Bonum Certa Men Certa

Cablegate: European Commission Worried About Microsoft's Browser Ballot Screen Being Inappropriate

Cablegate



Summary: A look at the real views of regulators, to whom Microsoft was 'selling' the idea of false "choice" (where Internet Explorer is already installed by default)

THE FOLLOWING Cablegate cable draws attention to several disparate issues, some of which are unrelated to technology. But the part which we found most revealing (€¶14) says that "Microsoft's proposed "ballot-screen" remedy to the Commission's case against Microsoft's bundling of Internet Explorer with Windows concluded last Friday (Nov. 13)" and that it "showed some small concerns over screen design, layout, the number of security warnings Windows showed users installing new browsers, and one or two other small issues."

We actually wrote about those same issues at the time, but we did not know that the European Commission too was sceptical [1, 2, 3, 4, 5, 6, 7, 8, 9]. Inside those posts are some points and arguments from around that time. These mostly got mentioned by Microsoft rivals.










VZCZCXRO7280 PP RUEHIK DE RUEHBS #1591/01 3291353 ZNR UUUUU ZZH P 251353Z NOV 09 ZDK ZUI RUEHSD 0004W 3350809 SVC FM USEU BRUSSELS TO RUEHC/SECSTATE WASHDC PRIORITY RUCPDOC/USDOC WASHDC PRIORITY RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY RUEATRS/DEPT OF TREASURY WASHDC PRIORITY RHEHNSC/NSC WASHDC PRIORITY INFO RUCNMEM/EU MEMBER STATES COLLECTIVE RUCNMEU/EU INTEREST COLLECTIVE

UNCLAS SECTION 01 OF 03 BRUSSELS 001591

SENSITIVE SIPDIS

STATE FOR EUR/ERA, EEB/TPP/MTA, EEB/OIA DOJ FOR CALDWELL HARROP DOC FOR DAVID DEFALCO

PLEASE PASS TO USTR DAVID WEINER AND FTC J. PARISI

NOT FOR INTERNET DISTRIBUTION

E.O. 12958: N/A TAGS: ECIN [Economic Integration and Cooperation], ECON [Economic Conditions], EINT [Economic and Commercial Internet], ECPS [Communications and Postal Systems], EFIN [Financial and Monetary Affairs], ETRD [Foreign Trade], EUN [European Union] SUBJECT: KROES CABINET CHEF ON ORACLE-SUN, BANKING REVIEWS, NEXT COMMISSION DYNAMICS

BRUSSELS 00001591 001.9 OF 003

SUMMARY -------

€¶1. (SBU) Anthony Whelan, chef du cabinet to Competition Commissioner Neelie Kroes, told USEU November 20 that Kroes and DG COMP are carefully reviewing the complex arguments involved in the Oracle-Sun merger, and the potential concerns over Oracle's acquisition of Sun's MySQL open source database. Key issues Kroes is reviewing include whether: MySQL's open source nature protects it from competition concerns (Kroes is skeptical); DG COMP concerns that Oracle wouldn't support developing MySQL into a stronger competitor to other existing lower-end databases; and interest in Oracle arguments that MySQL technically cannot be scaled up far enough to compete with some of these databases. He noted that Kroes and DG COMP officials' minds "are more open" to Oracle/Sun arguments than they would be in many SO cases, given the new open source issues involved.

€¶2. (SBU) Whelan said Kroes regretted missing the recent TEC meeting and continues to value her close relationships with U.S. competition officials. He said she has spent a tremendous amount of time on state aid reviews of the many financial sector bailout packages member states have enacted during the financial crisis. He said the Commissioner and DG COMP have no master plan for the state aid reviews, and acknowledged the importance of looking at the cumulative impacts of required actions on the banking sector. Whelan noted the increasing possibility that Kroes will be reappointed to serve in the next Commission, mentioning rumors she could get the trade portfolio. END SUMMARY.

TEC AND COMPETITION CONSULTATIONS ---------------------------------

€¶3. (SBU) EconMin opened by mentioning the success of the recent Transatlantic Economic Council (TEC) meeting and noting it was unfortunate that Commissioner Kroes had been unable to participate. Whelan said Kroes had been looking forward to participating in the TEC and explaining Commission reviews of financial sector support packages, but at the last minute had needed to stay in Brussels to address some of those very reviews.

€¶4. (SBU) EconMin noted the long history of cooperation in competition policy issues, and expressed disappointment that the the planned U.S.- EU competition consultations had to be postponed. He noted USEU's commitment to continuing to facilitate close relations between our respective competition authorities. Whelan said Kroes and DG Comp feel the same, noting Kroes' subsequent meeting in India with FTC Commissioner Kovacic, as well as Deputy Director for Antitrust Nadia Calvino's recent meeting in DC with DOJ Deputy AAG Molly Boast.

FINANCIAL SECTOR STATE AID REVIEWS ----------------------------------

€¶5. (SBU) Whelan explained that Kroes has spent a tremendous amount of time on state aid reviews of the many financial sector bailout packages member states have enacted during the financial crisis. He acknowledged that the results may lead to some transatlantic disinvestments and pullbacks. The Commissioner and DG COMP have no master plan for the state aid reviews, but Whelan agreed the Commission should probably look at the cumulative impacts of required actions (such as divestments by ING and

BRUSSELS 00001591 002.10 OF 003

RBS) on the EU and transatlantic banking sector. He noted the Commission's declared intention when adopting its restructuring guidelines that measures should not undermine the EU internal market. He pointed out that the Commissioner does not insist on divestment of assets in particular regions (ex. E. Europe) and in fact wants to ensure member states do not "close" EU financial markets.

€¶6. (SBU) Whelan explained that the state aid reviews involve twice weekly joint meetings by DG COMP, DG MARKT, DG ECFIN and the Commission legal services to examine member state packages. He said when the crisis hit last year DG COMP quickly received more resources to conduct the reviews, noting they hired former bankers and other experts to assist with the reviews. He added that many of the guarantee and recapitalization schemes have already been reexamined at least once, to ensure they are working and are not market-distorting.

ORACLE-SUN MERGER -----------------

€¶7. (SBU) After discussing state aids and Commission politics (below), Whelan turned to the Commission's investigation of the planned $7.4 billion Oracle-Sun merger. He said Oracle had requested an 8-day extension to prepare their written and possible oral responses to the Commission's Statement of Objections (SO). This is a positive sign, he said, that they are taking the Commission process seriously. He said that some on the DG COMP case team felt Oracle had been "lazy" in its responses to requests for information, but agreed Oracle may not have expected the database concerns, since the early focus had been on potential JAVA issues. He said concerns about Sun's MySQL open source database were brought to DG COMP by questionnaire responses from other parties over the summer.

€¶8. (SBU) Whelan acknowledged that Sun and Oracle are concerned that the issuance of an SO is a serious step, since very few mergers with SOs have been cleared unconditionally, but added that each case is totally different and that Oracle-Sun presents new issues for DG COMP in involving open source software models so extensively.

€¶9. (SBU) Whelan understands Oracle's existing databases and MySQL have different architecture and target different markets. He noted that Kroes and DG COMP know the argument that open source software is by definition "pro-competitive," since the theory is that everyone has access to it and can contribute to improving open source programs, but said the Commission is examining subtle and complex counterarguments to this. He said that in the dynamic, real marketplace in Europe, this open source argument needs to be examined.

€¶10. (SBU) Key questions DG COMP is considering in this case, Whelan said, include: 1) whether the "global public license" open source nature of MySQL somehow precludes potential competitors from using it to develop commercial products that could eventually compete with OracleQs databases; 2) in this connection, Oracle's assertions that technically MySQL cannot be scaled up to compete on Oracle's high end; and 3) whether Oracle has the incentive to support development of MySQL into a stronger program.

€¶11. (SBU) These concerns, Whelan said, are to some extent hypothetical, but then added that the Commission's merger control powers differ from those

BRUSSELS 00001591 003.7 OF 003

held by DOJ and FTC in the U.S. In the U.S., he said, agencies can come back to a merger after it occurs, see the results, and take structural action if necessary. The Commission doesn't have that possibility, he continued. The Commission faces an incredibly high bar for subsequent action, he said (if it can show an Article 82 violation that can't be fixed by a behavioral remedy); hence the need for a thorough review now.

€¶12. (SBU) Whelan continued musing about whether the specific type of open source license MySQL has works well in practice; he noted that the most successful open source products often have a commercial sponsor, (ex. Red Hat), which allows for dual licensing. The Commission's concern is not so much that MySQL would be re-privatized, but rather that Oracle might not provide strong support for the program. The Commission does recognize, Whelan said, that strong support for MySQL from Oracle could make the database a stronger competitor to Microsoft and other lower-end database providers.

€¶13. (SBU) Whelan stressed that, given the newness of many of the open source issue involved in the case, "our minds are more open" than they tend to be in standard cases where an SO has been issued. He said Oracle has the opportunity to demonstrate answers to many of the questions raised by the Commission (such as whether MySQL can technically be upgraded to be a major competitor to Oracle's existing databases.)

MICROSOFT UPDATE ----------------

€¶14. (SBU) Whelan said that the 4-week market test of Microsoft's proposed "ballot-screen" remedy to the Commission's case against Microsoft's bundling of Internet Explorer with Windows concluded last Friday (Nov. 13). He said the ballot screen results (under which MS will offer a screen with alternate internet browsers that Windows users can download) showed some small concerns over screen design, layout, the number of security warnings Windows showed users installing new browsers, and one or two other small issues. Whelan said "we need to explore these with Microsoft" but implied that they were not major issues, and reinforced the impression that Commissioner Kroes sees this case as nearly resolved.

KROES IN THE NEXT COMMISSION ----------------------------

€¶15. (SBU) Whelan said that while three weeks ago there seemed to be zero possibility of Kroes being reappointed to the Commission, the Dutch political dynamic has since changed. Kroes is very media- savvy in the Netherlands, Whelan noted, and the Dutch media have begun a campaign to renominate here. The government is "in the doldrums," he said, and there is public resistance to sending one of Prime Minister Balkenede's "party hacks" to the Commission. Kroes is seen as tough on banks, which is appealing, he added, and PM Balkenende is now under some pressure to support Kroes. Whelan concluded that her chance of reappointment has grown. (Note: Kroes was subsequently reappointed by the Dutch government on November 24. End note). Whelan acknowledged the rumor that Kroes would get the trade portfolio but said he had no corroboration of this at all.







Eventually Kores stayed in the Commission (not in the competition part of) and Microsoft now engages in new anti-competitive abuses, mostly using patents. Microsoft cannot help being brutal and cheating while nobody is watching and threatening with fines.

Recent Techrights' Posts

Using SLAPPs to Cover Up Sexual Abuse and Strangulation
The exact same legal team of the Serial Strangler from Microsoft and Garrett already has a history fighting against "metoo"
Adding the Voice of Writers to UK SLAPP Reform
The journey to repair antiquated (monarchy era) laws will likely be long
 
Gemini Links 12/07/2025: Melodic Musings and Small Web July
Links for the day
Links 12/07/2025: Jail in China for Homoerotica, South Korea Discriminates Against Old Workers
Links for the day
If Only Everything Was Rewritten in Rust, We'd Have No More Security Issues?
Nope.
Links 12/07/2025: Birdwatching and Fake/Misleading Wall Street 'Valuation' Figures
Links for the day
Gemini Links 12/07/2025: How to Avoid Writing, Apps for Android
Links for the day
EPO Staff Committee on Harassment in the Workplace
slides
EPO Takes More Money From Staff for Speculation (Pensions), Actuarial Study Explains the Impact
"The key change in this year’s Actuarial Study, due to cascading the new “risk appetite” from the financial study, is a significant increase of the total pension contribution rate of 5.7 percentage points, up to a total of 37.8%. This is driven by an unprecedented decrease in the discount rate of 105 bps down to 2.2%."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 11, 2025
IRC logs for Friday, July 11, 2025
Microsoft - Like IBM - Does the "Relocation" Tricks (Start Over Elsewhere, Then Get Sacked by Microsoft)
It is a "low blow" or a "dick move"
After the Free Software Foundation's Campaign to Raise Money Let's See Campaigns to Finish Off Microsoft (Vista 11, GitHub etc.)
Microsoft is in effect collapsing
Your Publications Have No Major Impact Unless or Until You "Get Some Heat"
we're on the right track
Slopwatch: A Cause for Hope, the Hype is Dying
For about a month we showed that becoming a slopfarm - for several weeks - resulted in utter failure and ruin for BetaNews
Links 11/07/2025: Censorship Worsening, 3D Printing Success Stories, UK and France Unite Around Nukes
Links for the day
Gemini Links 11/07/2025: Zorin OS and Scriptonite Updates
Links for the day
Links 11/07/2025: Hardware, Russia, and China
Links for the day
Links 11/07/2025: Intel Collapsing and Microsoft Resorts to Bribery to Push Slop Via Obligatory Education
Links for the day
The EFF Sided With the Team That Strangles Women and Tells Women to Kill Themselves
They say that apathy and inaction are a form of a "stance"
"Nat [Friedman] and [the Serial Strangler From Microsoft] Were Always Exceptionally Close," Says Former Housemate and Colleague
Now Alex (hiding behind another name when that suits him) not only attacks women but also people who merely report what he did to women
Exemplary List of Things That Are Not Artificial Intelligence or Even Intelligence
The "age of AI" or "era of AI" or "AI revolution" mostly boils down to rebranding, just like "the cloud"
New Letter From the European Patent Office Explains How the Office Plots to Grant Many Illegal Patents, a Self-Fulfilling Prophecy of 'Growth'
Open letter to Mr Rowan (VP1) and Mr Aledo Lopez (COO)
Abuse of Process
5RB is employing people who help violent men
What Microsoft's Nat Friedman and Microsoft Lunduke Have in Common
"Get in da car; No time to explain, loser"
Microsoft and IBM Don't Have Much of a Future (They Mostly Pretend at This Point)
IBM and Microsoft are in some ways alike but in many ways different
It's Not Just Twitter (or X.com) That's Dying, Microsoft's Equivalent is Dying Also
Unable to find a business model
GitHub Copilot Can Cause the Bankruptcy of GitHub to Come Sooner and GitHub to be Shut Down Just Like Skype
Some publicly available information suggests that even for each paid subscriber for plagiarism (LLM 'coding') GitHub Copilot still loses more money than it makes
Wayland is Bad for the Planet
If you use Wayland, it'll take you longer to accomplish tasks and you will consume more energy (or battery life)
Legitimising Those Who Sabotage You
Microsoft is a very malicious company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 10, 2025
IRC logs for Thursday, July 10, 2025
On Microsoft Layoffs
we might be looking at about 60,000 Microsoft layoffs since 2023
EPO Management Already Breaks Its Own Promise (Lie) on "Bringing Teams Together"
This gut-punching move happened just 2 days ago
Gemini Links 11/07/2025: Occupation of 2025 and "Old Man Yells At Soundcloud"
Links for the day
Our Lawsuits Against the 'Cancel Mob' (Ringleaders) Helped Reduce Anti-Free Software Online Abuse
That's not to say that lawsuits are the best way to handle terrible people. But that can help.
Tomorrow is the Last Day of the Fund-Raising Campaign of the Free Software Foundation (FSF)
They will probably extend the date, as usual
Fixing Patents in Europe, Little by Little (by Transparency and Reporting of Suppressed Facts)
Tomorrow and throughout the weekend we shall focus some more on the EPO
The Two Lies Microsoft is Telling in "the News" This Week (to Distract From Layoffs and Decreased Interest in Slop/Chaff)
Microsoft is run by liars and frauds who SLAPP critics
Tux Machines Already Destroyed SLAPPs
Attacks on the mere publication of GNU/Linux news won't be tolerated
PCLinuxOS is Available for Download Again
PCLinuxOS is important to us also because its founder, back then the partner of Susan, helped create Tux Machines more than 21 years ago
Links 10/07/2025: Microsoft E-mail 'Services' Collapse Again, "Yet Another Strava Privacy Leak"
Links for the day
Gemini Links 10/07/2025: Automating Git Repo Updates and Small Web 'Zine'
Links for the day
GNU/Linux Leftovers
mostly Linux stuff
Audiocasts/Shows: Going Linux, FLOSS Weekly, and RHEL Clones
3 new picks
We Are Already Fighting - With Considerable Success - SLAPPs in the UK
we intend to tell the full story
Bullies With Pens and Papers (or Apple Macs With Templates)
Not all barristers are evil, but there are perhaps "rotten apples"
Slopwatch: webpronews.com, linuxsecurity.com, linuxjournal.com
a pile of trash disguised as 'articles'
Links 10/07/2025: Linda Yaccarino Divorces MElonazi Site, Wildfires Hit Syria
Links for the day
The History and the Policy of the EPO's Stance on Breastfeeding (Corporate Monopolies Versus Babies' Health)
"The Case for Introducing a Breastfeeding Policy at the EPO"
Gemini Links 10/07/2025: Inventing Chords and "Nightmare Boss"
Links for the day
Igor Ljubuncic Once Again Shows That for Technical Reasons Wayland Still Sucks, Performs Considerably Worse Than What Existed for Decades
That is aside from compatibility factors and other crucial factors
Links 10/07/2025: "Apple Vs The Law" and Twitter Became Full Nazi Bar
Links for the day
Unable to Find Anyone to Work as Their Media Lawyer, Brett Wilson LLP Will Continue Losing Female Staff
What sort of sick person would wish to join Brett Wilson LLP to carry this baton?
Microsoft-Sponsored Propaganda Site Has Removed False 'Hit Piece' About Dr. Stallman (With Fake and Misrepresented Imagery) But Only After 4 Years
So they only removed that page some time around 2025, i.e. about 4 years after it had been published
Always Check Your Inputs
Garbage in, garbage out. Or wrong assumptions, wrong corollary.
Dan Neidle Said That Tax Evasion Facilitator Mr Zahawi (Working to Silence Bloggers Through Brett Wilson LLP) Targeted Not Only Him (But The Others Kept Quiet)
"Mr Neidle said after repelling Mr Zahawi he was contacted by bloggers and tweeters who had received similar threats. They deleted their work “and in most cases never commented publicly on anything again”."
SLAPP Funding Transparency Urgently Needed in the UK and Elsewhere (in Practice, Not Just in Theory)
Writing about crime - including Microsoft crime - is not a crime
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 09, 2025
IRC logs for Wednesday, July 09, 2025
Elodie Bergot Still Doing Illegal Things at the EPO, Based on the Local Staff Committee Munich
They keep taking away from the staff while compelling the staff to do illegal things