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 (ۦ14) 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 -------

ۦ1. (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.

ۦ2. (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 ---------------------------------

ۦ3. (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.

ۦ4. (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 ----------------------------------

ۦ5. (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.

ۦ6. (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 -----------------

ۦ7. (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.

ۦ8. (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.

ۦ9. (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.

ۦ10. (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.

ۦ11. (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.

ۦ12. (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.

ۦ13. (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 ----------------

ۦ14. (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 ----------------------------

ۦ15. (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

The High Cost of Making Scepticism of Proprietary Voting Machines a "Trump" and "Conspiracy Theory" Territory
Time to get back to paper? Or read an old paper?
Today We Got an Early Birthday Gift
Exciting times
[Meme] Going Too Far to the Left Can Breed Militant Ideology
Some people can never be appeased because they prefer not to be appeased
FSF Expressed No Preference Regarding Presidential Candidates (Its Founder Did)
Because he is a principled person, he does not prioritise loyalty to customers or employers (money)
Who Next on the Linux Foundation's 'Kill List'?
Remember that only about 2% of the "Linux" Foundation's budget goes to Linux
 
[Meme] Questioning Proprietary Software? Not OK...
A disaster long in the making
Links 07/11/2024: HTTP/3, Health Research, and Punditry
Links for the day
Gemini Links 07/11/2024: On Writing Publicly and Record Player Table
Links for the day
Open Source Security Foundation (OpenSSF) Hosted SOSS as Microsoft Propaganda Platform With Microsoft Front Group OSI
They essentially promote what they're attacking under false pretences [...] OSI is deeply corrupt. It's more toxic than arsenic.
Anti-Linux FUD, Now in LLM Form, Thanks to Brittany Day
They attack Linux with chatbots
[Meme] When You Discredit People Who Discredit Secret Code
proprietary systems with hundreds of millions of transistors (and hundreds of millions of lines of code)
Links 07/11/2024: Online Manipulation in Social Control Media, Election Deniers, and More
Links for the day
Gemini Links 07/11/2024: emacs-guix and File Hoarding
Links for the day
[Meme] Election Day at the European Patent Office
Less than 60 minutes left to cast your vote
Staff Union of the European Patent Office (SUEPO) Election Ending Today
In one hour
[Meme] When the Patent Office Does Illegal Things and Staff Speaks Out
many leaks received today
Apple's Debt Has Skyrocketed While Gimmicks Like Vision Pro Failed
In Apple's case, the debt is almost double the "Cash on Hand", which isn't even cash
A President Trump is Excellent News to Microsoft
His racist policies gave lots of contracts to Microsoft
Links 07/11/2024: Facebook Scams, Journalists on Strike
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 06, 2024
IRC logs for Wednesday, November 06, 2024
Microsoft-Connected Publishers Want Us to Think That Linux is Some Sort of a Virus and a "Backdoor"
"The problem is with windows and the attack vector is via Windows"
We've Made it to 18! Here's to Another 18!
Going on for another 18 years means until some time at the end of 2042
Links 07/11/2024: Political Angst and Laptop Issues
Links for the day
Even LKML Subjected to Slop/SPAM by Guardian Digital, Inc (linuxsecurity.com)
They're really awful
Links 06/11/2024: BPF in RFC 9669, More Facebook Fines for Privacy Abuses
Links for the day
Gemini Links 06/11/2024: Political Shock and Hermaic Encouragement
Links for the day
Planet Debian Allows Politics (But It Depends on Your Opinions and Debian's Big Sponsors)
Planet Debian is OK with politics... as long as all your political opinions are the "correct" ones and you add cute animals
What Makes RMS Such an Attractive Target ('Discreditisation' Campaigns)
Don't be so easily fooled
The Biggest OEMs or Vendors of GNU/Linux Stopped Competing With Microsoft (Which Pays Them to Promote Windows, Too)
Where are the competition authorities (or regulators for that matter)?
Let's Encrypt Falls to a New Low of Only 0.6% of Gemini Capsules Known to Lupa
In Gemini Protocol, certificates for encryption are required, but centralised Certificate Authorities (CAs) aren't needed
Computer-Generator Crap Flooding the Web, the Latest Example About "Linux"
Here's today's example
Links 06/11/2024: Election Disinformation and Legal Actions
Links for the day
Gemini Links 06/11/2024: Stargazing and Death on Hallowe'en
Links for the day
Would You Trust a Liar?
Why lie about the authorship?
Mass Layoffs at Mozilla Announced During US Elections
Maybe nobody will notice?
[Meme] Announcing "Results" Before Everyone Even "Played"
There is a "tech" angle to otherwise political news
US Polls Close in One Minute (Social Control Media Does Not Care, Will Not Wait)
US election results will be known in about 2 days
Concentration and Centralisation Versus Aggregation or Syndication
KDE has a history of burying old sites
Social Control Media, Even Hours Before Polls Have Closed
Has social control media controlled by CPC (TikTok) and the Trumpmobile guy (Musk's "X") done enough to convince people not to even vote (based on presumptive "results", presented a long time before all polls have closed)?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 05, 2024
IRC logs for Tuesday, November 05, 2024
Wayland Pains in Community-Led Distros of GNU/Linux
Few people and companies use Wayland; there's hardly any technical or practical reason to choose it
IBM Still Conflating Microsoft With 'Security'
As a meme
Sanctions Cause Fragmentation in Software
some Chinese Linux developers are already subjected to restrictions similar to Russians'
Web Failing With Slop, Even in 'Linux' Sites (LLM Spam)
Add SEO prompting to the mix and the Web becomes a pool of slop, not knowledge
[Meme] State of the World Wide Web and Online Journalism
Technically a failure (DRM) and cannot even get basic things right
Trump's signature policy, building a wall, copied from Irish-Australian student politician
Reprinted with permission from Daniel Pocock
Linus Torvalds' self-deprecating LKML CoC mail linked to Hitler's first writing: Gemlich letter
Reprinted with permission from Daniel Pocock
[Meme] Turning 18 in One Day
just one more day
Birthday Tomorrow
Many cakes and drinks are ready; we're one day away now
The Internet is Failing to Protect Democratic Processes and Human Knowledge
Amplifying lies, rewarding plagiarists
Links 05/11/2024: Criminal Referrals Regarding Patent Trolls and Disinformation About the Election Process (Already)
Links for the day
Gemini Links 05/11/2024: 'App' Needed for Parking, NNCP, Gomphotherium
Links for the day
How Voting Does Not Work
You cannot vote from an "app"
Saving the Planet With Honesty, Transparency, and Sharing (Not Only of Computer Code)
GAFAM is destroying the only habitat humans and other animals have and it'll only get worse
Disinformation About Election Outcomes Even Before Any Election Outcomes (or Election/Voting!)
seeding doubt about election outcomes
Links 05/11/2024: Bluesky and Enshittification, Pugad Baboy, and Lots of Disinformation Flooding the Web
Links for the day
[Meme] Sweaty Under the Belly
"OK, my critics are 'spam'"
Microsoft Bribing Canonical (to Stop Competing) and Bribing Users to Shun the Competition
Canonical is worth shunning
[Meme] The 2024 'Info Bros'
And prehistoric googling
Computers Getting Worse (for the User) Over Time
This is like Windows-ism coming to "Linux" through the hardware
[Meme] How NOT to Vote
Another form of (mostly-unspoken-of) election interference
An LLM Inside a 'Search' Engine Means That Companies Tell You What They Want, Not What Web Pages to Visit
The future of 'googling' things might be as unreliable as using Social Control Media as a source of information
Google's Debt Has Increased and 'Cash on Hand' Fell by 22.27% This Past Year
These are the numbers that the corporate media intentionally leaves out
Against Outsourcing of Sites and E-mail
Software Freedom is great, but it is not enough if you let someone else do it 'for you'
Drew DeVault: People Talking About My Attack Site (Against the Founder of GNU/Linux) is "Spam"
"Spam on sr.ht mailing lists"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 04, 2024
IRC logs for Monday, November 04, 2024
There's a Reason Why Techrights is Turning 18 and Tux Machines Will Turn 20.5 Next Month
I started advocating GNU/Linux when I was a teenager
"Oppose the Fascist"
what the founder of GNU/Linux said
Techrights Has a Long History of Fighting to Expose 'Team Mono' or Microsofters Inside GNOME
Never downplay the malice of Microsoft and its operatives
Halloween, All Saints Day & Swiss citizenship
Reprinted with permission from Daniel Pocock
Gemini Links 05/11/2024: Halloween Over, Intention and Implementation, Bookmark Syncing
Links for the day