"In one piece of mail people were suggesting that Office had to work equally well with all browsers and that we shouldn’t force Office users to use our browser. This Is wrong and I wanted to correct this.

"Another suggestion In this mail was that we can’t make our own unilateral extensions to HTML I was going to say this was wrong and correct this also."

--Bill Gates [PDF]

Summary: ECIS joins the Web browser case against Microsoft, whose people are already busy subverting JavaScript

Restoring Web Browser Competition

AT the bottom of this post is an excerpt from the Comes petition, which sheds light on what Microsoft did to Netscape. It appears very clearly in black on white and one day we shall deal with each exhibit in turn.

Today's big story -- at least in certain circles -- is ECIS taking on Microsoft. Since The Register is filled with Microsoft puppets these days (e.g. Kelly Fiveash and Gavin Clarke), they insult the ECIS's reputation and characterise it only as an IBM front. There is this quote however:

“This is an important case to ensure that browsers can compete on the [sic] merits and that consumers have a true choice in the software they use to access the World Wide Web," said ECIS spokesman Thomas Vinje.

Thomas Vinje is involved in a variety of other cases that we wrote about before. Here is the formal statement from ECIS [PDF].

Support Grows for EU Browser Case against Microsoft

Brussels – 15 April 2009 – The European Commission recognised ECIS as an interested third party in support of the Commission’s preliminary findings (Statement of Objections) that Microsoft is violating EU anti-trust law by tying its Internet Explorer (IE) web browser to its dominant Windows operating system present on over 90% of all personal computers.

To an extent, this case is about the past, but it's also to do with Microsoft's future bundling, which is already anti-competitive.

Microsoft Still Breaking JavaScript

Microsoft has already proceeded to new fights that we wrote about before. It's about JavaScript -- a Web 'middleware' enabler -- which is a great threat to Microsoft and a powerful feature to competitors like Google. Heise wrote about the latest draft.

The publication of the final draft JavaScript standard, ECMA-262, ECMAScript fifth edition, marks the final stage of revision for the ECMAScript standard, which was last updated in 1999. The redevelopment of the standard has been an acrimonious affair.

The Register has a lot more details about what Microsoft is doing.

The debate over ES4 turned at times acrimonious, with Microsoft IE architect Chris Wilson saying that it introduced too many changes and Mozilla architect Brendan Eich accusing Wilson of spreading "falsehoods" about the proposed standard.

If the European Commission is unable to punish Microsoft for crimes it committed (read the details below), then Microsoft will be tempted to redo the same thing, knowing that it can carry on without punishment.

It's all about the economics of crime (risk, reward, and punishment). ⬆

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Appendix: Netscape Portions from the Comes vs. Microsoft Petition

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Microsoft’s Predatory Response to Netscape’s Navigator

159. Microsoft III addressed actions taken by Microsoft to maintain the applications barrier to entry--and thus protect its monopoly power in the operating systems market---once Microsoft had successfully eliminated threats from DR-DOS and OS/2. The course of Microsoft’s misconduct directed at Netscape’s Navigator web browser is the subject of numerous conclusively established factual findings and legal conclusions from the government action, as detailed in this section.

160. Netscape Navigator possessed middleware attributes that gave it the potential to diminish Microsoft’s applications barrier to entry. First, it was a complement to (not a substitute for) Windows, and therefore could gain widespread use. Second, it could serve as a platform for other software, particularly network-centric applications that work in association with Web pages. Third, Navigator had been ported to more than fifteen different operating systems. If a developer wrote an application that relied on the APIs exposed by Navigator, that application would, without any porting of its own, run on many different operating systems.

161. As was established in Microsoft III, Navigator began to enjoy tremendous public acceptance shortly after its release in December 1994. Microsoft soon thereafter recognized the damage Navigator could cause its operating system monopoly. In a May 1995 memorandum, Bill Gates, the Chairman and CEO of Microsoft, described Netscape as a "new competitor ’born’ on the Internet." He warned that Netscape was "pursuing a multi-platform strategy where they move the key API into the client to commoditize the underlying operating system." In other words, Netscape’s browsers threatened to reduce or eliminate the key barrier to entry that protected Microsoft’s monopoly power in flat operating systems software market.

162. As noted above, the applications barrier to entry, consisting of the large number of software applications that will run On the Windows operating system but not on other operating systems, has precluded potential developers of alternative operating systems from effectively competing with Windows on the desktop. If, however, applications could be written to run on multiple operating systems, then competition in the market for Intel-compatible PC operating systems could be reinstated. Microsoft recognized that browser technology, in combination with Sun Microsystems’ Java technologies, held out exactly that prospect, a threat which was altogether ominous for Microsoft when Mr. Gates wrote his "Internet Tidal Wave" memorandum in May 1995.

163. Java was designed to permit applications written in its language to be run on multiple operating systems for Intel-compatible PCs, including but not limited to Windows. Given that facility, Java-based applications are not restricted to Windows as their only operating system, as was previously the case with other applications. That daunting restriction has constituted the very foundation of the applications barrier to entry into the market for operating systems for Intel-compatible PCs that Microsoft created and continues to enjoy. The distribution of Java through Internet browsers that compete with Microsoft’s Internet Explorer therefore threatened to eliminate the applications barrier to entry protecting Microsoft’s monopoly of operating systems for Intel-compatible PCs. It correspondingly threatened to obliterate Microsoft’s power to license its Windows operating systems for Intel-compatible PCs at monopoly prices, without regard to competition, in excess of what Microsoft would be able to charge in a competitive market.

164. At the time Microsoft began its anti-competition campaign against Netscape, non-Microsoft Interact browsers were the most significant means of distributing Java technology to end users. Microsoft recognized that the widespread use of browsers other than its own Internet Explorer threatened to increase the distribution and use of Java, and in so doing threatened Microsoft's operating system monopoly by weakening the applications barrier to entry. Microsoft therefore determined aggressively to use its Internet Explorer to counter the threat to Microsoft’s operating system monopoly presented by Java. A presentation to Microsoft Chairman Bill Gates on January 5, 1997, discussing how to respond to the Java threat, emphasized "Increase IE share" as a key Microsoft strategy.

165. Microsoft separately recognized that Netscape’s Navigator browser was itself a "platform" to which many applications were being written. Microsoft realized that if Navigator thrived, more and more applications would be written using Navigator as a platform. Because Navigator could be run on various PC operating systems (including numerous non-Microsoft operating systems), the success of this alternative platform also threatened to reduce or eliminate the applications barrier to entry which protected Microsoft’s operating system monopoly. Navigator--alone and in conjunction width Java---also threatened Microsoft’s monopolies in word processing and spreadsheet applications software.

166. To respond to the competitive threat to Microsoft’s operating system monopoly posed by Netscape’s Navigator browser, both as a platform and as a vehicle for distributing Java, Microsoft determined to embark on an extensive and aggressive campaign to market and distribute Microsoft’s Internet Explorer browser and to impede the distribution of Navigator. Microsoft described its campaign as a "jihad" to win the "browser war." Microsoft embarked on that "jihad" because winning the "browser war" was essential to its ability to preserve the applications barrier to entry and to thereby preserve Microsoft's power to license its Windows operating systems at monopoly prices. Itwas also necessary to preserve Microsoft’s ability to license its Word and Excel applications at, supra-competitive prices.

167. On information and belief Microsoft’s exclusionary campaign against Netscape continued even after the trial in Microsoft III.

Attempted Allocation of Browser Market

168. Microsoft first attempted to eliminate competition from Netscape by soliciting an express horizontal agreement not to compete. Microsoft executives met with Netscape executives for the purpose of inducing Netscape not to compete with Microsoft and to divide the browser market under the proposal it presented to Netscape. Microsoft would be the sole supplier of browsers for use with Windows 95 and successor operating systems, and that Netscape would be the sole supplier of browsers for operating systems other than Windows 95 and its successors. Netscape refused to participate in Microsoft’s patently unlawful market allocation scheme.

169. Microsoft refused to abandon its anticompetitive strategy. Instead, it escalated its predatory course of conduct aimed at eliminating the browser threat to the Windows operating system monopoly. Microsoft thereupon Set out to exclude Netscape and other browser rivals from access to the distribution, promotion, and resources that they needed in order to be competitive. To be successful, browser rivals such as Netscape would need to be able to offer their browser products to OEMs and PC users at a level sufficiently pervasive to facilitate the widespread distribution of Java, or to facilitate their browsers becoming an attractive programming platform in their own fight. As has been shown above, those two potential scenarios would, either alone or in combination, erode the applications barrier to entry that is the basis of Microsoft’s operating system monopoly. Microsoft was determined not to let either scenario come to pass.

170. Microsoft sank hundreds of millions of dollars into the testing and promotion of Internet Explorer, and then distributed that product without separate charge. Such actions would only make sense to a predatory monopolist. As if any further explanation of that behavior were necessary, Microsoft’s Vice President in Charge of the Platforms Group told industry executives: "We are going to cut off [Netscape’s] air supply. Everything they’re selling, we’re going to give away for free." And Microsoft’s Chairman Bill Gates boasted in June 1996: "Our business model works even if all [of Microsoft’s] Internet software is free .... We are still selling operating systems. What does Netscape’s business model look like? Not very good."

171. In addition to free distribution of Internet Explorer, Microsoft did whatever it took to make sure significant market participants distributed and used Internet Explorer instead of Netscape’s Navigator, including paying some customers to take IE and using its Windows monopoly power to induce others to do so. Mr. Gates was blunt in seeking the support of Intuit, a significant application software developer, as he reported in a July 1996 Microsoft e-mail: I was quite frank with him [Scott Cook, Chairman of Intuit] that if he had a favor we could do for him that would cost Us something like $1M to do that in return for switching browsers in the next few months I would be open to doing that.

172. All told, Microsoft’s campaign against Netscape ultimately involved a range of anti-competitive acts, including, inter alia:

a. After Netscape refused Microsoft’s offer to divide the Web browsing market, Microsoft withheld crucial technical information from Netscape. At a meeting in June 1995, Netscape representatives requested technical information from Microsoft. A Microsoft representative indicated that Netscape’s response to Microsoft’s offer of a "special relationship" would determine whether Netscape received this information immediately or in three months. Subsequently, despite Netscape’s repeated requests for this information, Microsoft withheld it until late October, more than three months later. The delay forced Netscape to postpone the release of its Windows 95 browser, causing it to miss most of the holiday selling season;

b. Microsoft withheld a scripting tool that Netscape needed to make its browser compatible with certain ISPs. In mid-August 1995, a Microsoft representative informed Netscape that Microsoft was linking the grant of a license for the scripting tool to the resolution of all open issues. Netscape never received the license and, as a result, was unable for a time to do business with certain ISPs;

c. Microsoft conditioned the placement of an Internet Service Provider on the "Internet Connection Wizard" screens or in the Online Services folder in Windows 95 on the ISP’s agreement to deny most or all of its subscribers a choice of Internet browser. At the time, approximately one-third of Interact browser users obtained their browsers from their service provider, so Microsoft’s exclusionary agreements with these firms had a substantial foreclosure effect on Netscape Navigator and other browsers;

d. Microsoft entered into exclusionary agreements with Internet Content Providers such as Disney, Hollywood Online, and CBS Sportsline, which provide news, entertainment, and other information from sites on the Web. In order to achieve priority placement on the Windows desktop screen after installation of Internet Explorer, Microsoft required ICPs to agree: (i) not to compensate manufacturers of "other browsers" (defined as either of the two top non-Microsoft browsers) by distributing its browser or by payments to the other browser for distributing, marketing, or promoting the ICP content; (ii) not to promote any other browser; (iii) not to allow any other browser to promote the ICP channel content; and (iv) to design the ICP Web sites using Microsoft-specific programming extensions so that the sites looked better with Internet Explorer than with a competing browser;

e. Microsoft imposed license restrictions that prevented OEMs from altering the Windows 95 boot-up sequence. These restrictions increased Microsoft’s ability to require preferential treatment for Internet Explorer from ISPs and ICPs in return for access to the Windows desktop. These restrictions also limited an OEM’s ability to substitute or feature a non-Microsoft browser or other application;

f. Microsoft bundled Internet Explorer with Windows 95 in licensing agreements with OEMs, in order to foreclose choice by OEMs;

g. Microsoft tied, both contractually and technically, Internet Explorer to Windows 98 and subsequent versions of Windows.

173. The result of Microsoft’s campaign against Netscape Navigator was a dramatic reversal in market share. Navigator’s share fell from above 80 percent in January 1996 to 55 percent in November 1997, and Internet Explorer’s share rose from five percent to 36 percent over the same period. Internet Explorer’s share by the latter part of 1998 had reached approximately 50 percent. IE’s share has been steadily rising as Windows 95 users have converted to Windows 98 and to subsequent versions of the operating system. Recent estimates place Internet Explorer’s share at more than 90 percent of the market.

Microsoft’s Licenses Issued to Original Equipment Manufacturers

174. In its continuing "jihad" to win the "browser war" Microsoft has gone to the extreme of controlling the content of the computer screen that the PC end user sees, To that end, Microsoft abused its Windows operating system monopoly by requiring OEMs to agree, as a condition of acquiring a license to the Windows operating system, to adopt the uniform "boot-up" sequence and "desktop" screen that Microsoft has dictated. The "boot" sequence determines the screens that every user sees upon turning on a Windows-based PC. Microsoft’s exclusionary restrictions also prohibited, among other things, any changes by an OEM that would remove from the PC any part of Microsoft’s Internet Explorer software. OEMs were also prohibited by Microsoft from adding to the PC a competing browser in any more prominent or visible way than the way Microsoft required Internet Explorer to be presented.

175. Beginning in or about August 1996, Microsoft prohibited sellers of personal computers from altering the Windows 95 boot sequence. Specifically, Microsoft’s license agreements prohibited OEMs from:

a. Modifying or obscuring the sequence or appearance of any screens displayed by Windows from the time the user first begins the boot-up process with a new personal computer until the "Welcome to Windows" screens have run and the Windows desktop screen first appears;

b. Modifying or obscuring the sequence or appearance of any screens displayed by Windows on all subsequent boot-ups unless the purchaser initiates some action to change the sequence;

c. Displaying any content, including visual displays, sound, welcome or tutorial screens, until after the Windows desktop screen first appears;

d. Modifying or obscuring the appearance of the Windows desktop screen, beyond a narrowly limited range of permitted changes; or

e. Adding a screen that would automatically appear after the initial boot-up sequence or in place of the Windows desktop screen.

176. These anti-competitive restrictions preserved the advantageous desktop position that Microsoft secured for Internet Explorer and other Microsoft or Microsoft-designated software. The restrictions also foreclosed competing Interact browsers from securing preferential placement on PC desktops, and foreclosed OEMs from choosing among competing browsers on the merits. The effect of these restrictions was significantly to restrict the access of competing browsers to the important OEM channel and thereby fortify Microsoft's personal computer operating systems monopoly.

177. As described above, several OEMs (including MicronPC, Hewlett-Packard, and Gateway) requested that Microsoft allow them to provide new personal computer purchasers with an alternative user interface, boot-up sequence, or initial or default screens. Microsoft refused these requests.

178. Microsoft recognized that its control over the desktop screen gave Microsoft a strategic advantage in the provision of software, advertising and promotion. Microsoft intended by its anti-competitive restrictions to consolidate that power.

179. As the D.C. Circuit recognized in Microsoft III, these exclusionary restrictions (with the minor exception of the prohibition against launching user interfaces that "automatically prevent[ed] the Windows desktop from ever being seen") were not reasonably necessary to further any legitimate, pro-competitive purpose and furthermore impaired competition in an unnecessarily restrictive way.

180. Microsoft’s exclusionary contracts thereby foreclosed Netscape from access to customers, and further impeded their ability to distribute Java and other software capable of eroding Microsoft’s operating systems monopoly. Such exclusionary conduct also suppressed the development of newer secure browsers.

Contractual and Technological Bundling of Internet Explorer with Windows

181. Internet Explorer is recognized by both Microsoft and the industry as a distinct product separate and apart from Windows, For example:

a. Microsoft has sold Internet Explorer separately at retail, distributed it separately through the Internet, and paid for it to be distributed separately;

b. Microsoft has distributed Internet Explorer as a separate product through Internet Service Providers and other channels and has conditioned the access of numerous companies (e.g., Internet Content Providers and Internet Service Providers) to Windows facilities on such companies’ distribution of Internet Explorer as a separate product;

c. Microsoft and the industry have separately tracked browser market share and operating system software market share;

d. Microsoft has bundled stand-alone versions of Internet Explorer with other application programs (e.g., Word, Works, Enema);

e. Microsoft has promoted, and has enlisted others to promote, the distribution and use of Interact Explorer as a separate product;

f. Internet Service Providers consider Internet Explorer to be a separate product from Windows and, recognizing the demand for a browser separate from the operating system software, Microsoft has deliberately marketed it as such to Internet Service Providers;

g. Interact browsers and operating system software perform different functions; and

h. Microsoft has marketed--and continues to market--Interact Explorer for non-Windows operating system software, including operating system software produced by Apple. Indeed, Microsoft devoted substantial effort in developing these versions of its Interact Explorer in order to foreclose opportunities for non-Microsoft browsers to establish themselves).

182. There is demand for Internet browsers that is separate from the demand for Microsoft’s operating system software. For example:

a. Many personal computer Users (who, of course, require an operating system) do not need or want a browser;

b. For many customers, the forced inclusion of a browser with the operating system software is a significant negative---including corporate customers who do not want their employees connected to the Internet and customers that would prefer a different browser. Microsoft has acknowledged that some sellers of personal computers and personal computer users want to be able to delete Interact Explorer from Windows and previously provided the ability, through the "Add/Remove" utility, for them to do so; and

c. Other personal computer, customers want an up-to-date Windows operating system together with non-Microsoft browsers.

183. Microsoft recognized that it could not compete with Netscape on the merits. As Microsoft’s Christian Wilfeuer wrote in February, 1997, Microsoft had concluded that it would "be very hard to increase browser share on the merits of [Internet Explorer] alone. It will be more important to leverage the [operating system] asset to make people use [Interact Explorer] instead of Navigator." To leverage its operating system, Microsoft tied the implementation of Windows 98 (and subsequent versions of Windows) with Internet Explorer, so that IE could not be simply uninstalled. Moreover, even if Netscape Navigator is chosen as a default browser, Windows 98 (and subsequent versions of Windows) is written to override the user’s choice in certain circumstances. As Brad Chase of Microsoft wrote to his superiors near the end of 1995, "We will bind the shell to the Interact Explorer, so that running any other browser is a jolting experience."

184. Even before it bound Internet Explorer to Windows with "technological shackles," though, Microsoft began tying Internet Explorer to Windows with "contractual shackles." Microsoft unlawfully required OEMs, as a condition of obtaining licenses for the Windows 95 operating system, to agree to license and pre-install Interact Explorer on every Intel-compatible PC that they shipped with Windows 95 pre-installed. Windows’ monopoly position made it a commercial necessity for OEMs to pre-install Windows 95 on virtually all of the PCs they sold. Microsoft thereby unlawfully leveraged its operating system monopoly to require PC manufacturers to license and distribute Interact Explorer on every PC those OEMs shipped with Windows, with the purpose and effect of foreclosing Netscape’s Web browser, which (as described above) threatened to erode the applications barrier to entry sustaining Microsoft’s operating systems monopoly.

185. Microsoft bundled its Internet Explorer software with Windows 95 not because Microsoft believed the market wanted only a bundled product but rather to foreclose choice by personal computer sellers and ultimately their customers.

186. Microsoft recognized that such restrictions were necessary to build Interact Explorer’s market share and to foreclose the important OEM channel to Navigator. By foreclosing personal computer choice, Microsoft substantially foreclosed Netscape from a significant channel of distribution, and as a consequence suppressed competition with the Windows operating system software monopoly.

187. These exclusionary restrictions were not reasonably necessary to further any legitimate pro-competitive purpose and furthermore the restrictions impaired competition in an unnecessarily restrictive way. Microsoft has distributed--and continues to distribute Internet Explorer separately from its Windows operating system software, and it is efficient for it to do so. Microsoft could also efficiently distribute or permit the distribution of Windows without Microsoft’s Internet browser software.

188. Recognizing that its contractual restrictions on OEMs "would not be sufficient in themselves to reverse the direction of Navigator’s usage share... Microsoft set out to bind [Internet Explorer] more tightly to Windows 95 as a technical matter." Findings of Fact €¶ 160.

189. Microsoft designed Windows 98 (and subsequent versions of Windows) so that removal of Internet Explorer by OEMs or end users is operationally more difficult than it was in Windows 95. Microsoft undertook several measures to bind "Internet Explorer to Windows with.., technological shackles." Conclusions of Law at 39. These included, inter alia, excluding Internet Explorer from the Add/Remove Programs utility in Windows and commingling code relating to browsing with other code in the same files so that any attempt to delete the files containing Internet Explorer would cripple the operating system.

190. Although it is nevertheless technically feasible and practicable to remove Microsoft’s Internet Explorer browser software from Windows and to substitute other Internet browser software, OEMs were prevented from doing so by Microsoft’s contractual tie-in. Microsoft has thus continued this practice, begun with Windows 95, with the unlawful purpose and effect of foreclosing Netscape’s Web browser, thereby preserving the applications barrier to entry sustaining Microsoft’s operating systems monopoly. The net result of this unlawful activity is higher prices for Plaintiffs and members of the Classes.

Exclusionary Agreements with Internet Access Providers (ISPs)

191. Microsoft entered into anti-competitive agreements with major Internet Access Providers for the exclusive or nearly exclusive distribution of Internet Explorer.

192. Starting in early 1996, as a condition for placement of an ISP on the "Internet Connection Wizard" screens or the Online Services folder in Windows 95, Microsoft began to require Internet Access Providers to agree to deny most or all of their subscribers a choice of Internet browser.

193. Microsoft’s restrictions on the ability of OEMs to modify the boot sequence or otherwise alter the appearance of Windows enhanced Microsoft's ability to provide preferential placement on the desktop and in the boot-up sequence to various Internet Access Providers in return for those firms’ commitments to give preferential distribution and promotion to Internet Explorer and to restrict their distribution and promotion of competing browsers.

194. As a result, these restrictions further exclude competing Internet browsers from the most important channels of distribution, and are therefore other means by which Microsoft has used the virtual universality of its Windows operating system monopoly to maintain the applications barrier to entry that competing Internet browsers have threatened to erode by distributing Java and becoming platforms that could substitute for Windows.

195. In its agreements with ISPs, Microsoft leveraged its operating system monopoly by imposing the requirements that the ISPs offer Microsoft’s Interact Explorer browser primarily or exclusively as the browser they distribute; that they refrain from promoting or mentioning to their subscribers the existence, availability, or compatibility of any competing Internet browser; and that they use on their own Internet Sites Microsoft-specific programming that makes those sites look better when viewed through Internet Explorer than when viewed through competing Internet browsers; that they eliminate links on their web sites from which their subscribers could download a competing browser over the Internet; that they include Internet Explorer as the only browser they ship with their access software (i.e., the software that enables a personal computer user to subscribe to the service) most or all of the time; and that they limit the percentage of competing browsers they distribute, even in response to specific requests from customers.

196. Microsoft’s agreements with Interact Access Providers also required the IAPs to use Microsoft-specific programming extensions and tools in connection with the ISP’s own web sites. Web sites developed with these Microsoft-specific programming extensions and tools will consequently look better when they are viewed with Internet Explorer than with a non-Microsoft browser.

197. Under Microsoft’s ISP contracts, the penalty for promoting a competing browser, for distributing a competing browser more than permitted by Microsoft, or for otherwise failing to provide preferential treatment for Microsoft’s Interact browser, was deletion from the Windows desktop. Even the largest Interact Access Providers were unwilling to risk this penalty.

198. Microsoft recognized the importance to Internet Access Providers of favorable placement on Windows screens. For example, Brad Silverberg (Microsoft's former Senior Vice-President of its Applications and Internet Client Group) described such placement as "a distribution facility" for service providers that is of "tremendous value to them."

199. Approximately one-third of Internet browser users obtained their browsers from their service provider; hence Microsoft’s exclusionary agreements with those firms substantially foreclosed Microsoft’s browser competitors from a vital means of distribution.

200. The exclusionary restrictions in Microsoft’s IAP agreements were not reasonably necessary to further any legitimate procompetitive purpose and impaired competition in an unnecessarily restrictive way.

201. Microsoft’s exclusionary ISP contracts, expressly targeted at its primary Internet browser competitors, further foreclosed non-Microsoft browser developers from access to customers and further impeded their ability to distribute Java and other software capable of eroding Microsoft’s operating systems monopoly.