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<html newsdate="2009-10-05">
<version>1</version>
<head>
<title>Browser bundling - Open letter to Commissioner Kroes</title>
</head>
<body>
<h1>Open letter to Commissioner Kroes</h1>
<p>Dear Commissioner Kroes,</p>
<p>regarding the antitrust investigations led by DG COMP against Microsoft, you
have <a
href="http://dealbook.blogs.nytimes.com/2009/09/23/antitrust-chief-in-europe-seeks-to-close-cases/">let
it be known</a> 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.</p>
<p>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.</p>
<p>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.</p>
<p>We have published an analysis of the most important points for effective
antitrust measures. I would like to draw your attention to this
publication:</p>
<ul>
<li><a href="https://blogs.fsfe.org/gerloff/?p=263">FSFE to EC: Don't waste an opportunity with a hasty deal</a></li>
</ul>
<p>As stated there, our core concerns in the browser case are the
following:</p>
<ul>
<li>Both Microsoft and OEMs must be required pre-install competing browsers
on desktop computers, if their manufacturers request it</li>
<li>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.</li>
<li>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
<em>rate of growth in market share</em> and availability across different
platforms should be key criteria.</li>
</ul>
<p>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.</p>
<p>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.</p>
<p>Regarding interoperability, our core concerns are:</p>
<ul>
<li>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 <a
href="http://www.protocolfreedom.org/PFIF_agreement.pdf">PFIF
agreement</a>, which resulted from the <a
href="/activities/ms-vs-eu/ms-vs-eu.html">Samba case</a>, provides a
tested and working instance of such an agreement.</li>
<li>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.</li>
</ul>
<p>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.</p>
<p>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.</p>
<p>Kind regards,</p>
<p>Karsten Gerloff</p>
<p>President, Free Software Foundation Europe</p>
</body>
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<tag key="european-commission">European Commission</tag>
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<tag key="antitrust"/>
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