The Microsoft-Samba agreement is by far the most important tangible outcome of the European Microsoft case. The EC’s other remedial order in the case, which required Microsoft to create a version of Windows without Windows Media Player, was an embarrassing failure. The Samba agreement, however, is significant because it requires Microsoft to provide, to its most important rival in the server market, detailed documentation of its communications protocols, under terms that allow use of the information in open source development and distribution. There is good reason to believe that Samba will be able to use the information to compete more effectively with Microsoft because Samba’s development methods depend specifically on analysis of communications protocols. In a closely related development, Microsoft has now published all of the covered protocols on its website. While these actions will certainly enhance interoperability, they may also facilitate cloning and thus devalue Microsoft’s intellectual property. Thus, it remains unclear whether the license will enhance or inhibit dynamic, innovative competition in the long run.
In this short Article, we assess what the Microsoft-Samba license might mean, both for the market and for antitrust policy. In doing so, we rely on published sources and on interviews with some of the key players in the negotiations. On the Microsoft side, we spoke to David Heiner, Microsoft’s lead in-house antitrust counsel, and to Craig Shank, its lead negotiator for the Samba license. On Samba’s side, we spoke to Eben Moglen, a professor at Columbia Law School, whose Software Freedom Law Center provided legal representation for Samba.
William H. Page & Seldon J. Childers, Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License, 102 Nw. U. L. Rev. Colloquy 332 (2008), available at http://scholarship.law.ufl.edu/facultypub/207. Also available at http://www.law.northwestern.edu/lawreview/colloquy/2008/16/