= Microsoft antitrust case: FSFE offers analysis to European Commission =
[Permanent URL: http://www.fsfe.org/news/2009/news-20091006-01.en.html]
6 October 2009, 12:15 pm, Berlin, Germany
The European Commission is on the verge of settling two antitrust cases against Microsoft. The details of this settlement will determine how much competition there can be in Europe's software market for years to come.
The Free Software Foundation Europe has analysed the most important elements that a settlement should contain to allow real competition in the European software market. It has summarised those key points in a letter sent to Competition Commissioner Neelie Kroes:
http://www.fsfe.org/projects/browserbundling/letter-20091005.en.html (The full text of the letter is enclosed below for your convenience.)
Kroes is looking at Microsoft's practice of tying its Internet Explorer browser to its Windows operating systems, excluding rival browser makers. She is also trying to persuade Microsoft to release enough information so that competitors can make their desktop software work with the company's dominant operating system. This is something that Microsoft has refused to do in the past.
FSFE believes that a settlement on the browser case needs to put rival browsers on an equal footing with Microsoft's Internet Explorer by pre-installing them. Fast-growing browsers need to be included in an unbiased selection screen.
For desktop applications, FSFE argues that the software monopolist must release interoperability information in such a way that it can be used in Free Software. The company must also make a binding commitment not to enforce its patents against Free Software. That would prevent Microsoft from using Fear, Uncertainty and Doubt (FUD) to keep rivals from making use of the information.
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== About the Free Software Foundation Europe ==
The Free Software Foundation Europe (FSFE) is a non-profit non-governmental organisation active in many European countries and involved in many global activities. Access to software determines participation in a digital society. To secure equal participation in the information age, as well as freedom of competition, the Free Software Foundation Europe (FSFE) pursues and is dedicated to the furthering of Free Software, defined by the freedoms to use, study, modify and copy. Founded in 2001, creating awareness for these issues, securing Free Software politically and legally, and giving people Freedom by supporting development of Free Software are central issues of the FSFE.
== Contact ==
Karsten Gerloff President Free Software Foundation Europe e-mail: press at fsfeurope.org mobile: +49-176-96904298
== FSFE's letter to Competition Commissioner Neelie Kroes ==
Dear Commissioner Kroes,
regarding the antitrust investigations led by DG COMP against Microsoft, you have let it be known [1] that you would like to close a number of open cases very soon. This includes an ongoing investigation into Microsoft's practice of tying its Internet Explorer Browser to its Windows operating systems, and a pending complaint about Microsoft's consistent failure to share interoperability information for its desktop programs with competitors.
At the Free Software Foundation Europe (FSFE), we have long followed your Directorate's excellent work in ensuring competition in Europe. We participated as an interested third party in the Commission's case against Microsoft about interoperability in the workgroup server market. Today, FSFE is an interested third party in the Commission's proceedings against Microsoft based on Opera's complaint about the company's practice of tying Internet Explorer to its Windows operating system. We also follow closely any progress regarding the complaint filed by ECIS on Microsoft's refusal to share interoperability information for a number of its desktop applications.
It is our view that DG Competition has done splendid work in all these cases. We are writing to you today to express our concerns about the consequences that an insufficiently strong settlement in those cases would have on the European software market. In our view, the terms for a settlement which Microsoft offered in July of this year are not an effective remedy against the company's dominant position in the European market for desktop software.
We have published an analysis of the most important points for effective antitrust measures. I would like to draw your attention to this publication:
FSFE to EC: Don't waste an opportunity with a hasty deal http://blogs.fsfe.org/gerloff/?p=263
As stated there, our core concerns in the browser case are the following:
- Both Microsoft and OEMs must be required pre-install competing browsers on desktop computers, if their manufacturers request it
- The proposed ballot screen should be a native Windows application, should not give preference to Internet Explorer either implicitly or explicitly, and must provide an easy way to remove Internet Explorer from the system. Alternative browsers chosen by the user must be integrated into Windows to the same degree as Internet Explorer.
- The selection of browsers on the ballot screen must use clear and transparent criteria. Market share cannot be the only criterion, as that would effectively freeze today's market situation in place. Instead, the *rate of growth in market share* and availability across different platforms should be key criteria.
While the Commission has not yet issued a statement of objections regarding Microsoft's failure to share interoperability information with competitors, a settlement is being sought on this issue as well. Again, FSFE has analysed Microsoft's proposed interoperability undertaking, and has found it insufficient to establish competition in the European market for desktop software.
It is worth noting that in many cases, the strongest competitors with Microsoft's desktop applications are Free Software. OpenOffice is a case in point, constituting as it does the most widely used alternative to Microsoft Office. We therefore consider it essential that any settlement on interoperability ensures that Free Software can use the information provided by Microsoft to compete on an equal footing.
Regarding interoperability, our core concerns are:
- Microsoft must be required to provide interoperability information either royalty-free or in return for a one-time payment. Running royalties are incompatible with Free Software. The PFIF agreement [2], which resulted from the Samba case [3], provides a tested and working instance of such an agreement.
- Microsoft must provide a legally binding assurance that it will not assert those of its patents which relate to the interoperability information against Free Software. The lack of such assurance would let the company use Fear, Uncertainty and Doubt (FUD) to discourage competitors from making use of the interoperability information, leaving the remedy ineffective.
In both cases, we consider that an effective settlement is much preferable to one that is quickly achieved, but lacks the power to establish competition in the European market for desktop software.
We would like to thank you for considering these points, and hope that you find our analysis helpful. We of course remain available to provide further input.
Kind regards, Karsten Gerloff
President, Free Software Foundation Europe
[1] http://dealbook.blogs.nytimes.com/2009/09/23/antitrust-chief-in-europe- seeks-to-close-cases/