Microsoft began using the MP3 format in Windows Media Player in
1998. Alcatel-Lucent filed its lawsuit in 2000. The FSF says
“they would have been safe” if they had chosen Ogg Vorbis.
That overlooks the inconvenient fact that the first stable version
of the Ogg Vorbis reference software (version 1.0) was not
released until July 2002. It’s hard to imagine how
Microsoft could have chosen the “safe” open-source option when
it didn’t exist yet.