[FSFE PR][EN] Microsoft antitrust case: FSFE offers analysis to European Commission

Thomas Jensch jensch at fsfeurope.org
Tue Oct 6 12:31:12 CEST 2009

= 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:

     (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.

(253 words / 1665 characters)

== 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
  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

As stated there, our core concerns in the browser case are the

 - 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

 - 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-

[2] http://www.protocolfreedom.org/PFIF_agreement.pdf

[3] http://fsfe.org/projects/ms-vs-eu/ms-vs-eu.en.html
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