Microsoft dominance challenged
OUT-LAW Radio, 10/01/2008
We talk to the small European browser maker which is taking an
ambitious case against Microsoft, and we look at the future of
mobile phone tracking.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello, happy New Year and welcome back to OUT-LAW Radio,
the weekly podcast that keeps you up to date on all the twists and
turns in the world of technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and this week we talk to the web
browser minnow who is taking Microsoft to task and we find out why
in five years' time your mobile phone might be spying on you.
But first, the news:
- Apple may cut download catalogue after lowering prices and
- European Commission wants pan-European copyright
Apple will lower its prices for music downloads in the UK
following pressure from consumer lobby group Which? but Apple has
warned it could lead to cuts in its UK catalogue.
Apple charges 79p for single song downloads in the UK and 99
cents in European countries which have adopted the euro. Which?
said that the UK prices worked out at around 20% higher than in the
euro-zone.
Apple, though, said that it might cut its catalogue if labels
continue to charge more for music in the UK than in Europe.
The company said that it would reconsider its continuing
relationship in the UK with any record label that does not lower
its wholesale prices in the UK to the pan-European level within six
months.
The European Commission says European media businesses should be
able to offer creative content in a single legal environment. It
has launched a consultation that calls for multi-territory licences
and interoperable digital rights management (DRM) systems.
The Commission has said that the fact that Europe has a large
number of national laws on copyright and other intellectual
property rights is holding its music, film and games industries
back. It wants to "facilitate" multi-territory copyright licences
in response to the problem.
Digital media rights activists, though, have warned that the plan
covers much more ground than just copyright, and that consumer
rights could be damaged by it. Becky Hogg, executive director of
the Open Rights Group. Hogg: It seems to me they are proposing a
lot more than just a cross-Europe licensing scheme. There is stuff
here about transparency and inter-operability in digital management
rights systems. There is stuff about codes of conduct between
internet service providers and right holders to encourage legal
access and in fact discourage unauthorised file sharing. This is a
lot more than just a cross-Europe licensing scheme and we will be
looking at it very carefully.
That was this week's OUT-LAW News
Just weeks after a Brussels court backed a European Commission
fine of hundreds of millions of euros for anti-competitive
behaviour, Microsoft was facing even more charges of abusing its
near monopoly in the operating system market.
This time, the accuser was a true David to Bill Gates' Goliath,
it was Opera, a 450 person Norwegian browser maker spun out of a
mobile phone network. Microsoft employs 79,000 people.
Last December Opera filed a complaint with the European
Commission claiming that Microsoft is stifling competition,
bullying the web into falling into line with its own plans.
Opera wants eurocrats to force the software giant to stop
including its Internet Explorer web browser with its windows
operating system. If it won't do that it wants the company to be
forced to include competitors such as Opera, or Firefox, with every
copy of Windows sold.
The claim is wildly ambitious, striking at the heart of
Microsoft's dominance of the way we use computers. But Opera chief
executive Jon von Tetchzner said that to understand the case we
need to think back to a time when browsers were actually sold
separately to operating systems, when there was more choice and
more competition.
von Tetchzner: Everyone now is used to
have the browser being part of the operating system but in the old
days it wasn't part of the operating system in Microsoft it was
actually a separate product that was being sold and as Microsoft
was not doing very well in the competitive landscape they included
the browser with the operating system to compete more fiercely. I
think this is part of normal antitrust laws, you can't tie items to
a monopoly product.
The argument is simple: by including a free copy of Internet
Explorer Microsoft is using its dominance in the operating system
market to shut out other browser makers.
von Tetchzner said that the basis of the case is a simple point of
competition law.
von Tetchzner: Microsoft started by
integrating Internet Explorer into Windows some time ago and as a
monopoly in the operating system market Microsoft has to follow
certain rules and they have, by tying in Internet Explorer, they
have limited competition in the market.
This is obviously bad news for Opera, but should the rest of us
care? von Tetchzner says yes, because of the second leg of his
firm's complaint: that the dominance of Explorer is corrupting the
way the web works.
The reason all the world's computers can talk to each other over
the internet is that they adhere to agreed technical standards
governing how they communicate. von Tetchzner says that Microsoft
ignores these, to all our cost.
von Tetchzner: They have also undermined
web standards by implementing only parts of the standards and then
inventing their own extensions and by doing that making it very
difficult for web developers to actually to define pages that
support multiple repro houses and also by doing that reducing
competition in the market.
Because almost everyone uses Explorer, web designers naturally
enough make their sites comply with its own rules, not the
standards, that in turn makes more people use explorer, said von
Tetchzner.
von Tetchzner: Because the browser is
included with the operating system it automatically gets a very
high market share because to get this market share it actually
reinforces itself because again sites could for IE which means that
they could not work in other browsers and that may make it very
difficult for people to use other browsers. One of the complaints
that typically is said of competing browsers, whether that's us or
Firefox or anyone else is that the sites don't work and the reason
the sites don't work is that because they have typically been coded
for IE's specific implementation since they have been coded for the
standards.
Microsoft is likely to oppose the claims with vigour. It told
OUT-LAW that computer users are free to use and set as default any
browser they wish, including Opera. It also said that PC
manufacturers can install any browser as a default program on any
machine they sell. von Tetchzner said that this is not enough.
von Tetchzner: Obviously people can
download another browser but the fact that the browser is included
precludes people from seeing the choices that are available. To
ensure that people have choice they are to be informed that there
is choice.
The last Commission case against Microsoft took years to
resolve, but von Tetchzner said he is confident that its case would
be over more quickly because it covers similar ground.
Any alternative browser firm will feel the same way as Opera, but
it is the one taking action. I asked von Tetchzner why.
von Tetchzner: Someone has to do it,
right? I do believe the internet is just such an extremely
important place. You don't want it to be governed by one company
and again you definitely don't want a company that is strong in one
market to be able to just take this market as their as their own. I
just think we want to make sure that the internet stays open and
free and that is something we will work very actively for.
Are you worried about endless CCTV cameras dotting Britain, the
massive government databases and the huge amounts of information
companies now hold on you? Do you think that Orwell's 1984 should
be re-classified as non-fiction?
Then perhaps you should close your ears because it looks as
though we are about to be even more closely monitored than ever
before. Technology research firm Juniper says that there is about
to be an explosion in mobile phone tracking.
Juniper has produced a report on the market for tracking
technology, which can use satellites or even just mobile phone
masts to tell where you are whenever the phone is turned on. It
says the industry is about to take off, and that it will earn 3.3
billion Euros by 2012. Report author Bruce Gibson said that the
public sector is the current big market.
Gibson: There is a lot of legislation in
the EU concerning duty of care for employees and lone or vulnerable
workers. A lot of tracking applications are being put in now by
local authorities but also large commercial concerns as a form of
assurance both for themselves and their employees in terms of
personal safety.
Naturally, a user's permission is needed before they can be
tracked, but amidst fears of lost government data, web use tracking
and the steady build up of personal information held in the private
and public sectors, it is perhaps surprising that anyone is willing
to be tracked. But Gibson said early resistance has broken
down.
Gibson: It does freak out a number of
individuals but when you're looking within a corporate environment
for example people are beginning to understand that if they are
going to be doing a particular type of job they want particular
safeguards that go with it. In actual fact a lot of people in the
transport industry are finding that they are getting benefits from
it because they are linking tracking with navigation for example.
It's improving their personal life as well as improving business
efficiency for their employers.
The personal tracking sphere is tagged for slower growth, and
Gibson said that the technology is used there in a slightly
different way.
Gibson: In the personal space if you're
talking of people tracking, children tracking, granny tracking,
whatever, very often operated through geofencing. So there will be
an alert when they go outside a particular area. Obviously they're
not being tracked all the time. What the parent is concerned about
is that the child doesn't go outside a safe area, they're not
necessarily concerned about tracking them within a playground or
something like that.
Magee: That's all we have time for this week,
thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Don't forget to tune in next week but for now goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
