make use of it. This was precisely the issue in the previous interoperability case involving Microsoft. Here's what the FSFE wrote at the time:

The Decision of the DG Competition contains unclear statements, most of them caused by the abuse of the unclear word "Intellectual Property". The ambiguity of such word makes it difficult to judge if the Commission is asking Microsoft to give up copyright on parts of their source code or license to everybody its patents on the protocols and interfaces they have developed or even give up some valuable "trade secrets". An even bigger problem with the Decision is that it allows Microsoft to use so-called "RAND" (Reasonable And Not Discriminatory) licenses. As repeated often, the RAND clauses for using patented interfaces or protocols actually discriminate against Free Software implementations since, however cheap those licenses can be, they add a limit to the free distribution of software (making it non-free).

That was eventually resolved, albeit in a rather unsatisfactory way:

The Samba Team has decided to make use of Micrsoft's obligation under the European judgements. Through the Protocol Freedom Information Foundation (PFIF), network interoperability information has been requested and a one-time access fee of 10.000 EUR is being paid to give Samba team full access to important specifications.

What the European Commission should have done is insist that Microsoft made the interoperability information available under an RF licence. That's also the case in the current investigation, if free software programs are to make use of the information to offer compatible, competitive programs – and for the EU's overall policy on IT standards.

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