The European Commission is now designing software. And that software is Microsoft Windows…

Comments of Adam Marcus & Berin Szoka to the European Commission on the Matter of Microsoft’s Browser Ballot Proposal, COMP/C-3/39.530 — Microsoft (Tying)*

Submitted Nov. 9, 2009 [PDF of filing]

We applaud the Commission for not repeating its earlier approach to concerns about tie-ins to Microsoft Windows by ordering Microsoft to cripple the functionality of its operating system— such as occurred with the Windows Media Player.  While a “browser ballot” is certainly a less restrictive approach, we remain unconvinced that mandating such a ballot is necessary in this case, and concerned about the precedent that government intervention may set here for the future of the highly dynamic and innovative software sector.  If, however, a ballot is to be required, we encourage the Commission to accept Microsoft’s ballot as proposed.

A Browser Ballot Mandate Is Not Necessary

The European Community’s Discussion Paper on exclusionary abuses recognizes that bundled discounts infringe Article 82 only when the discount is so large that “efficient competitors offering only some but not all of the components, cannot compete against the discounted bundle.”[1] In this case, a number of alternative browser producers have successfully competed against Internet Explorer in the past—despite it being bundled with Microsoft’s Windows operating system.

Consumers in Europe and elsewhere have more browser choices today than ever before—as indicated by the fact that Microsoft’s proposed browser ballot would include provide users a choice among twelve different Web browsers.[2] While Microsoft’s Internet Explorer remains the most popular browser in Europe, its market share is slipping rapidly.[3] Indeed, in at least two European countries (Hungary and Slovakia), Firefox appears to have supplanted Internet Explorer as the leading Web browser.[4] No matter which statistics are used, Internet Explorer’s share of the Web browser marketplace has been steadily declining since at least 2001.[5]

The fact that Internet Explorer still holds a majority market share is not, ipso facto, evidence that Microsoft is abusing its position in the operating system market.  Microsoft does not prevent or hinder users from downloading, installing, and using other Web browsers on their computer if they choose to.  While Firefox may well be the popular choice of the digerati, many users may prefer Internet Explorer because of its greater simplicity (perceived or otherwise).  For example, some users may not want to tinker with plug-ins, and may even be turned off by the windows that regularly appear upon startup of Firefox asking the user to update the browser or plug-ins.[6]

Search engines make finding an alternative to Internet Explorer incredibly easy.  Indeed, the top five Google search results for the word “browser” include links to the four most popular alternatives to Internet Explorer (Mozilla Firefox, Opera, Google Chrome, and Apple Safari).  The fifth link is to a Wikipedia page explaining what a Web browser is.  Internet Explorer appears only on page two of Google search results.

There are many ways of promoting alternative browsers.  Any browser developer can use search engine marketing (paid search ads) or search engine optimization (strategies to cause their websites appear higher in search results for relevant keywords).  Just as importantly, Google and Apple both have the opportunity to promote their browsers in their wildly popular consumer products.  Google has included links to its Chrome browser from its search engine, while Apple has bundled its Safari browser with iTunes and QuickTime, such that users who update the latter are encouraged to download the former.  These are all legitimate ways to promote browsers and indicate that the operating system is not the only point of access to consumer’s attention regarding browser choices.

Mandating a Browser Ballot Sets a Dangerous Precedent of Government intervention

The European Commission believes that “PC users should have an effective and unbiased choice between Internet Explorer and competing web browsers.”[7] But users already have a choice and, as explained above, many are exercising it.  Furthermore, nearly all Web browsers for the PC are available for free and users don’t have to choose just one—they can install, and use simultaneously, as many as they want.  The current controversy is no different than previous controversies over whether, for example, buyers of new automobiles should be allowed to purchase an automobile without the factory-installed radio or tires.[8]

There is little question that a Web browser is a required application for any Internet-connected computer.  It is thus not surprising that Microsoft would bundle a Web browser with its operating system—and why wouldn’t Microsoft bundle its own Web browser?  The user can, of course, use that browser to easily find and download another browser.

Should other manufacturers that pre-install their own browsers in their products be required to offer a similar browser ballot? Apple bundles its own Safari browser in its desktop and iPhone operating systems.  Research In Motion bundles its own browser in its Blackberry mobile phones. Even most distributions of Linux include a bundled Web browser.  The CTO of Opera, the company that initiated the current controversy, thinks it would be a “good idea” for other operating systems to include a browser ballot.[9] Where will this “Browser Neutrality” thinking end?[10]

Such mandates could easily extend to require ballots for choosing one’s default search engine, media player, instant messaging client, email provider, and so on.  While a ballot may indeed be a reasonable way for a company to offer meaningful choice and allay legitimate concern about any “market power” it might be alleged to possess, government should tread cautiously in such matters, and avoid injecting political decision-making into the software design process.  The threat of regulation already appears to be “chilling” Microsoft’s design decisions.  Most notably, the company excluded a number of applications from Windows 7: Outlook Express, Windows Mail, Windows Calendar, Windows Address Book, Windows Messenger, Windows Movie Maker, and Windows Photo Gallery.[11] Windows Movie Maker had been included in every version of Windows since Windows Me was released in 2000.[12] “Regime uncertainty” about how antitrust regulators might view the bundling of such applications or what kind of “choice mechanism” might be mandated simply does not benefit consumers if it discourages companies like Microsoft from including useful tools in its software—or encourages them to cripple the functionality of those tools, if included, such as making Internet Explorer harder to access.

Microsoft’s Proposed Browser Ballot

Microsoft’s proposal suggests a number of technical issues that may result in confusion for users and additional work for network administrators:

• Microsoft plans to roll out the update as an “Important” or “High Priority” update,[13] which will mean that the update will be installed automatically and the ballot screen will appear without warning.  This may confuse unsophisticated users who may believe the new pop-up window is attempting to install a virus.
• The fact that the browser ballot update removes the Internet Explorer icon from the Windows taskbar means that if the user does not select Internet Explorer (which will presumably restore the Internet Explorer icon) when the ballot first appears, they may be left not knowing how to access Internet Explorer.
• Without an easy way for network administrators to prevent the browser ballot from appearing in enterprise environments, the technical support burden the browser ballot will be shifted to network administrators who will have to explain to their users how to respond to the ballot—which could particularly burden small enterprises with limited administrative resources.  Microsoft will also need to be careful to ensure that in environments where users are prevented from installing additional software, the browser ballot does not subvert that policy.
• If the standard user account control (UAC) warnings are bypassed, as Opera has suggested, this could open a security hole that could then be exploited by malicious software.[14]

While such questions should make the commission think very carefully about the necessity of requiring a browser ballot at all, the Commission should, at the very least, leave such technical matters to the experts at Microsoft so long as the company fairly presents the choices of browsers available to consumers, as it has done in its proposal.  While it might be possible to somewhat increase the “fairness” of the ballot by, for example, randomizing the order in which browser choices appear, Microsoft’s proposal presents consumers multiple options in a manner that is fair enough.  Recognizing the value in consistency of user experience and the fact that it is Microsoft that will have to deal with the technical support burden (and negative reputational effects) the browser ballot is likely to cause, the Commission should defer to Microsoft’s design choices and avoid descending down the slippery slope of micromanaging user interface design.  Annoying menus and pop-ups were widely blamed for the unpopularity of Windows Vista and did real harm to Microsoft’s reputation for usability— which the company is now working hard to overcome with Windows 7.  Simply put, “Too many cooks spoil the stew.”

Conclusion

Properly understood, “Antitrust law protects competition, not competitors.”[15] With so many browser choices and evidence that consumers are fully capable of finding new browsers on their own, it remains unclear that any browser ballot need be mandated to “ensur[e] genuine consumer choice.”[16] But if such a ballot is in fact necessary, Microsoft’s proposal should be approved by the Commission.

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* Adam Marcus is Research Fellow and Senior Technologist at The Progress & Freedom Foundation.  Berin Szoka is Director of the Center for Digital Media Freedom at The Progress & Freedom Foundation.  The views expressed in these comments are their own, and are not necessarily the views of the PFF board, fellows or staff.

[1] Directorate-General for Competition, Eur. Comm’n, Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses (Dec. 2005) ¶ 189, available at http://ec.europa.eu/comm/competition/antitrust/art82/discpaper2005.pdf. The Discussion Paper is a consultation document, prepared by the staff of the DG Competition. It has not been published at the Official Journal of the European Communities and therefore does not produce any legal effect.

[2] Neelie Kroes, European Commissioner for Competition Policy, “Power transformers cartel busted; Microsoft web browsers case,” Opening remarks at press conference, Brussels, Oct. 7, 2009, http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/447&format=HTML&aged=0&language=EN&guiLanguage=en.

[3] StatCounter Global Stats, Top 5 Browsers in Europe from Jul 08 to Nov 09, http://gs.statcounter.com/#browser-eu-monthly-200807-200911.

[4] AT Internet Institute, “Internet Explorer seriously shaken up by rival browsers in Europe,” Nov. 2, 2009, http://www.xitimonitor.com/en-us/browsers-barometer/browser-barometer-september-2009/index-1-2-3-180.html?xtor=11.

[5] For a number of statistics, see Wikipedia, Usage share of web browsers, http://en.wikipedia.org/wiki/Usage_share_of_web_browsers (last accessed Nov. 8, 2009).

[6] See, e.g., Adam Thierer, “Another Problem for the Zittrain Thesis—Old People!,” Technology Liberation Front, Apr. 12, 2008, http://techliberation.com/2008/04/12/another-problem-for-the-zittrain-thesis-old-people/.

[7] Neelie Kroes, European Commissioner for Competition Policy, “Power transformers cartel busted; Microsoft web browsers case,” Opening remarks at press conference, Brussels, Oct. 7, 2009, http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/447&format=HTML&aged=0&language=EN&guiLanguage=en.

[8] See, e.g, Automatic Radio Mfg. Co. v. Ford Motor Co., 272 F.Supp. 744 (D. Mass, 1967), aff’d, 390 F.2d 113 (1st Cir. 1968).

[9] NetworkWorld, “EC decision expected to force IE to better support standards,” July 24, 2009, http://www.networkworld.com/community/node/43851 (“Q: In your opinion, should Apple also be expected to offer a ballot box for its competitors? Should Ubuntu? A: … it may be a good idea.”).

[10] Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, “Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction,” Progress Snapshot No. 5.11, Oct. 2009, http://www.pff.org/issues-pubs/ps/2009/ps5.11-net-neutrality-MAD-policy.html.

[11] Microsoft, “Finding your applications in Windows 7,” http://download.live.com/windows7 (last accessed Nov. 8, 2009). See also Brad Linder, “What’s not in Windows 7? Windows Movie Maker, Windows Mail, etc,” DownloadSquad, Nov. 3, 2008, http://www.downloadsquad.com/2008/11/03/whats-not-in-windows-7-windows-movie-maker-windows-mail-etc.

[12] Press Release, Microsoft, Microsoft Announces Immediate Availability Of Windows Millennium Edition (Windows Me), Sept. 14, 2000, http://www.microsoft.com/Presspass/press/2000/sept00/availabilitypr.mspx; PapaJohn, Windows Movie Maker in Windows 7, Bright Hub, Oct. 29, 2009, http://www.brighthub.com/multimedia/video/articles/22658.aspx.

[13] Microsoft, Proposed Commitment ¶ 9, July 24, 2009, http://www.microsoft.com/presspass/presskits/eu-msft/docs/07-24-09Commitment.doc.

[14] Gregg Keizer, Report: Browser makers contest Microsoft browser ballot deal, SFGate, Nov. 5, 2009, http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2009/11/05/urnidgns852573C40069388000257665005C1B49.DTL.

[15] Thomas Barnett, head of the Department of Justice’s Antitrust division, “Interoperability Between Antitrust and Intellectual Property,” Presentation to the George Mason University School of Law Symposium, Managing Antitrust Issues in a Global Marketplace, Washington, DC, Sept. 13, 2006, available at http://www.justice.gov/atr/public/speeches/218316.htm, citing Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224 (1993) (“It is axiomatic that the antitrust laws were passed for ‘the protection of competition, not competitors.’“ (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962))).

[16] Press Release, European Commission, Antitrust: Commission welcomes new Microsoft proposals on Microsoft Internet Explorer and Interoperability, MEMO/09/352, http://europa.eu/rapid/pressReleasesAction.do?reference=
MEMO/09/352&format=HTML&aged=0&language=EN&guiLanguage=en.