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The EU and Microsoft Settle Browser Issue; Interoperability with FOSS Still a Problem
Wednesday, December 16 2009 @ 01:21 PM EST

The EU Commission and Microsoft have settled the browser choice issue, and the Commission will continue to monitor interoperability issues, with Microsoft posting a new and "improved" set of documents today about interoperability. Everyone seems guardedly satisfied with the browswer solution, some ecstatic, and the continued monitoring of the latter is a good thing, in that so far, Microsoft's suggested solution excludes the GPL and hence Free Software, according to FSFE. There are complaints related to standards that remain outstanding.

Microsoft's commitments on interoperability are unilateral, but you can sue them if you can afford to, and the Commission says it will be watching how they do while they continue to consider the remaining complaints about standards. Here's the EU Commission press release and Microsoft's statement, along with links to all the documents. Here's the new one about patents and open source. In Microsoft's proprietary .doc format. Here's the ECIS statement, ECIS standing for European Committee for Interoperable Systems. And Bloomberg's report on the deal, which mentions the three remaining complaints:
“Big chunks of the Microsoft problem have been solved,” said Maurits Dolmans, a lawyer for ECIS from Cleary Gottlieb Steen & Hamilton LLP.

Dolmans said there are three other complaints against Microsoft. ECIS has complained that Microsoft changes standards on its Office software so that documents made in other formats don’t appear correctly.

Indeed. You might also want to read Mozilla's reaction from Mitchell Baker and here's part of the Opera statement:
Opera Software today announced that Web users are the winners upon the completion of the European Commission’s investigation into Microsoft’s browser-bundling practices. Microsoft will now offer users of Windows XP, Windows Vista and Windows 7 a screen presenting a choice of Web browsers. In December 2007, Opera Software urged the European Commission to investigate Microsoft’s abuse of its dominant market position and the company’s bundling of Internet Explorer with its Windows operating system.

The new “choice screen” (or “ballot screen”) enables users easily to select and install Internet Explorer alternatives, which are safer, faster and more standards-compliant browsers. By giving consumers a genuine choice of browsers, the door is now open for increased Web compatibility and equal access to Internet content.

“This is a victory for the future of the Web. This decision is also a celebration of open Web standards, as these shared guidelines are the necessary ingredients for innovation on the Web,” said Jon von Tetzchner, CEO, Opera Software. “Opera has long been at the forefront of Web standards, which ensures that people have equal access to the Web anytime, anywhere and on any device. We see the outcome of the EU’s investigation as a testament to our mission.”

After vigorously pursuing the bundling issue upon Opera’s initial complaint in 2007, the European Commission accepted Microsoft’s commitment to a Web browser choice screen, and the investigation was brought to a close. This browser choice agreement will have a term of five years and includes a semi-annual review of its effectiveness. Currently, the browser choice screen will be available to only European consumers.

“The days when companies could use poor standards support to tie down users are over,” said Håkon Wium Lie, Chief Technology Officer, Opera Software. “The browser choice screen will give users access to better browsers with better support for Web standards.”

Opera is a very fine browser. It's a beautiful product. It does things no other browser I've used can do. And many times, it has been the first to do something wonderful that others later add to their browsers too. And it was Opera that deserves credit for filing the complaint that led in time to this settlement. So if you've never tried it, I encourage you to give it a whirl. It runs on Windows, Linux, or your Mac, FreeBSD and Solaris. And to those who are puzzled about why this agreement is needed since folks have always been "free" to choose another browser, I think you have never tried to use Opera. Because it adheres to standards, and Microsoft didn't, and most web sites felt compelled to follow Microsoft's version of HTML instead because of its numbers, if you used a browser like Opera, you would often land on websites that didn't resolve properly in Opera, only in IE. I can testify to that, because I used Opera for many years, and it happened to me many times. I viewed it as a way to use monopoly power to muscle folks into having to use IE or suffer reduced functionality.

And here's FSFE's, which explains the interoperability issue.

Here's the problem FSFE sees in the interoperability area:

The European Commission is also investigating the way Microsoft prevents competitors from interfacing with many of its desktop productivity programs. Microsoft has offered a unilateral commitment. Yet these promises are useless for Free Software developers, since they exclude commercial use of Microsoft's interoperability information.

Carlo Piana, FSFE's legal counsel, says: "The patent commitments are clearly insufficient, because they don't allow commercial exploitation. This keeps out competition from Free Software, which in many areas is the biggest competitor to Microsoft's programs. Instead, Microsoft will continue to threaten commercial Free Software developers and their customers with patent FUD (fear, uncertainty and doubt)."

FSFE's President Karsten Gerloff says: "We welcome the Commission's decision to keep the interoperability investigation open while it monitors whether Microsoft's promises help to promote competition. We are confident that the Commission will take action if the commitment doesn't improve things for Free Software."

The EU Commission statement on interoperability is fascinating:
In July 2009, Microsoft also made proposals in relation to disclosures of interoperability information that would improve interoperability between third party products and several Microsoft products, including Windows, Windows Server, Office, Exchange, and SharePoint (see MEMO/09/352 ). After intensive discussions with the Commission, Microsoft is today publishing an improved version of the undertaking and related documents (for example a warranty agreement and a patent licence agreement) on its website. The Commission welcomes this initiative to improve interoperability. Even though it remains informal vis-à-vis the Commission, Microsoft’s public undertaking offers assurances to third parties that can be privately enforced. The Commission will carefully monitor the impact of this undertaking on the market and take its findings into account in the pending antitrust investigation regarding interoperability (see MEMO/08/19 ).
Is that not saying that Microsoft can continue to be bad at its own risk? So progress might be on the way. I have to congratulate Neelie Kroes and the Commission for consistently getting Microsoft to change its ways more so than anyone else in history. Compare that with the DOJ monitoring of the US antitrust deal and its ineffective compliance verification, and you will also take off your hats to them as well. [This Danish website says that she has brought Microsoft to its knees, and that it settled out of fear, in the burnt child fears the fire sense (Google Translate).]

The ECIS statement commends the Commission, as it should, and is particularly happy that the Commission decided to continue to monitor progress, with Microsoft having to report in six months:

We stress however that implementation that effectively delivers choice for consumers and a level-playing field for competitors, depends on robust and sustained monitoring and enforcement of the settlement.

Our emphasis on enforcement is based on years of familiarity with Microsoft's inadequate commitments and broken promises.

But on interoperability, while saying that the interoperability "undertaking from Microsoft" is potentially significant, it says that monitoring matters, and that past experience "is not promising." It is particularly concerned about the patent arrangement for open source developers, saying it is not yet totally clear how it will play out.

Here's the language that is bothering people in the Patent Pledge for Open Source Developers:

An "open source project" is a software development project the resulting source code of which is freely distributed, modified, or copied pursuant to an open source license and is not commercially distributed by its participants. If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities.
Microsoft tries this trick every time. Same thing with the Microsoft-Novell patent pledge, if you recall. It means the same thing here, that you are not covered unless you are not a commercial competitor of Microsoft. So Linus in his bedroom would be covered, but once people actually started to use Linux to the benefit of the world's economy, the deal is off? Then what happens? Is the old code still covered? How is it interoperability if your main competition is excluded from interoperability? My guess is Microsoft means for you to have to pay for a patent license, if you are commercial, judging by Jason Matusow's comment about similar language in the Novell deal:
The offer not to sue open source software developers for patent infringement might sound philanthropic, but it has been dismissed from various quarters as "divisive" and "worse than useless".

Earlier this week the Samba development team urged Novell to rethink its agreement with Microsoft as it favored non-commercial developers or those contributing to Novell’s openSUSE project over contributors to other commercial open source projects.

Meanwhile the Software Freedom Law Center said the offer was "worse than useless" and was not to be relied upon.

While Matusow’s request for input from the open source community shows that the company is open to criticism, it appears it will not be changing its position on commercial open source developers.

"Our design goal is to get language in place that allows individual developers to keep developing. We are not interested in providing carte blanche clearance on patents to any commercial activity - that is a separate discussion to be had on a per-instance basis," he wrote.

But the GPL forbids paying for a patent license, so it's a cute trick to keep GPL code, and that includes Linux, out in the cold, unable to interoperate.

Try to match up that language with the Microsoft Guiding Principles language in the Undertaking posted today:

A. GUIDING PRINCIPLES

(2) Microsoft shall ensure that third-party software products can interoperate with Microsoft’s Relevant Software Products using the same Interoperability Information on an equal footing as other Microsoft Software Products. (“Interoperability Commitment”)

(3) This Undertaking shall be interpreted in the light of these Guiding Principles.

(4) Microsoft shall not circumvent or attempt to circumvent the commitments in this Undertaking, including the Guiding Principles.

I can't yet match it up, but I'll keep trying. There are two other documents about patents, Annex B1 and B2, both also in .doc format, speaking of interoperability, that are called Template Interoperability Patent License and Template Patent Covenant Agreement, and ECIS's statement that the patent area is not yet clear is because these three documents are new today, and everyone needs time to read them, including me.

The New York Times, the Wall Street Journal, and the Financial Times all have coverage, but I linked to Bloomberg. The others either require that you register or require that you pay. So this is to let you know that it's there, but I won't help them do what they are trying to do.

Here's the complete EU Commission press release:

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

Brussels, 16 th December 2009

Antitrust: Commission accepts Microsoft commitments to give users browser choice The European Commission has adopted a decision that renders legally binding commitments offered by Microsoft to boost competition on the web browser market. The commitments address Commission concerns that Microsoft may have tied its web browser Internet Explorer to the Windows PC operating system in breach of EU rules on abuse of a dominant market position (Article 102 of the Treaty on the Functioning of the European Union -TFEU). Microsoft commits to offer European users of Windows choice among different web browsers and to allow computer manufacturers and users the possibility to turn Internet Explorer off. Microsoft is also publishing today an undertaking whereby it commits to make far-reaching interoperability disclosures.

Competition Commissioner Neelie Kroes said: "Millions of European consumers will benefit from this decision by having a free choice about which web browser they use. Such choice will not only serve to improve people's experience of the internet now but also act as an incentive for web browser companies to innovate and offer people better browsers in the future."

Under the commitments approved by the Commission, Microsoft will make available for five years in the European Economic Area (through the Windows Update mechanism) a " Choice Screen" enabling users of Windows XP, Windows Vista and Windows 7 to choose which web browser(s) they want to install in addition to, or instead of, Microsoft's browser Internet Explorer.

The commitments also provide that computer manufacturers will be able to install competing web browsers, set those as default and turn Internet Explorer off.

Today's decision follows a Statement of Objections sent to Microsoft by the Commission on 15 January 2009 (see MEMO/09/15 ). The Statement of Objections outlined the Commission’s preliminary view that Microsoft may have infringed Article 82 of the EC Treaty (now Article 102 of the Treaty on the Functioning of the European Union) by abusing its dominant position in the market for client PC operating systems through the tying of Internet Explorer to Windows.

The Commission’s preliminary view was that competition was distorted by Microsoft tying Internet Explorer to Windows. This was because it offered Microsoft an artificial distribution advantage not related to the merits of its product on more than 90 per cent of personal computers. Furthermore, the Commission's preliminary view was that this tying hindered innovation in the market and created artificial incentives for software developers and content providers to design their products or web sites primarily for Internet Explorer.

The approved commitments address these concerns. PC users, by means of the Choice Screen, will have an effective and unbiased choice between Internet Explorer and competing web browsers. This should ensure competition on the merits and allow consumers to benefit from technical developments and innovation both on the web browser market and on related markets, such as web-based applications.

The Commission's decision is based on Article 9 of Regulation 1/2003 on the implementation of EU antitrust rules. It takes into account the results of the market test launched in October 2009 (see MEMO/09/439 ). This decision, which does not conclude whether there is an infringement, legally binds Microsoft to the commitments it has offered and ends the Commission's investigation. If Microsoft were to break its commitments, the Commission could impose a fine of up to 10% of Microsoft's total annual turnover without having to prove any violation of EU antitrust rules.

A clause in the commitments allows the Commission to review the commitments in two years. Microsoft will report regularly to the Commission, starting in six months' time, on the implementation of the commitments and under certain conditions make adjustments to the Choice Screen upon the Commission's request.

Interoperability information

In July 2009, Microsoft also made proposals in relation to disclosures of interoperability information that would improve interoperability between third party products and several Microsoft products, including Windows, Windows Server, Office, Exchange, and SharePoint (see MEMO/09/352 ). After intensive discussions with the Commission, Microsoft is today publishing an improved version of the undertaking and related documents (for example a warranty agreement and a patent licence agreement) on its website. The Commission welcomes this initiative to improve interoperability. Even though it remains informal vis-à-vis the Commission, Microsoft’s public undertaking offers assurances to third parties that can be privately enforced. The Commission will carefully monitor the impact of this undertaking on the market and take its findings into account in the pending antitrust investigation regarding interoperability (see MEMO/08/19 ).

See also MEMO/09/558 and MEMO/09/559 . .


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