Archive for February, 2009

In the last post I listed potential principles and noted I’d try to say a bit more about each. Here’s the first principle.

Principle: Microsoft must not undermine consumer selection of non-Microsoft browsers.

Rationale: Once a person has chosen Firefox or Opera or another browser this choice should be respected. Neither Windows nor IE should use the presence of IE to encourage or promote a return to IE, or to automatically open a different web browser than that which the user has selected. Otherwise, the monopoly presence of Windows on 90+% of the world’s personal computers means that people are forced to choose alternative products over and over again.

Some Specifics:

• Use of IE for operating system purposes cannot bleed into web browsing
• IE must close after OS purposes complete
• IE may not ask to become the default browser or make itself the default browser except in specified legitimate circumstances, like perhaps when a person downloads IE separately from Windows or from a Windows update

It will be useful to identify the ways in which Microsoft products — including Office, as suggesting in a previous comment — lead people to IE, or open IE as the browser even when another browser has been selected as the default. Feel free to add them here or let me know through other channels.

This post is a list of potential principles derived from the various discussions so far, plus a clarifying example or two for some of the principles.   In subsequent posts I’ll say a bit more about each potential principle and how it might be accomplished, though I’ll be equally happy if this post is enough to spur a good discussion.

These are identified as potential principles on purpose; this is not a list of Mozilla recommendations.   This list includes a spectrum of potential principles, some of which seem uncontroversial and some of which have already proved highly controversial.   We may also find agreement on a principle and a vigorous discussion on how to best implement it.  These potential principles are the beginning of a discussion, not the end.

Potential Principles

1. Windows cannot subvert a person’s choice of an alternative browser.

Some examples of what this might mean in practice:

• Windows cannot condition a person’s ability to stay secure and/ or update Windows on the use of IE
• Microsoft cannot condition a person’s ability to access the MS website or MS services on use of IE
• Use of IE for operating system purposes cannot bleed into web browsing
• Functionality of the operating system cannot be degraded for users of alternative browsers

2. Windows can’t provide a technical advantage to IE.
An example of what this might mean in practice:

• Microsoft must make all  API and access points that are available to IE available  to other browsers on the same terms

3.  Windows must enable people to choose other browsers.
Some examples of what this might mean in practice:

• Option to download other browsers must be presented when a user is updating IE
• Option to download other browsers must be presented when a user is updating Windows
• IE may not ask to become the default browser or make itself the default browser except  in specified legitimate circumstances, like perhaps when a person downloads IE separately from Windows or from a Windows update
• Windows must ship with alternative browsers installed and offer users a choice
• Windows may not include a browser (“untying” required).  (This implementation of the principle has some obvious drawbacks for users.)

4. Microsoft’s financial and other incentives to distributors must be browser-neutral.

5.  Microsoft must educate people about other browsers (or fines levied against Microsoft should be used to support open source projects and education).

6.  Microsoft tools for developing content must not produce IE specific or Windows-specific results.

7.  IE must meet specified web “standards.” (This request was included in Opera’s complaint, generally not well received by the Mozilla community.)

Update 2/26: Revised item 7 to better reflect Opera’s position:

7. IE must comply with web standards. (Opera has suggested that Microsoft must support web standards they have promised to support).

We’ve had a reasonably full discussion of the harm to browser innovation and competition caused by Microsoft’s activities. It’s time to turn to the question of an effective response from the EC. There’s already been a lot of back and forth on possible remedies, but I’d like to start from a different point.

Let’s start by identifying the principles that might underlay any potential remedy: What goal, or principle, do we hope a remedy accomplishes?

Actual remedies can then be derived from these principles. Any remedy is likely to end up being complex, detailed, perhaps procedural, and a topic of long discussions between the EC and Microsoft. We won’t all be able to be involved in these discussions, even if we have the time and focus. We can however, articulate principles that we believe a remedy should meet, that the interested lay person can understand, and that we can use to evaluate the remedies that are ultimately crafted.

I’ll identify some potential principles in my next post.

This idea sounds sort of reasonable at first, but it’s built on a logical fallacy.

The claim is that the tying of IE to Windows harms competition, innovation and user choice in browsers. Microsoft does not need to be 100% successful for this claim to be true. A single plant growing in a toxic environment does not mean that the environment is suddenly healthy. It doesn’t mean that all concern with the environment should fade or that attempts to improve the environment should be abandoned. That plant may be prosperous, but still deeply constrained by its environment.

Mozilla is extremely healthy, but still constrained by the environment IE has created. We’re constrained in being able to reach people of course, since IE is utterly ubiquitous and hides the possibilities of alternatives. We’re constrained in other ways as well. We’re constrained in our ability to enable new innovations — we need to find ways to make the Internet continue to work for the hundreds of millions of IE users who only Windows-based distributions reach. We’re constrained in the ability to build new standards into the Internet itself. In parts of the worlds — Asia in particular — we’re still highly constrained in our ability to even display web content, due to IE specific content.

And of course, the EC’s concern is not simply whether a single, unique “plant” like Mozilla can survive and prosper against all odds. The question is whether competition and innovation themselves are being harmed.

This theme actually has two related topics.

1. Government shouldn’t get involved with technology.

There’s no disagreement that technology is best developed by technologists and entrepreneurs rather than government.

Government does have a role to play in consumer protection. Governments regulate the formation of companies, they require disclosure for some companies, they regulate the quality of products. Some governments also protect consumers by identifying certain kinds of competitive activities as unacceptable.

One could say that competition laws in general are bad, or competition laws relating to monopolies are bad. Maybe that’s what the comments are saying. But when these laws exist, I don’t understand the argument that technology companies should be exempt.

2. Mozilla should not get involved with the EC.

I wonder if this argument stems from the belief that the EC will reverse course if Mozilla doesn’t get involved. This is flattering in a way, but it doesn’t reflect our experience. The EC has been looking at this case December of 2007 when Opera filed its complaint. The EC has made its decision to move forward without Mozilla involvement and it seems wildly speculative to me to think the EC depends on Mozilla.

This argument may also be a way of expressing concern over the potential remedies. As I noted in a prior post, I think it’s deeply unwise for Mozilla to sit out the remedy discussions and learn what the EC is thinking after a final decision.

It’s also possible this argument stems from the idea that Microsoft hasn’t done anything except compete. If one rejects the idea that there is any limit on corporate competitive behavior this idea makes sense. If one accepts that corporations — just like individual human beings — face some restrictions in how they pursue their competitive goals, then the picture of Microsoft’s activities that emerges becomes quite different.

Microsoft did not obtain its IE hegemony solely through competition on the merits of IE. A number of illegal activities were also involved in creating IE’s market dominence. At the end of this post I’ve included below some very brief excerpts from the US District Court Finding of Facts that describe some of these activities.

One might still wonder what the EC should do today as a result. But the idea that Microsoft is an innocent victim is deeply flawed.

” . . . Microsoft has done much more than develop innovative browsing software of commendable quality and offer it bundled with Windows at no additional charge. . . . . Microsoft forced those consumers who otherwise would have elected Navigator as their browser to either pay a substantial price (in the forms of downloading, installation, confusion, degraded system performance, and diminished memory capacity) or content themselves with Internet Explorer. . . . The ultimate result is that some innovations that would truly benefit consumers never occur for the sole reason that they do not coincide with Microsoft’s self-interest.”

A number of comments in the EC – Microsoft discussion have asked why Microsoft would be treated differently than everyone else, or shouldn’t be able to do whatever it wants with Windows.

Microsoft is treated differently because of the monopoly status of its Windows operating system. Having a monopoly position has enormous consequences, both business and legal. A monopoly exists when a single entity controls nearly all of the market for a given type of product. Or, to quote from Wikipedia “a monopoly . . . exists when a specific individual or enterprise has sufficient control over a particular product or service to determine significantly the terms on which other individuals shall have access to it.” By the mid-1990’s Microsoft Windows had over 90% market share for Intel-based personal computer operating systems, and was moving closer to 95%.

Being a monopoly has some great rewards for a company. It can mean very little pressure on price or quality, even for a critical product. But a monopolist is not free to do whatever it wants to protect its dominant market position. A variety of governments, including the EU, have concepts of unfair competition. These concepts include limits on what a monopolist like Microsoft can do. Both the EC and the US courts have found Microsoft guilty of engaging in impermissible activities with regard to its Windows monopoly.

So to answer the question, yes there is a reason for singling Microsoft out: it alone has a monopoly on (Intel based) personal computer operating systems.

If we drop the word “only” out of this sentence I suspect we have 100% agreement. Building the Internet that we want to live in is the fundamental reality of Mozilla. This is our shared purpose, and it’s what makes us effective.

But is building Firefox the only appropriate response to problems in the market? The EC has initiated action that is intimately and directly related to the world we are building. I believe we must get involved; that ignoring this is like “putting our head in the sand.”

At the very least we should offer our expertise to the EC. Competition in the browser space is important because it is critical to building an innovative, open and participatory web. We have experience in this area that is unusual if not unique. We have a chance to bring this expertise to the EC as it moves forward. I would feel remiss if Mozilla were to let this opportunity go by.

In my last post I listed a set of themes I’d like to address regarding the EC and Microsoft.  I expect to post in roughly the order listed.   But first I want to comment on the remedies issue briefly.

Most of the discussion of potential remedies focuses on either shipping Windows without a browser or on a “must-carry” requirement, which Microsoft described in its recent filing with the U.S. Securities and Exchange Commission.   These may be the most obvious possible remedies, but they are not the only, or even necessarily the best possible remedies.

I think everyone agrees that a good remedy is difficult to craft.  There’s great disagreement over whether it is appropriate to try.  I’m going to describe in subsequent posts why I think it’s appropriate to offer Mozilla’s expertise to the EC rather than simply wait to see what happens.

It would also be good to have a wide-ranging discussion of possible remedies.  We’ll undoubtedly find that most possible remedies are flawed, some so deeply that they might be worse than doing nothing.  We may find some remedies that will improve the situation.  I’m inclined to think this is the case, although I too understand the complexity of the setting.   If that discussion hasn’t developed before I finish a couple of the posts I listed above, I’ll try to spark it with some suggestions.

The discussion about the EC and Microsoft has a number of themes. I see these themes reflected in the response to my post and in the discussion in general. Some have been raised by Mozilla contributors. I’m going to try to respond to these general themes, although not every comment specifically. I’m going to start by addressing the themes in separate messages; I think that will make the discussions easier.

The themes I see so far are:

• Private responses, such as building Firefox, are the only appropriate response.
• Microsoft should be able to do whatever it wants;  there’s no reason to treat Microsoft differently than anyone else.
• Government should have no role in technology, and Mozilla should not spend time with the EC.
• People can choose an alternative browser, so there’s no problem.
• All the remedies I can think of all have some serious problem:  they are too late, they are backward-looking, or the don’t seem likely to  help the consumer.

There may be other themes that appear or that I’ve missed with this first pass. Or two may show up as part of the same message, I’m not sure yet since I haven’t written them. But these are the topics I know now that I want to address.

Last month the European Commission stated its preliminary conclusion that “Microsoft’s tying of Internet Explorer to the Windows operating system harms competition between web browsers, undermines product innovation and ultimately reduces consumer choice.”

In my mind, there is absolutely no doubt that the statement above is correct. Not the single smallest iota of doubt. I’ve been involved in building and shipping web browsers continuously since before Microsoft started developing IE, and the damage Microsoft has done to competition, innovation, and the pace of the web development itself is both glaring and ongoing. There are separate questions of whether there is a good remedy, and what that remedy might be. But questions regarding an appropriate remedy do not change the essential fact. Microsoft’s business practices have fundamentally diminished (in fact, came very close to eliminating) competition, choice and innovation in how people access the Internet.

Let’s think back for a moment to the activities in question. In the mid-1990s Microsoft began developing Internet Explorer in response to the success of the product known as Netscape Navigator. In this period Microsoft developed a fine product (particularly the version known as IE 4). Kudos to Microsoft for this. Microsoft also promoted IE through activities that the US Department of Justice and the U.S. Courts determined to be illegal. As result, Internet Explorer ended up with well over 90% market share. Once this happened, Microsoft stopped browser development; even disbanding its browser team. The product stagnated and then became a prime vector for bad actors to inject spyware onto consumers’ computers. There was no meaningful response or innovation from Microsoft. Despite this, there was no effective competition from the marketplace, no commercial entities gaining success with other products. This is not surprising — I don’t think there has been a single example of anyone ever regaining market share from a Microsoft monopoly until Mozilla Firefox.

As it turns out, Microsoft hasn’t succeeded in stamping out all competition. Firefox has made a crack in the Microsoft monopoly. And, given a choice, a significant part of the European Union citizens have opted to use Firefox. This does not mean Microsoft’s activities haven’t done significant damage, or aren’t still benefiting Microsoft in ways that reduce competition, choice and innovation.

Equally important, the success of Mozilla and Firefox does not indicate a healthy marketplace for competitive products. Mozilla is a non-profit organization; a worldwide movement of people who strive to build the Internet we want to live in. I am convinced that we could not have been, and will not be, successful except as a public benefit organization living outside the commercial motivations. And I certainly hope that neither the EU nor any other government expects to maintain a healthy Internet ecosystem based on non-profits stepping in to correct market deficiencies.

Second, non-profit or not, Mozilla Firefox is an anomaly — the only product so far to even dent the competitive advantage Microsoft created for itself through its tainted activities. A single anomaly does not indicate a healthy, competitive, or innovative system.

Third, the damage caused by Microsoft’s activities is ongoing. Mozilla Firefox has made a crack in the Microsoft browser monopoly. But even so, hundreds of millions of people use old versions of IE, often without knowing what a browser is or that they have any choice in the quality of their experience. This makes it very difficult to bring innovation, choice or improved user experience to vast parts of the Internet.

The extent of the damage is so great that it makes it difficult to figure out an effective and timely remedy. I believe it’s worth some effort to try. It’s easy to look at Firefox market share and assume the problem is gone or the damage is undone. But that’s not the case. The drag on innovation and choice caused by Microsoft’s actions remains. At Mozilla we work to reduce this drag through direct action, and the results are gratifying. If the EC can identify an effective remedy that also serves to improve competition, innovation and choice, I would find it most welcome.

I’ll be paying close attention to the EC’s activities, both personally and on behalf of Mozilla. Mozilla has enormous expertise in this area. It’s an extremely complex area, involving browsers, user experience, the OEM and other distribution channels, and the foundations for ongoing innovation. An effective remedy would be a watershed event; a poorly constructed remedy could cause unfortunate damage.

I’d like to offer Mozilla’s expertise as a resource to the EC as it considers what an effective remedy would entail. I’ll be reaching out to people I know with particular history, expertise and ideas regarding these topics. If you’ve got specific ideas or concerns please feel free to contact me. I’ll post more as the discussion develops.