February 9th, 2009

Mozilla chief backs Opera's browser-bundling complaint against Microsoft

Posted by Mary Jo Foley @ 7:26 am

Categories: Corporate strategy, Internet Explorer, Legal

Tags: Opera Software, Microsoft Internet Explorer, Microsoft Corp., Web Browser, Mozilla Corp., EC, Microsoft Windows, Web Browsers, Operating Systems, Software

Unsurprisingly, the head of the Mozilla Foundation is backing Opera Software’s browser-bundling complaint against Microsoft.

Mitchell Baker, Chief Executive of the foundation, has gone on record saying she concurs with the European Commission’s 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.” (The “preliminary conclusion,” which is roughly equivalent to a preliminary finding, is the result of an antitrust complaint Opera lodged against Microsoft in December 2007. The EC issued the finding in mid-January 2009.)

I agree with Baker that Microsoft’s tying of IE to Windows hurt competition. Although Microsoft argued more than ten years ago in its antitrust case here in the U.S. versus the Department of Justice that IE was part of Windows, I — and many other observers — never felt Microsoft proved its case. However, Microsoft was not forced by the U.S. court to unbundle IE and, since that time, has been allowed to continue to ship IE with every copy of Windows.

Allowing Microsoft to make IE the default browser in Windows the courts has put a damper on Microsoft’s competitors. The real question now is what could and should be done — at this late date — to fix this fact.

Mitchell blogged on February 6 that “(t)here are separate questions of whether there is a good remedy, and what that remedy might be.” In her post, she never suggested that remedy should be (though did offer her counsel to the EC, if they want/need it).

The remedy is what’s key here — not “proof” that Microsoft’s behavior hurt its competitors. What kind of action would provide more customer choice?

Opera officials have said they are in favor of the EC requiring Microsoft to either push other browser to users via Microsoft’s own patch/updating mechanisms, like Windows Update; and/or requiring Microsoft to distribute other vendors’ browsers with Windows. (So far, happily no one has suggested Microsoft be required to remove IE from Windows and sell a completely browser-free version in the EC. That strategy, required by the EC in the case of Media Player, resulted in a version of Windows that consumers don’t want and aren’t buying.)

Few company observers seem to think even the Microsoft-bashing EC would go so far as to require Microsoft to use its own update mechanism to distribute its competitors’ products. But making Microsoft put the  Firefox, Opera and Chrome bits on the Windows DVD? That seems like something the EC just might do.

The next question becomes: If the EC requires Microsoft to offer users a choice of browsers will this delay delivery of Windows 7 in the EU? Will Microsoft argue that it will have to “un-integrate” IE from the rest of Windows before it can proceed?

What do you think is going to happen next in the EC browser-bundling case? Do you feel forcing Microsoft to distribute its competitors’ browsers alongside IE would help consumers — and not just Microsoft’s competitors?

Update: Hmm…. What do the Firefox crew want?  Firefox architect Mike Connor is quoted saying he’s dead-set against Firefox being bundled with Windows and that Opera’s browser-bundling argument that is the crux of its EC complaint is misguided.