Thursday, July 3, 2008
Posted by D. Daniel Sokol
William Page of the University of Florida Levin College of Law and Seldon Childers have authored the excellent forthcoming Measuring Compliance with Compulsory Licensing Remedies in the American Microsoft Case.
ABSTRACT: Section III.E of the final judgments in the American Microsoft case requires Microsoft to "make available" to software developers certain communications protocols that Windows client operating systems use to interoperate with Microsoft's server operating systems. This provision has been by far the most difficult and costly to implement, primarily because of questions about the quality of Microsoft's documentation of the protocols. The plaintiffs' technical experts, in testing the documentation, have found numerous "issues," which they have asked Microsoft to resolve. Because of accumulation of unresolved issues, the parties agreed in 2006 to extend ý III.E for up to five more years. Microsoft's continuing failure to resolve the plaintiffs' issues, despite its commitment of enormous resources to the project, led the district judge in January 2008 to extend the other provisions in judgments for at least two years. Paradoxically, however, there is no evidence that software developers cannot use the protocols because of the issues generated in the plaintiffs' testing program. In this article, we argue that the court abandon the unresolved issues as its standard of compliance and ask instead whether Microsoft has provided documentation and technical support that meet the standards of the market and needs of real-world developers.