Microsoft may not be off the hook with the European Commission (EC), despite this week's sweeping promise to license Windows Server communications source code.
An EC spokesperson has reportedly called it "premature" to assume that access alone to the code would solve the problem of Microsoft's failure to comply.
Microsoft had hyped its licensing offer, by claiming the company is "going far beyond European Commission's March 2004 decision and its legal obligations to provide technical specifications".
The Commission in March 2004 had ruled that Microsoft had abused its dominant market position on the desktop to harm the competition in low-end servers and media players.
"The company hopes to dodge the EC's threatened $2.4m-a-day fine for non-compliance with the EC's ruling that it open up Windows. Microsoft's offer would allow software developers to view, but not alter, the Windows source code.
Unfortunately for Microsoft, the EC seems to be aware of the difficulties with a similar Microsoft program in the US - the Microsoft Communications Protocols Program (MCPP) - covering the release of Windows communications protocols.
MCPP was created by Microsoft in August 2002 to demonstrate "good will" and help minimize the impact of the, then, pending anti-trust settlement with the US Department of Justice (DoJ) and prosecuting states.
It has been consistently criticized and "substantially" revised during its four-year life, with Microsoft compelled to reduce the price it charged ISVs to license Windows protocols, to eliminate nondisclosure agreements (NDAs) with ISVs, and to slash the amount of paperwork associated with licensing.
MCPP came in for its latest criticism this week, ahead of the company's offer to the EC, with the DoJ accusing Microsoft of having "fallen significantly behind" in submitting technical documentation to officials overseeing its program.
In a new twist, Microsoft said it would offer the DoJ the same terms for the MCPP for licensing of Windows protocols as it has proposed in Europe on sever protocols to "foster consistency between both licensing programs." ®
European Commission headquarters in Brussels 
In a move aimed to prevent fines stemming from its antitrust lawsuit filed by the European Commission (EC), Microsoft announced that it will be releasing portions of the source code to its Windows operating system. 

The EC ruled in March 2004 that Microsoft had abused its position in the low-end server and media player market, and required that Microsoft "disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers".  Microsoft reacted by making available 12,000 pages of technical documentation and up to 500 hours of technical support, but the EC came to the conclusion that it was not enough.

Announcing that "we are putting our most valuable intellectual property on the table so we can put technical compliance issues to rest", Microsoft General Counsel Brad Smith asserted that Microsoft would be superseding the EC's requirements as a sign of good faith.  "While we are confident that we are presently in full compliance with the Decision, we wish to dispel any notion that Microsoft’s technical documents are insufficient", said Smith.
A Microsoft office at the Redmond Campus
The EC responded in a memo that it will study Microsoft's reply to the Statement of Objections once it receives the full details.  However, EC Competition Commissioner spokesman Jonathan Todd commented that "it would be premature to conclude access to the source code would resolve the problem of the lack of compliance with our decision."

A similar offer was made by Microsoft in August 2002 during its antitrust lawsuit filed by the United States Department of Justice and several states' Attorneys General.  The resulting "Microsoft Communications Protocols Program" had suffered continuous criticism regarding excessive cost, paperwork, and non-disclosure agreements.  It is unclear at this time if Microsoft's planned "Work Group Server Protocol Program" will suffer from the same issues if accepted by the EC.

Microsoft is expected to return to the EC courts in April.