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To read comments to this article, go here
AFUL and FFII Asking for Evidence of Difficulties Buying/Selling a Computer without Windows in EU
Friday, April 15 2011 @ 12:32 PM EDT

This looks worth doing. FFII and AFUL would like to crowd source evidence-gathering about the difficulty for customers and OEMs in Europe trying to buy a computer or sell one without having to pay for Windows:
"We want to crowd source the collection of evidence", says AFUL's President Laurent Séguin. "If the EU finds anticompetitive agreements that foreclose competition or abuse a dominant position on the relevant market, that would be a magic bullet."
Have you experienced that? Have you seen or know of any such contracts? What were you told when you tried to buy a computer without Windows preinstalled or tried to sell them? Are you a software vendor that tried to get your software preinstalled and couldn't? If you have such evidence or know where it can be found, here is where you tell the EU Commission all about it, if you are so inclined.

A member of Parliament, Jens Rohde (ALDE), asked for an answer to the question of whether the Commission would consider the preinstallation of Windows a problem:
On 8 February 2011 a review of the free software program ‘Ubuntu’ was broadcast on ‘Gratis og helt Ubuntu’ in the programme ‘so ein Ding’ on the Danish TV channel DR2*.

According to the review, the software program Ubuntu was quite satisfactory and considered to be comparable to Windows and Mac OS. But when users buy a computer in the EU, Microsoft is preinstalled. Users therefore have to remove the preinstalled Windows in order to install Ubuntu. This means that they are not free to choose which software program they want to install and use on their computer.

Tying two separate products may have an anti-competitive exclusionary effect on the tied market, because it can reduce the number of potential buyers in the market for the tied product (see TFEU Art. 102(2)(d)). In a related case — T-201/04 of 27 September 2007 — the Commission found that Microsoft had abused its dominant market position in PC operating systems by tying Windows to Windows Media Player.

This leads me to ask the Commission if it believes that, or will consider whether, the sale of computers with preinstalled Windows hinders competition as regards software programs? If so, will the Commission then consider putting an end to the preinstallation of Microsoft Windows on computers?

And here is the answer he got (in Microsoft Word 2007 format, sadly) from Mr Almunia on behalf of the Commission:
Microsoft's behaviour could infringe EU competition rules if Microsoft were to implement anticompetitive agreements that foreclose competition or abuse a dominant position on the relevant market(s).

It should be noted that Microsoft is not present on the PC hardware market. It is primarily the Original Equipment Manufacturers (OEMs), who act as intermediaries on behalf of end users, and provide them with an "out-of-the-box" product, by combining PC hardware, client PC operating system and applications for which there is demand.

The Commission is aware of the difficulties encountered by consumers who want to purchase a PC with a non-Microsoft operating system or without any operating system at all. At the moment, the Commission is however not in possession of evidence suggesting that this is the result of practices in violation of EU competition rules as laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union.   

  The Commission will continue to monitor the developments in this field so as to ensure that competition and a level playing field are preserved amongst all market players.

I don't think it's actually the case that the Commission has never been presented with such evidence in the past, as you can see here, a link from 2001. So maybe that's what the answer means about "at the moment". Perhaps they investigated the BeOS situation back then, and didn't find enough to go on. But that would be astonishing.

On the other hand, the EU Commission has shown that it will act, and meaningfully, if it has evidence at hand. It was, after all, Neelie Kroes who said in 2007 that Microsoft can't impose its products on the market:

"The court has confirmed that Microsoft cannot regulate the market by imposing its products and services on people," Kroes said. "The court has confirmed that Microsoft can no longer prevent the market from functioning properly and that computer users are therefore entitled to benefit from choice, more innovative products and more competitive prices."
But while it's obviously hard to find a computer without having to pay for Windows too, who is responsible? Is it contracts, with Microsoft forcing it to be like that? Or just individual OEMs who all do the same thing coincidentally?

Snort.

Here's Article 101, referenced in the EU Commission answer, so you can get an idea of the kinds of things that qualify as anticompetitive there:

Article 101
(ex Article 81 TEC)

1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

- any agreement or category of agreements between undertakings,

- any decision or category of decisions by associations of undertakings,

- any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

I think the Commission is thinking of 1(e), but I wonder why 1(d) wouldn't also apply? I'm not a lawyer, but if I have to pay Windows in order to get a computer with GNU/Linux, why isn't that unequal treatment? I mean Windows users don't have to pay Debian anything to get a Windows computer.

But the Commission, I gather, would need to see it memorialized in a contract between Microsoft and OEMs. Here's Article 102, which lists what kinds of behavior would violate the rules:

Article 102
(ex Article 82 TEC)

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

I gather the Commission views (d) as the one that might convince them, if you knew of any contract with an OEM that required Windows pre-installation and nothing else allowed to be sold on the hardware or prohibiting selling the hardware without software, or something like that. That's hard to find, because unless it's in writing, or you work at an OEM and have inside information, there is no evidence that it's Microsoft doing it and not just market conditions. By that I mean, the OEM could be viewed as just doing what the market demands, so it's the OEMs that are responsible for the results, not Microsoft. If I were an OEM, I'd probably want to talk to a lawyer before doing a thing. Microsoft is Microsoft.

Even if it doesn't convince the Commission, I do think it would be worthwhile to let them know that you tried to buy a computer without Microsoft on it and couldn't, if that did happen to you in Europe, mentioning where you tried to buy it specifically. If they get enough complaints, I would think (a) and (b) might conceivably come into the picture in their minds in time. I always believe that education is valuable, even if one can't control or predict any immediately gratifying results.

Here's the full press release, except for contact info, which you can get from the link:

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

Share your operating system bundling tales with the EU

Berlin, Paris Apr 14th 2011 -- The FFII and AFUL ask consumers affected by operating system bundling or businesses involved in bundling to provide their evidence to the European Competition authority.

"My choice is Debian GNU/Linux", explains FFII Vice president René Mages. "Why have I been compelled to pay and erase Windows 7 at purchase time?"

The European Commission admits it was aware of the difficulties encountered by consumers who want to purchase a PC with a non-Microsoft operating system or without any operating system at all. But they also say they lack evidence suggesting that this is the result of practices in violation of EU competition rules.

"We want to crowd source the collection of evidence", says AFUL's President Laurent Séguin. "If the EU finds anticompetitive agreements that foreclose competition or abuse a dominant position on the relevant market, that would be a magic bullet."

Commission Contact Submission Form: Information on competition problems affecting consumers

About AFUL (http://aful.org/)

The French speaking Linux and Libre Software Users' Association (AFUL), aims to promote libre software and the use of open standards. AFUL is a non-profit association that gathers users, professionals, companies and other associations based in more than a dozen French-speaking countries and regions (France, Belgium, Switzerland, Quebec, French-speaking African countries, etc.).

Partner of many media, AFUL is present at many exhibitions, conferences and meetings. In particular, it has an active role against bundled sales (Workgroup against bundled sales, (Racketware and Non aux Racketiciels, comparative list bons-vendeurs-ordinateurs.info of computer vendors and bons-constructeurs-ordinateurs.info of computer manufacturers), in favor of interoperability (member of AFNOR, participation to Interoperability and accessibility Referentials by DGME, formats-ouverts.org website, etc.), as well as on issues concerning Author Copyrights.

About FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.on on competition problems affecting consumers.

Links

Answered Written Question from MEP Jens Rohde (ALDE) to the Commission: The preinstallation of Microsoft Windows

Article 102 on the Functioning of the European Union

Related press releases

EU tells open source to start paying MS patent tax

Microsoft will trump competition ruling with patents


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