[A2k] [full text] FSFE to EC: Don't waste an opportunity with a hasty
deal
Karsten Gerloff
Karsten Gerloff <gerloff@fsfeurope.org>
Mon Sep 28 15:41:02 2009
--
On Mon, Sep 28, 2009 at 06:55:44PM +0200, Karsten Gerloff wrote:
> I've published an analysis of the problems from FSFE's point of
> view:
>
> http://blogs.fsfe.org/gerloff/?p=3D263
>
> I'm looking forward to your comments!
Here is the full text of the article. Sorry for the extra post.
best,
Karsten
FSFE to EC: Don=E2=80=99t waste an opportunity with a hasty deal
High Noon in Brussels. At the end of her term, competition Commissioner Nee=
lie
Kroes is wrapping up two open cases against Microsoft. The company offered =
to
settle in July 2009.
FSFE is involved in both of cases. We are concerned that the Commission may=
end
up reversing years of successful antitrust work if Neelie Kroes settles for=
far
too little in order to close a deal, any deal. That would mean that Europea=
ns
remain stuck with the present Microsoft monopoly in most areas of the deskt=
op.
Even worse, that monopoly would have the Commission=E2=80=99s official seal=
of
approval, effectively ruining many years of outstanding work by Ms Kroes an=
d
her team.
The first of the two cases is the so-called =E2=80=9Cbrowser case=E2=80=9D.=
Web browser maker
Opera filed a formal complaint with the European Commission in 2007 on
Microsoft=E2=80=99s abuse of web standards, as well as the company=E2=80=99=
s practice of tying
its Internet Explorer (IE) browser to its operating system. The Commission
investigated, and formally opened proceedings against Microsoft in January
2009.
FSFE joined this case as an interested third party, in order to fight the w=
ay
in which Microsoft uses proprietary extensions to web standards in order to
unlawfully segment the Internet. So we can give input and advice to the
Commission, and take part in the official hearings. This is similar to the =
role
we had in other antitrust cases against Microsoft, most notably the Samba c=
ase,
which ended in a resounding victory for Free Software. Unfortunately, the
European Commission decided to drop the question of standards from its
investigation, following up only on the force-feeding of IE to Windows user=
s.
The second case is about interoperability. Microsoft refuses to let competi=
tors
make their software work with many of the company=E2=80=99s desktop applica=
tions, such
as Outlook/Exchange, Office, SharePoint and .Net. Here, the European Commit=
tee
for Interoperable Systems (ECIS) submitted a complaint in 2006, but the
Commission hasn=E2=80=99t formally opened a case yet. If it ever does so, F=
SFE will
represent the interests of Free Software in the proceedings.
Browser case: what=E2=80=99s wrong with Microsoft=E2=80=99s proposal for a =
settlement?
What would real competition in the browser market mean? Users could freely =
and
easily choose among a wide variety of browsers, rather than having one prog=
ram
imposed on them. Installing and using any browser on a Windows system would=
be
just as easy as using IE. No lengthy download and installation procedures, =
no
fiddling with setup menus, and no need to tell every single application tha=
t it
should use your preferred browser rather than the one that happens to be ma=
de
by the same company as your operating system. Windows would play nicely wit=
h
all of them.
But this is not what Microsoft=E2=80=99s proposed commitment [.doc] will le=
ad to.
Here=E2=80=99s why.
Downloading vs pre-installing browsers
Microsoft proposes that when the user turns on a fresh Windows 7 install fo=
r
the first time, she would see web page - in Internet Explorer, no less - th=
at
would let her choose between different browsers. She could click on any one=
of
those to download and install it on her system.
This so-called =E2=80=9Cballot screen=E2=80=9D approach sounds good for abo=
ut as long as it
took you to read the last paragraph. Microsoft has shown time and again tha=
t it
will use every trick in the book to prevent competition. So, as we at FSFE =
have
said before, the devil will be in the details.
Downloads are cumbersome if you have a slow connection, and may fail
frequently. This makes choosing an alternative browser more difficult than
sticking with Internet Explorer, so most people won=E2=80=99t bother.
That is why Microsoft should pre-install the alternative browsers (at least
those where the browser maker wants it), so they are there as soon as the u=
ser
wants them. Which browsers on the ballot screen?
Which browsers will appear on the ballot screen? Microsoft proposes to choo=
se
the browsers that are presented on the ballot screen according to their mar=
ket
share. That would largely freeze the market in today=E2=80=99s state, locki=
ng out
competitors. Given that IE has been steadily losing market share over the p=
ast
years, that would make Microsoft very happy indeed.
Instead, browsers for the ballot screen should be selected according to a s=
et
of clear criteria, and the Commission should monitor the selection. These
criteria should be
* market share
* cross-platform availability
* speed of growth in market share
The selection should be updated every few months.
Existing market share tells us which browsers are widely used already. But =
that
in itself isn=E2=80=99t sufficient to allow competition and innovation in t=
he browser
market. By using the speed of growth in market share as a criterion, new an=
d
innovative browsers can get onto the ballot screen. By including browsers t=
hat
are available on several platforms, users can more easily move between
different operating systems without having to get used to a different brows=
er
each time.
Integration into Windows
Any browser that the user chooses needs to be integrated into the Windows
operating system to the same degree that IE is integrated today. For instan=
ce,
the browser=E2=80=99s icon needs to replace the IE icon everywhere, and all
applications that rely on a browser should point to the browser that the us=
er
has selected, rather than IE.
Worldwide monopoly, worldwide remedy
The World Wide Web is just that - worldwide. So is Microsoft=E2=80=99s desk=
top
monopoly. If any settlement between Microsoft and the Commission is going t=
o
have any effect on the market, it has to apply in all countries, not just i=
n
Europe as Microsoft is proposing.
Interoperability
The second case is about Microsoft=E2=80=99s constant refusal to let compet=
itors make
their programs work with the company=E2=80=99s dominant desktop application=
s.
Microsoft has always opposed giving competitors with enough information on =
its
file formats and protocols to produce drop-in replacements for products suc=
h as
Outlook or SharePoint. In the Samba case it finally had to do so, but had t=
o be
dragged kicking and screaming all the way there.
The =E2=80=9CInteroperability Undertaking=E2=80=9D [.doc] that Microsoft ha=
s proposed is
absolutely insufficient. It will hardly give competitors enough information=
to
actually compete, and is likely to leave Free Software in the cold. Those
competitors that succeed anyway will live under a Sword of Damocles, becaus=
e
Microsoft may hit them with a patent suit at any time.
So far, Microsoft is only offering the interoperability information on what=
is
falsely labeled as =E2=80=9Creasonable and non-discriminatory=E2=80=9D (RAN=
D) terms. (For a
full discussion of this issue, see FSFE=E2=80=99s analysis here.) From our =
perspective,
such terms are both unreasonable and discriminatory, because they make it
impossible to use the interoperability information in Free Software.
What we need for a software market with real competition is a binding
commitment from Microsoft to provide and update interoperability informatio=
n on
terms that are compatible with Free Software. This has to be a legally bind=
ing
document, and needs to include guarantees as well as clear remedies if
Microsoft fails to comply.
This commitment could be based on the PFIF agreement (here=E2=80=99s the PD=
F) under
which the Samba team receives information from Microsoft. Among other thing=
s,
the agreement requires Microsoft to provide the information for a one-time =
fee.
Since there are no running royalties on sales, this is compatible with Free
Software under the GPL.
Patents
In any such agreement, patents will play a central role. Microsoft expressl=
y
refuses to say that it won=E2=80=99t enforce patents on interoperability in=
formation.
This lets the company use the same strategy of sowing fear, uncertainty and
doubt (FUD) with which it fights GNU/Linux: It simply claims to have patent=
s,
but doesn=E2=80=99t say what they are or what they cover. Precisely because=
of this
vagueness, companies will hesitate to actually make use of the interoperabi=
lity
information, for fear of being sued into oblivion by Microsoft.
So while competitors would have enough information to build software that c=
an
compete with Microsoft on an equal footing, they would frequently be too sc=
ared
of being sued for patent infringement to actually use that information. Thi=
s
means that Microsoft would keep the desktop monopoly which it holds today.
Conclusions
In short, neither Microsoft=E2=80=99s proposed settlement nor its promises =
on
interoperability are acceptable in their present form. If the Commission we=
re
to strike a deal on this basis, the lack of competition in browsers and des=
ktop
applications will remain just as bad as it is now.
As FSFE=E2=80=99s legal counsel Carlo Piana notes, the Samba case is an exc=
ellent
precedent for both of these antitrust investigations. It was a case against=
the
same company using very similar anticompetitive practices. Its victory in t=
he
case gave the Commission=E2=80=99s antitrust authorities a considerable boo=
st.
Importantly, the Samba case was resolved in a way that lets Free Software
compete with Microsoft=E2=80=99s offerings. This is a crucial point, becaus=
e in many
cases the strongest competition for Redmond=E2=80=99s programs comes from F=
ree
Software.
The only party in this affair who needs to close a deal is Microsoft. They =
want
to avoid another crushing defeat like the one they suffered at the hands of=
the
Commission and FSFE in the Samba case, where the issue was interoperability=
in
workgroup servers.
The Commission does not need a deal. Its mission is to promote competition =
in
the European software market. It has built up a highly effective team of
experts to deal with Microsoft over the years.
By imposing an artificial deadline on herself, Neelie Kroes needlessly give=
s
away a very strong hand. Sure, nobody knows who will succeed her as competi=
tion
Commissioner. But giving herself only a few days or weeks to close the deal
means that she will have to settle the case on Microsoft=E2=80=99s terms, p=
erhaps with
a few token concessions. It=E2=80=99s easy to predict that this means that =
the
settlement will let Microsoft continue to exclude the competition every ste=
p of
the way, the way it always has.
Commissioner Kroes, you and your team have done splendid work over these pa=
st
years. We ask you not to tarnish your legacy with a hasty deal. Please, do =
not
snatch defeat from the jaws of victory. Europe deserves better.
--
Karsten Gerloff [ ] <gerloff@fsfeurope.org>
Free Software Foundation Europe [ ][ ][ ] [http://fsfe.org]
President | | +49 176 9690 4298
Your donation powers our work! [http://fsfe.org/donate/]
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at the Registergericht Hamburg (VR 17030).
--
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