The European Commission curtails Microsoft's abuse of dominance

Paris, December 16th, 2009. Press release.

The European Commission announced Wednesday, December 16th, 2009 that they had accepted the commitments offered by Microsoft for users to freely choose their web browser when installing Microsoft Windows1. This represents a step towards reducing the number of abuses of dominance by Microsoft however, the Commission's challenge is far from over.

This announcement is supposed to end the several-year-conflict opposing the European Commission and Microsoft regarding the bundling of Microsoft's Internet Explorer browser with the Windows operating system.

Microsoft has accepted the proposal by the European Commission to provide Microsoft Windows users with an installation option enabling them to choose their preferred browser (within a selection among the twelve most popular browsers in Europe)2.

April congratulates the European Commission for its efforts towards limiting Microsoft's abuses of dominance. However, far beyond the browser issue, the Commission should tackle all of Microsoft's anti-competitive practises, especially the bundled sales of software with PCs.

"This announcement is an interesting step. It will enable users to freely choose their web browser" said Frédéric Couchet, April's executive director. "But the basic problem can only be solved by tackling the almost systematic bundling of Windows with new computers. As long as Microsoft pre-empts the market, there will be no room for competition nor for users' free choice."

Furthermore, in its press release the Commission indicates that Microsoft revised their proposals on the disclosure of interoperability-related information. Microsoft continues to brandish its software patents, which makes their stance on interoperability considerably less convincing.

The documents clearly show that Microsoft excludes the Free Software ecosystem from accessing its formats and protocols. Most of Microsoft's formats and protocols are indeed patented, and licensing agreements rely on so-called "reasonable and non-discriminatory" conditions (RAND). These licenses impose royalties for any commercial distribution, which favours monopolies over SMEs and de facto excludes all Free Software developers.

Document "Annex E - Patent Pledge for Open Source Developers"3 clearly states that any commercial distribution of Free Software will require the acquisition of a patent license in exchange of royalties. These conditions are incompatible with Free Software licenses: Free licenses do not discriminate commercial from non-commercial uses, and thus enable both volunteer communities and companies to contribute together to Free Software projects. Furthermore, patents on software formats and protocols have no legal basis in the European Union and continue to be a grey area in current USA legislation; therefore they should not be part of interoperability agreements.

"As usual when Microsoft deals with interoperability, the devil is in the details. Microsoft is very aware that a clause on commercial uses excludes Free Software developers from this interoperability agreement." said Benoît Sibaud, April's president.

April calls on the European Commission to maintain its efforts against Microsoft's abuse of dominance. April urges the Commission to reject the new interoperability agreement proposed by Redmond and to take charge of the PC+Windows bundling issue in order to open the European market to competition, innovation and freedom.

  • 1. See the European Commission's press release: Antitrust: Commission accepts Microsoft commitments to give users browser choice
  • 2. See Antitrust: Commission accepts Microsoft commitments to give users browser choice - frequently asked questions
  • 3. See Microsoft Statement on European Commission Decision: "Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you as an open source software developer ("You") for making, using, importing, or distributing any implementation of the Technical Documentation ("Covered Implementation"), subject to the following. This is a personal promise directly from Microsoft to You, and You acknowledge it is a condition of benefiting from it that no Microsoft rights are received from suppliers, distributors, or otherwise by any other person in connection with this promise. To benefit from this promise, you must be a natural or legal person participating in the creation of software code for an open source project. An "open source project" is a software development project the resulting source code of which is freely distributed, modified, or copied pursuant to an open source license and is not commercially distributed by its participants. If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities."