Is the EU-Microsoft Deal a Victory or Defeat? And for Whom?

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Yesterday, the European Commission announced that it was considering moving forward with Microsoft's browser ballot idea.

If implemented fairly, that could represent a very nice windfall for Firefox. Here's a very interesting comment on the likely impact, posted on my open... blog by Mozilla's Asa Dotzler, someone who definitely has his pulse on what's happening in the browser sector:

The European Economic Area represents 78% of Europe's online population, 315 million users. The Windows installed base is estimated at approximately 285 million users, and IE market share on Windows in the EEA is at 61.7%, which gives a total of 176.5 million users who might be expected to see this ballot.

...

The "installed base" of users in Europe that still have IE 6 -- most of those 176.5 million users, don't know what a browser is and won't know what a browser ballot means. It's optimistic, I think, to assume that anywhere near a majority will do anything but close the window without taking any action.

Those who do take action, I think, will be basically making random guesses. For the action-takers, IE is probably the most recognizable icon and I suspect it will garner the majority of the clicks, regardless of placement in the ballot. Google also has a higher-profile logo than Firefox so I suspect Google will get the next highest number of clicks.

Firefox will probably come in third. (Then there's the ballot order issues. People tend to click the first item, in the proposal that's Safari, more often than the second. They also click middle items more often than the others (except first item) so Firefox has second to worst placement in the ordering as proposed.)

All that is why I think that the number who actually attempt to get Firefox will be in the tens of millions. That's not really bad at all. If this ballot means that over a period of 3 months, Firefox gains 10-20 million new users, I think it will be a big success. That growth could put Firefox right up against IE share in Europe. With a boost like that, Firefox could even surpass IE in Europe in the next year.

That's clearly great news, but there's something else tucked away at the end of that EU announcement:

In July 2009, Microsoft also made proposals in relation to disclosures of interoperability information that would improve interoperability between third party products and several Microsoft products, including Windows, Windows Server, Office, Exchange, and SharePoint (see MEMO/09/352 ). Microsoft is publishing improved proposals on its website.

The Commission welcomes this initiative. Even though it remains informal vis-à-vis the Commission, Microsoft’s proposal, which is in the form of a public undertaking, includes warranties that Microsoft offers to third parties and that can be privately enforced.

The key part of Microsoft's “Interoperability Undertaking”[.doc] is the following section :

Access to and use of the Interoperability Information shall be subject to no more than a nominal upfront fee and licensing terms which are compatible with Open Source Licenses. This is without prejudice to Microsoft’s right to make the use of Microsoft’s patented technology embodied in the Interoperability Information subject to a separate patent license.

Microsoft commits to duly inform interested undertakings about the relevant patent claims and only to assert those patents against undertakings of which these undertakings have been put on notice in accordance with the conditions set out in Section D. below.

Now, the phrase “compatible with Open Source Licenses” is pretty vague. Does that include the GNU GPL, for instance? If it doesn't, it's a weak undertaking, but if it does, it could be significant. Similarly, what exactly “nominal upfront fee” means, and whether it is per project and truly negligible, are questions that will need to be answered before that undertaking can be judged.

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