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ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue - Updated
Friday, June 12 2009 @ 10:40 AM EDT

ECIS, accepted as an intervenor in the European Commission's Microsoft browser antitrust case, has now released a statement [PDF] explaining all that it feels isn't enough about Microsoft's self-remedy. It's titled, Too Little, Too Late, and it says that while the remedy might have been appropriate in 1997, now that there have been "decades of abuse" further action is needed.

And the EU Commission says it will continue with the case, despite the Microsoft announcement:

Europe's top antitrust regulator said in a statement released overnight that it "notes with interest" Microsoft's statement, which was made in a blog post late Thursday in the U.S. But the EC said it would proceed with the case, and would draw up a remedy that allows computer users "genuine consumer choice"....

"Rather than more choice, Microsoft seems to have chosen to provide less," it said.

If you'd like to follow along more closely, here's the Microsoft browser page, and here's the EU Commission's page on Microsoft's previous case, and here's the page explaining EU antitrust law and finally, here's the EU Commission January 14, 2008 announcement that it was opening formal investigations into two areas with respect to Microsoft, tying of the browser and interoperability, explaining the legal basis.

The browser issue is more than just the browser:
As for the tying of separate software products, in its Microsoft judgment of 17 September 2007, the Court of First Instance confirmed the principles that must be respected by dominant companies. In a complaint by Opera, a competing browser vendor, Microsoft is alleged to have engaged in illegal tying of its Internet Explorer product to its dominant Windows operating system. The complaint alleges that there is ongoing competitive harm from Microsoft's practices, in particular in view of new proprietary technologies that Microsoft has allegedly introduced in its browser that would reduce compatibility with open internet standards, and therefore hinder competition. In addition, allegations of tying of other separate software products by Microsoft, including desktop search and Windows Live have been brought to the Commission's attention. The Commission's investigation will therefore focus on allegations that a range of products have been unlawfully tied to sales of Microsoft's dominant operating system.
"Microsoft must give users real choice, and this should include not just buyers of new computers, but also existing users," the ECIS statement says. Windows 7 hasn't been released yet and it won't be until later this year. What is the remedy for ongoing abuses or the installed base of 90 percent of personal computers? Further, this is not a world-wide solution, and without a world-wide solution, ECIS states, the anti-competitive network effects will continue to impact European users. Then there is the issue of Microsoft's history of "vitiating measures designed to promote competition". And then, ECIS addresses Silverlight. "Commitments are needed to avoid circumvention of the illegal IE tie by tying other Microsoft products such as Silverlight," ECIS says.

What remedy would ECIS like to see? The Commission's ballot screen remedy set up so that buyers of new PCs are provided with a preloaded ballot screen or a browser that is not IE, to be selected by the OEMs. For the installed base, Windows updates and IE updates would come preloaded with other browsers and a ballot screen.

Read on for the details. Also, the full EU Commission statement is now available, and you can find it as an update to yesterday's article.

Interestingly, Apple just announced something that indicates that users do want more choice:

Apple on Friday announced that Safari 4, the new version of its Web browser for Mac OS X and Windows, has been downloaded more than 11 million times in the first three days of its release....The 11 million figure includes 6 million downloads for the Windows version of Safari.
Apple says Safari loads HTML Web pages more than three times faster than IE 8, which might explain the enthusiasm.

[ Update: If you are interested in the US law on illegal tying, you will enjoy reading a recent decision granting an Apple summary judgment motion in the Apple iPod/iTunes antitrust class action. The judge explains how the law stands, what makes tying illegal, and what the elements are, and why Apple in that litigation isn't guilty of it.]

*************************

Too Little, Too Late

After 13 Years of Abusive Tying Practices, Microsoft Must Do More to Undo Entrenched Network Effects and End Consumer Harm. The European Commission Should Insist on Real Consumer Choice. Its Ballot Screen Remedy Is Still Needed.

Brussels – 12 June 2009 – “Microsoft offers to unbundle IE and Windows 7. The current Microsoft announcement is too little, too late. Such a move would have been appropriate in 1997, but further action is needed to undo the effects of a decade of abuse,” said Thomas Vinje, Legal Counsel and Spokesman to ECIS. Microsoft must give users real choice, and this should include not just buyers of new computers, but also existing users.

For ECIS Microsoft’s announcement is lacking because:

  • Abuses continue. Windows 7 will only be released later this year. No measures are announced to address ongoing abuses or the installed base of IE on over 90% of personal computers which Microsoft has built up over the last decade through its illegal tying practices even though rival products were better.
  • Reports indicate that Microsoft does not intend to offer this remedy on a worldwide basis, continuing to deprive consumers in other regions of a choice of browsers and further deepening anti-competitive network effects that will impact European users.
  • Microsoft has a history of vitiating measures designed to promote competition. Microsoft must commit to giving personal computer manufacturers (OEMs) and consumers a real choice and not replace the illegal tie with other actions or financial incentives meant to replace the technical tying of IE and Windows.
  • Microsoft must refrain from using its super-dominant Windows platform to replace the illegal tie with other leveraging practices. Microsoft must also put an end to its practice of overriding user default preferences for other browsers, calling up IE code even when users have chosen to uninstall IE or using its Windows update function to distribute IE to the detriment of alternative browsers.
  • Microsoft must commit to finally putting an end to its illegal tying practices for all separate products, not just WMP and IE. After foreclosing competition in the media player and browser markets, Microsoft should not eliminate competition for other applications through similar tying practices.
  • Commitments are needed to avoid circumvention of the illegal IE tie by tying other Microsoft products such as Silverlight.

“For the above reasons, the Commission’s proposed ballot screen remedy which provides consumers with a REAL choice remains necessary,” Vinje stressed. This remedy would mean that buyers of new PCs be provided with the preloaded ballot screen or an alternative browser other than IE as selected by the OEMs. For the installed base of IE users, Windows updates and IE updates would come preloaded with other browsers and a ballot screen. The ballot screen with a choice of at least five preloaded browsers should also be provided to customers who buy Windows through the retail channel to upgrade their PCs.

About ECIS

ECIS is an international non-profit association founded in 1989 that strives to promote market conditions in the ICT sector allowing vigorous competition on the merits and a diversity of consumer choice. ECIS has actively represented its members on many issues related to interoperability and competition before European, national and international bodies, including the EU institutions and WIPO. ECIS’ members include large and smaller information and communications technology hardware and software providers Adobe, Corel, IBM, Nokia, Opera, Oracle, RealNetworks, Red Hat, and Sun Microsystems.


  


ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue - Updated | 158 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Nemesis on Friday, June 12 2009 @ 10:58 AM EDT
Place your corrections here.

[ Reply to This | # ]

On topic discussion thread
Authored by: Nemesis on Friday, June 12 2009 @ 11:00 AM EDT
Discuss the article here.

[ Reply to This | # ]

Off topic thread
Authored by: Nemesis on Friday, June 12 2009 @ 11:02 AM EDT
Off topic discussion here.

[ Reply to This | # ]

ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue
Authored by: Anonymous on Friday, June 12 2009 @ 11:09 AM EDT
You seem to be missing a closing anchor tag somewhere. Half of the article
appears to be a link.

James (to lazy to log in)

[ Reply to This | # ]

yay for eu: "Commitments are needed to avoid circumvention of the illegal IE tie by tying other
Authored by: designerfx on Friday, June 12 2009 @ 11:13 AM EDT
This in itself is huge. Tying things to silverlight has already been a major
pain in the butt for things such as sporting events, netflix, etc.

[ Reply to This | # ]

Separate bills please
Authored by: Anonymous on Friday, June 12 2009 @ 11:24 AM EDT
When I buy a computer, I want a bill for the hardware and a bill for the
software.

I want the opportunity to say no to the software in the shop (not a refund after
a lot of paperwork and telephone calls).

[ Reply to This | # ]

Newspicks thread
Authored by: sgtrock on Friday, June 12 2009 @ 11:54 AM EDT
Since no one else has started one. :)

[ Reply to This | # ]

ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue
Authored by: tknarr on Friday, June 12 2009 @ 12:08 PM EDT

The remedy to the illegal tying of IE to Windows needs to be untying IE from Windows. The problem isn't so much that IE is bundled with Windows, it's that the bundling's forced on OEMs with no choice and no way to unbundle it.

So, instead of messing around with must-carry and the like, simply break the mandatory linkage. Make IE an installable component just like any other piece of software. Put it in Add/Remove Programs, make it a selectable option during installation, and give OEMs the ability to not install it just like they can choose not to install any other optional software when they're setting up their base configuration. Simply require that, when a user or the OEM doesn't install IE or uninstalls it, it isn't there anymore. No trace, no libraries, if the user tells it to be gone then it's gone. Not hidden, not concealed, gone. Just like what you expect when you uninstall any other piece of software.

If the system needs an HTML rendering engine to display things like help, then the system just follows it's own standards: it creates an IBrowser (or whatever the class name is now) object and uses it per the published standard interface. That was the whole point of COM et. al., wasn't it? If no other implementation is available, the system can include a basic HTML rendering engine for internal use in that case, one used only for that purpose and not available to anything else. It can be basic because it's only going to display internal stuff like help pages, and those use a limited range of features and don't need things like ActiveX support, multimedia and the like. They frankly probably don't even need Javascript, and definitely won't be doing things like HTTP so the renderer doesn't need to handle network protocols.

The bootstrap issue of how do you get your first browser shouldn't even be a problem here. The OEM will probably install some browser, which can be used to download a replacement. If they don't, the user could always install IE long enough to get another browser and then uninstall it. And if the user chooses to uninstall all browsers, or the OEM chooses to not include any and the user chooses to buy their package knowing that, then you can assume the user doesn't want a Web browser and wants anything that demands a Web browser to fail. I mean, what does an ATM need a Web browser for, or the control panel for a multifunction copy/fax/print machine? They run a single piece of software for a single purpose, and if that software needs Web browsing capabilities it already includes it.

[ Reply to This | # ]

The Mother of All Shill Storms
Authored by: Gringo on Friday, June 12 2009 @ 12:46 PM EDT

This was just posted on Slashdot. Seems the writer there has been reading Groklaw, and even picked up a piece from Stegeu. Watch how many seconds it will take for it to be modded to oblivion...

There is this most amazing shill swarm going on all over the web because of this issue. On comments to the New York Times article, even on Microsoft's own web site where they calmly state that out of respect to the EU ruling they would desist from bundling IE in Europe, the comment section is filled from comments from their own sock puppets. It is time somebody spoke out about this. This is no less than the "Death of Web 2" and free speech. Just watch how fast this gets modded to oblivion, for example, in spite of the fact that Slashdot has long been known as a place where the voice of the people can be heard speaking out against perceived injustices perpetrated by the powerful. This is something good for society - that the voice of individuals should get heard and not drowned out by the mighty roar of the powerful.The defence of Microsoft by some Slashdotters goes directly against the grain here. What bothers me most about these comments by Microsoft's supporters on Slashdot is there subtle nature - not just healthy debate, but rather, as if there was some orchestrated campaign employing techniques such as "Saturate, diffuse, confuse".

Corporations should not have defenses from the people in the community. They are not equivalent to people, and should not be treated so within that community. The information source was created out of the desire of people who were not paid to share, and injecting thought which is influenced by any monetary bias is by definition sullying a good source of information.

Rule number one for keeping a tyrant in power is to control information. If you control information, you control the truth. By artificially keeping Slashdot skewed in their favour, Microsoft is trying to hide the truth from the public. Their strategy is failing, and what we see right now is their usual gut reaction: try to throw more people and more money at the problem. However, the harder they try, the more light will shine on their shady methods and expose them.

[ Reply to This | # ]

Vitiating - I had to look up that word
Authored by: Anonymous on Friday, June 12 2009 @ 01:20 PM EDT

Some definitions:

  1. corrupt: corrupt morally
  2. make imperfect
  3. diminished: impaired by diminution;
  4. invalidate: take away the legal force of or render ineffective;
  5. corrupted: ruined in character or quality
  6. a reduction in the value, or an impairment in the quality of something;
  7. to spoil, make faulty;
WOW! I don't think I've ever seen a word so well used.

MS has certainly exercised that term to it's fullest.

It can even be directly applied in several ways to the current, on-going saga of OOXML vs ODF.

RAS

[ Reply to This | # ]

I can see some problems here.
Authored by: Alan(UK) on Friday, June 12 2009 @ 01:54 PM EDT
There have been a number of posts on this topic discussing the merits of various
'solutions'. I think we need to dig deeper into the practicalities.

1) The dispute is between the European Commission and Microsoft. The Commission
can offer Microsoft ways of resolving the dispute and can impose very
significant sanctions if it continues with its anti-competitive behaviour.

2) The Commission cannot punish Microsoft for the actions of its customers
(OEMs), only for using anti-competitive measures to 'persuade' them to do so. If
all OEMs 'want' to install IE, then the Commission's only remedy is to forbid
Microsoft to supply it to them.

3) If the Commission only allows Microsoft to offer its browser as a direct
download to the end user, then the OEM could still provide a big button marked
'Genuine Microsoft Internet Explorer (recommended)' and a command line ftp
client to download anything else?

4) If the Commission decide to tell Microsoft that it has to provide a download
screen giving equal prominence to several browsers, can the writers of 'Warez
Explorer' and 'Ibiblio Explorer' insist on being included (there is nothing
stopping them from taking the Commission to the European Court)?

5) If Microsoft was allowed to choose which browsers to offer, then Microsoft
could be held accountable for the effect on its own OS due to installing them.

6) By the time the PC gets to the retailer, the Commission loses all control
over it. The retailer could 'customise' it as he sees fit. If the only thing
that will sell is IE, then that is what will go on.

---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Something really wild MS could do
Authored by: LaurenceTux on Friday, June 12 2009 @ 02:14 PM EDT
Start using some sort of package files to construct the system

MS pick for either MSI or CAB extensions.

then what they could do is have "interested parties" create packages
for the new manager AND HAVE THE HOOKS TO REPLACE CORE FUNCTIONS so any calls to
MSIE or MSMP get actually sent to %program% instead.

[ Reply to This | # ]

A pair of hits right on the nail
Authored by: PolR on Friday, June 12 2009 @ 03:03 PM EDT
ECIS has hit right on the nail with these two point, not the other ones aren't good, but these two are prominent IMHO.
  • Microsoft has a history of vitiating measures designed to promote competition. Microsoft must commit to giving personal computer manufacturers (OEMs) and consumers a real choice and not replace the illegal tie with other actions or financial incentives meant to replace the technical tying of IE and Windows.
  • Microsoft must commit to finally putting an end to its illegal tying practices for all separate products, not just WMP and IE. After foreclosing competition in the media player and browser markets, Microsoft should not eliminate competition for other applications through similar tying practices.
Microsoft tactics work a bit like a DOS attack. It takes years of litigation to stop one anti-competitive tactic and success is not guaranteed. By them time you are done with this one, a dozen of others are left unchecked doing their damage. You can't stop them all bychasing each tactic one at a time.

I have high doubts that the proposed ballot screen would work. I have no faith that Microsoft would fix the abuses once convicted. IE not only with Windows but with any other of its products: Sharepoint, Outlook, Exchange etc. Microsoft may also act through proxy. What would stop dozens of noname inferior browsers makers popping up and demanding to be on the ballot screen? What would stop these noname browsers to be just a GUI wrapper around the IE run-time so they are actually a version of IE by another name? What would stop the noname vendors from receiving PIPE fairy funds so they can pay OEMs to be bundled with Windows? The ability of Microsoft to disrupt the W3C standards and prevent real competition would remain intact.

I think EU competition law has a concept of repeat offender. How does that work? Nellie Kroes once said that behavioral remedies don't work with Microsoft. I hope she will remember those words.

[ Reply to This | # ]

What about a real, honest detterent against future abuse?
Authored by: mcinsand on Friday, June 12 2009 @ 03:44 PM EDT
I halfway joked to myself that the real solution would be to ban IE and any
resulting derivations. After immediately dismissing the thought as ridiculous,
I started thinking... is it ridiculous? If a company is mean, abusive,
dishonest, and behaves illegally in a market, is that company really entitled to
participate in the market, at all? Maybe the solution *is* to declare IE
forbidden, illegal to market, illegal to download. So far, MS has gotten away
with bundling, no matter how many (spineless) courts declare the company guilty
of anticompetitive laws. Were the penalty to be market exclusion, then MS might
be more careful.

Later,
mc

[ Reply to This | # ]

Apple next?
Authored by: Anonymous on Friday, June 12 2009 @ 04:45 PM EDT
Safari is installed by default with MacOS-X.
No choice is given at install time for any other browser.
The webkit components are integrated deeply in the OS.
Download and install any other browser is just as much
a chore as for Windows users. And MacOS nags:
"Firefox is an application that was downloaded from the internet
at <time><date>. Are you sure you want to run this
application?"

Maybe MacOS' market share puts it under the radar for
regulators, but the remedy applied to Microsoft must be
exemplary, lest others fall into the same ways.

Interesting that PCWorld observes ~70% of Safari4
downloads are for Windows. I run several Windows systems
which are not connected to the internet. Since about
six months ago Apple removed the ability for me to
download the Windows version via my MacOS system,
to put on a local s/w repository. Now I am forced
to expose at least one Windows system to the internet
just to get Safari.



[ Reply to This | # ]

What does notwithstanding mean?
Authored by: Alan Bell on Friday, June 12 2009 @ 06:06 PM EDT

Toshiba now put this notice on computers:

Quality Seal

Importants Notice: TOSHIBA Corporation (TOSHIBA) and/or its subsidiaries currently sell personal computers with pre-installed Microsoft operating system as computing solution. Please note, notwithstanding anything to the contrary in the documentation accompanying your computer, TOSHIBA and/or its subsidiaries do not accept the return of component parts or bundled software, which have been removed from the PC System. Pro-rata refunds on individual components or bundled software, including the operating system, will not be granted.

Now the word I am not certain about is notwithstanding. Does this mean that even if there is some paperwork in the box (perhaps from Microsoft) saying you can get a refund Toshiba won't honour that? or is it the other way round and they will do refunds if you can find something in the box saying you can? I think it is the former, but I am not sure of the legal use of the word.

[ Reply to This | # ]

Windows 7 XP Mode?
Authored by: Sean DALY on Friday, June 12 2009 @ 06:27 PM EDT
The Microsoft blog post announcing their self-remedy makes no mention of "XP mode" (XPM).

Does anyone know if XPM is supposed to include Internet Explorer?

thanks

Sean

[ Reply to This | # ]

it is just like ice cream
Authored by: Alan Bell on Friday, June 12 2009 @ 06:34 PM EDT
a while back some big ice cream suppliers gave retailers (OEMs) free freezers on condition that they only contained their brand of operat ice cream. A paper and news article were written about the situation. I think this is the same law being discussed, but what looks to me like a much weaker remedy.

[ Reply to This | # ]

ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue
Authored by: Alan Bell on Friday, June 12 2009 @ 06:47 PM EDT
here is an a good article I found explaining tying and bundling in the context of article 82 of EU law.

[ Reply to This | # ]

the real issue is ...
Authored by: Anonymous on Friday, June 12 2009 @ 09:07 PM EDT
... websites that only work with IE.

Even if the customer is provided with alternative browsers on their systems
he/she will have to install/revert back to using IE to access may important
websites. Unless this issue is tackled MS wins anyway.

Gopal

[ Reply to This | # ]

The real solution
Authored by: Anonymous on Saturday, June 13 2009 @ 12:05 AM EDT
There is only one real solution to the Microsoft problem.

Separate the hardware/firmware from the OS.
The price of a PC should specify the cost of the Windows license, priced
separately, so buyers can choose to pay for Windows or not, as per their
preference.

I can see nothing but up-sides to this

* Hardware manufacturers would no longer be enslaved by Microsoft, but could
innovate what the market desires/dictates.

* Consumers will have a real choice in deciding their user experience (and
cost)

* Microsoft would be forced to learn to compete on an even footing, which is
probably the best long-term solution for them, all things considered.



Tom

[ Reply to This | # ]

ECIS: What's Wrong with Microsoft's Browser Self-Remedy - Case to Continue - Updated
Authored by: Anonymous on Saturday, June 13 2009 @ 10:24 AM EDT
IE should never have existed.

[ Reply to This | # ]

I want a laptop without *operating system*
Authored by: Rhialto on Tuesday, June 16 2009 @ 11:20 AM EDT
The tying problem isn't in the browser, it is in the operating system. It is
(again) impossible to buy a laptop without paying money to Microsoft (there was
a temporary reprieve with the nettops). (Desktop computers can be bought in
parts without any OS so that is less of a problem).

Selling windows without browser does nothing to solve this problem.

---
I have not "authored" this, I have written it.

[ Reply to This | # ]

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