Open letter to Commissioner Kroes
Dear Commissioner Kroes,
regarding the antitrust investigations led by DG COMP against Microsoft, you have let it be known 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:
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 implicitely or explicitely, 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, which resulted from the Samba case, 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