The Standards Blog

EU Initiates Investigation Against Microsoft OOXML Push

OpenDocument and OOXML

The Wall Street Journal reported this morning that EU regulators have announced a third investigation into Microsoft's conduct on the desktop.  This latest action demonstrates that while the EU has settled the case against Microsoft that ran for almost a decade, it remains as suspicious as ever regarding the software vendor's conduct, notwithstanding Microsoft's less combative stance in recent years. The news can be found in a story reported by Charles Forelle bylined in Brussells this morning. 

According to the Journal, the investigation will focus on whether Microsoft "violated antitrust laws during a struggle last year to ratify its Office software file format as an international standard."  The article also says that the regulators are "stepping up scrutiny of the issue."  The Journal cites the following as the type of activity it will look into:

In the months and weeks leading up to [last summer's vote on OOXML], Microsoft resellers and other allies joined standards bodies en masse -- helping swell the Italian group, for instance, from a half-dozen members to 85. Opponents said Microsoft stacked committees. People familiar with the matter say EU regulators are now questioning whether Microsoft's actions were illegal. Microsoft said at the time that any committee expansion had the effect of making more voices heard; it also said rival International Business Machines Corp. mobilized on the other side of the vote.

A Microsoft spokesman referred to a statement issued last month, in which the company said it would "cooperate fully" with the EU regulator and was "committed to ensuring" the company is in compliance with EU law.

This newest investigation follows only one month after the EU announced two other investigations, one into the integration of Microsoft's Internet Explorer Web browser into Office and Windows over competing alternatives, and another relating to the degree and ease of interoperability that Microsoft permits other vendors to achieve with Office.

The investigation will be especially welcome in standards circles, due to the wide range of reports from the field alleging misconduct by Microsoft.  Although, as noted in the Journal article, Microsoft has claimed that IBM has engaged in similar conduct, I am not personally aware of any such incidents that have been reliably reported.

The results of this new investigation will, unfortunately, take far too long to become public to have much impact on the upcoming final vote on OOXML.  Still, the fact that the EU is opening an investigation into Microsoft's conduct - and no one else's - is telling.

I have found the OOXML saga to be particularly fascinating in the way that it has caught Microsoft at something of a crossroads.  The "old" Microsoft of Bill Gates was renowned for being a street fighter, bent on not just beating its competitors, but on "crushing" them.  In that spirit, it fought both US and EU regulators tooth and nail, greeting news of new investigations with press releases of its own, vowing to fight to the finish to vindicate its right to compete in its own aggressive fashion.

But with Steve Ballmer taking over as CEO, there was supposed to be a kinder, gentler Microsoft - one that would play nicely with its competitors.  When antitrust regulators in turn challenged this new Microsoft, it issued not challenges to fight to the end to prove that it had done nothing illegal, but statements promising to "cooperate fully."

But at the same time, Microsoft is still a tough competitor.  As Microsoft's Director of Corporate Standards Jason Matusow famously warned at his blog last year:

Make no mistake; all parties are looking at the full picture to find strategies that will result in the outcome they desire. Provided - of course - that they do so within the context of the rules that apply to the process, this is exactly what one should expect to happen. It is going to be a very interesting next few months.

Indeed, the months that followed proved to be interesting indeed.  Microsoft said that some of its employees became over zealous, most flagrantly in Sweden, where marketing assists were promised to several business partners as incentives to join the national standards committee and vote for OOXM.

Now, it appears that the EU has found the events of last year to interesting as well.  It seems that regulators (in Europe, at least) are not yet convinced that the "old Microsoft" has truly given way to the kinder, gentler "Microsoft."  Or, at least that they are not yet willing to take that transition for granted.

I particularly applaud this action, because the credibility and integrity of the standard setting system has been called into serious question by the events of the last year.  Whichever way the final results come out, the formal standards system will benefit from the fact that regulators were willing to get to the bottom of things when the trust of the public in standard setting was increasingly placed at risk.

For further blog entries on ODF and OOXML, click here

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Comments

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"According to the Journal, the investigation will focus on whether Microsoft 'violated antitrust laws during a struggle last year to ratify its Office software file format as an international standard.'

may be they can ask some people at the ISO National Bodies of Cyprus island, Jamaica island, Malta island, Cote d Ivoire and Lebanon, what caused their "sudden" motivation to ask (and get) ISO JTC1 P-member status a few days previous to DIS 29500 september/2007 ballot closing...

... just to vote unconditionally yes to +6000 pages of a notably flawed specification ( which until now achieved an outstanding mark of +3000 observations and +2000 quick-fixes/deletions/deprecations with only a few months of a rushed review and which final proposed text remains undefined ) generated in less than 1 year in a closed, not traceable nor accountable process at an ECMA Technical committee formed and lead by Microsoft.

I wonder how much technical review meetings took place at this national bodies to review DIS 29500 ( any minutes of this meetings? ) and what caused their unprecedented interest in Document Description and Processing Languages standards related to structured markup languages (specifically the Standard Generalized Markup Language (SGML) and the Extensible Markup Language (XML)) in the areas of information description, processing and association ( ISO JTC1 SC34 area of interest ).

I don't want to be disrespectful with this countries, but i don't consider standards and standardizations as a "game to win" ( it seems that some corporations have this point of view ).

I see here an amazing lack of respect, because many responsible JTC1 P-members ( with background and expertise in this field ) did a lot of *hard* work to review DIS 29500 to decide if it has the technical merits to be an ISO fast-tracked standard ( i.e: UK BSI [1], USA Incits/V1 [2], Japan, Canada [3], China, India, France [4], etc. ) and this other national bodies just seems to be pawns in the game, leaving the technical work aside. 

Wake up ISO, wake up end users ! demand quality in standardization ! Money shouldn't buy standards.


              franco merletti


[1] http://www.xmlopen.org/ooxml-wiki/index.php/DIS_29500_Comments
[2] http://www.ibiblio.org/bosak/v1mail/
[3] https://forums.scc.ca/forums/scc/dispatch.cgi/public/docProfile/100009/d20070504104953/No/t100009.htm
[4] http://iso-vote.com/afnor.html

Interesting, but I have to wonder exactly what they can achieve with it. Of course, they'll be too late to affect the upcoming BRM, but even if we ignore that, what kind of jurisdiction does the EU even have in cases like these? The ISO is an international and global entity, the EU is Europe only. I mean, I can't imagine they can tell the ISO to cancel a standard or something like that. Perhaps they can simply "unstandardize" it inside Europe? Or just fine the hell out of Microsoft? Or what?

Anyone know a bit more about this stuff?

In any case, it's nice to see that *someone* cares about this stuff. :)

It's true that the EU might not be able to tell ISO/IEC JTC1 what to do, but it can fine Microsoft for anticompetitive behavior in the EU, where, coincidentally,  quite a bit of the conduct did occur.  The EU might also require Microsoft to actually implement OOXML quickly, having forced the vote.

Now wouldn't that be interesting?

  -  Andy

The EU might also require Microsoft to actually implement OOXML quickly, having forced the vote.

Trouble is, aside from some header lines it's hard to not comply with DIS-29500.  Everything is optional.

Otherwise, if there were a serious compliance test it would be most amusing to have MS Office banned unless it strictly complied.

In reply to by Anonymous

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Since you mention it, there are more than few comments indicating that a reference implementation is needed, that there is no definitive compliance section, that a 'standard' with only one implementation is not standard, that IPR issues may prevent other implementations, that the GPL is not sufficiently protected by the MS OSP, etc.

IIRC, the comments about the lack of a compliance section argue that any standard without strong, clear compliance criteria has no value since 'standardization' on that standard will be impossible.

I believe that Italy has also volunteered to build the compliance certification checker and a reference implementation.

Given that Italy is part of the EU, I can easily see the EU requiring proof of strict compliance using Italy's work in order to qualify for sale in the US.  This would be a reasonable compitition-preserving requirement on the part of the EU commission since the multiple existing implementations of ODF can already be verified as interoperable based on both the standard and on proven interoperability but the semi-proprietary MSOOXML, implemented (or not) by at most one vendor cannot be verified to be compliant with the ECMA/ISO-draft document.  Furthermore, if we take Microsoft at their word that all those other implementations are OOXML-compliant, then MS must become (and maintain) compatible with *ALL* those other implementations (Novell, IBM, Gnumeric Spreadsheet, etc.  This too can be easily verified and required by purchasing authorities if not by the EU commission - after all, they all implement the same standard - don't they ? ... and they have all been identified by Microsoft as being full and interoperable implementations of OOXML, so if MSOffice does not measure up, then MSOffice *should* be banned from procurement lists.


--Ed

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> In that spirit, it fought both US and EU regulators tooth and nail, greeting news of new investigations with press releases of its own, vowing to fight to the finish to vindicate its right to compete in its own aggressive fashion.

Microsoft didn't have to win battles with regulators.  It just had to make the battles drag on for as long as possible while it continued the activities that attracted the regulators' attention.   By the time the battles were over, Microsoft had made more money from the activities than the fines would cost, and it had also ensured the continuation of the ill-won income by establishing dominance in new markets.

Microsoft doesn't have to win the legal battles.  The fines are just a cost of doing business to them.

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When antitrust regulators in turn challenged this new Microsoft, it issued not challenges to fight to the end to prove that it had done nothing illegal, but to "cooperate fully."

Someone (maybe at Preston, Gates & Ellis) may have pointed out that a combative stance towards people who enforce their decisions with guns is less productive than promising to cooperate fully.  Regardless of whether the softer rhetoric is matched by any actual cooperation or not, it buys time very very cheaply.

For instance, when served with a discovery request a party can flatly refuse.  Next step is a motion to compel, which one way or another will be resolved.  Alternately, the party can simply drag its feet while exchanging mountains of correspondence.  The end result may also be a motion to compel, but one much delayed.  Boies, Schiller, & Flexner have proven in SCO v. IBM to be masters of this approach.

I propose to you that Microsoft's "cooperation" with the EU Competition Commission is of the latter sort.

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It's somewhat questionable whether Microsoft will have a publically-available implementation of Windows and Office for much longer. Then BBC shows this happening ; currently 5.5 million unique viruses seen for Microsoft Windows, and growing at 3000 per day.

Anticompetitive behavior ... by which I mean 'selling at a loss to a segment of the market', 'giving a discount conditional on selling to every unit, as distinct from a discount for quantity', 'paying 3rd parties to engage in commercial litigation against your competitors', and 'bribing people in charge of purchasing decisions' ... tends to cause competitors to abandon the business. There is no point attempting to compete; you do better spending your resources building a different business entirely. The Monopolist's business grows, but it grows very sickly indeed.

IBM isn't selling OS/2 any more. IBM isn't marketing Lotus SmartSuite; you can buy it 'direct'  for $298 plus tax, but there's no salesman to give you a quantity or educational discount, and the IBM web site does point out that you can download Lotus Symphony at no charge 'for home, school, and office'. There are plentiful IBM products and services for Linux , but IBM is very picky about the contracts it will sign, and if you want a Linux out of IBM then you can't get it without signing a contract. The skin is tight as a drum.

So what  is going on ?

Fewer and fewer people are in a position to remedy the virus problem. For many, it's questionable whether they are on the side of Microsoft (where Windows and Office should behave the way they left the factory), or the virus (where Windows and Office look like New Orleans after Katrina breached the defences). It's like Superbowl, you root for one team or the other, you know one of them is going to win, and you hope it will be yours ... but you know that there are others who root for the other team, and it wouldn't be a ball game unless it was so. "I will be on whichever side my customers pay me to be on" is a reasonable approach.

New technology is emerging at IBM AlphaWorks all the time, like steadily-erupting volcanos making new islands in one part of the world, while erosion elsewhere gives land back to the sea.

What of other businesses, other corporations ? What do they invest in ? What businesses do they try to grow ?

What of schools and universities ? Will they teach 'deployment of standards' ... IEEE POSIX and ISO26300 ODF XML ... ?

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Duane Nickull has lifted the first two paragraphs of this blog entry word for word (plus about five more) and then posted them to his blog as his own work.  Rather comically, he cut and pasted a little too much, and included the intro to a quote, but not the quote itself.  You can find his reproduction, plus a few sentences he added here.  That first paragraph, and the next line of text, appears as follows:
The Wall Street Journal and Information Week reported this morning that EU regulators have announced a third investigation into Microsoft's conduct on the desktop. This latest action demonstrates that while the EU has settled the case against Microsoft that ran for almost a decade, it remains as suspicious as ever regarding the software vendor's conduct, notwithstanding Microsoft's less combative stance in recent years. The news can be found in a story reported by Charles Forelle bylined in Brussells this morning. According to the Journal, the investigation will focus on whether Microsoft "violated antitrust laws during a struggle last year to ratify its Office software file format as an international standard." The article also says that the regulators are "stepping up scrutiny of the issue." The Journal cites the following as the type of activity it will look into.
He then proceeded to submit my entry as his to Slashdot, also word for word (plus about five more) again without providing a link back here.  If you're interested in the comments thread, you can find the Slashdot entry here 

Rather shoddy behavior, I think.  Thanks, Duane.  Feel free to post an apology below.

  -  Andy

Apparently, this was an error at Duane's end.  He's sent me an apology and explanation, which he also posted at his blog, reading as follows:

Andy:

I have made sure this would never happen again. This was due to a communication error which was communicated to me as a text message, free to use. I would *never* use someone else's words intentionally.

Again, apologies and I'll make sure these comments stay here to make a public record.

Duane

4:48 PM
Apology and explanation accepted; stuff happens.

  -  Andy

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Andy, as a lawyer, could you point out which laws would be infringed by people interested in a standard participating in the standards process, if validly constituted? 

And could you also point out which laws would be infringed by competitors ganging together to prevent a competitor's technology being standardized (e.g. for competitive rather than technical reasons)?

Cheers
Rick Jelliffe

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Rick,

Being a US attorney, I'm not an expert on EU antitrust laws.  Luckily, the EU regulators are, and apparently they think that there's reason to think that Microsoft violated their laws, but that the other companies you refer to didn't. 

Presumably, they're the best experts, so I think you can just rely on them.  After all, Microsoft is already in constant contact with them as it is, so I'm sure that if there was any actual violation of EU laws by the other companies you are alluding to, I'm sure that Microsoft would have pointed that out.

Best,

Andy

Rick,

I think you're sending Andy after a Red Herring.  You're looking for *LAWS* that affect an international standards organization.

I think the right question to be asking is "can you point to the international standards organization *OR* the NB rules, laws, or procedures that are violated by a single competitor taking the actions that Microsoft took to force a document containing so much proprietary content through as an international standard by using/abusing the fast-track process"...  If you don't like the latter portion of the way I re-phrased your question, I can understand that (but it's the truth to many people world-wide).

My point here is that by specifically using the 'as a lawyer' conditional, then specifically requesting 'laws' to be identified, you totally ignore (and attempt to divert attention from) the individual NB procedures, rules, regulations, bylaws, and expectations of professional conduct that exist and that may have been (were?) violated as well as the rules, procedures, bylaws, expectations of good behavior, and other regulating documentation of the ISO subcommittee and the subcommittee's parent organizations.

Those, I think are the real governing principles that both you and Microsoft would have the world ignore in the interest of MS getting their non-implementable 'standard' approved at any and all costs in order to maintain their monopoly market advantage.

Cheers !

--Ed

Ed: Your comment make no sense to me: "the actions that Microsoft took to force a document containing so much proprietary content through"  but standardizing is the act of making the content *un*proprietary. It would be a good thing if more of the worlds proprietary technologies and documentation were made unproprietary, I would have thought.  The Google, Amazon, Ebay, Apple iTunes APIs, IBM mainframes, Windows API,  MS networking, etc etc: all the market-dominating interfaces (software, protocol, hardware) should be RAND-z standards progressively benefiting from openness: the format for MS Office should be just the start. Standards open markets up.

As far as being a red herring, it is a simple question and Andy is an international speaker on the subject so I thought he might have some information, or reflect on the position in the US. Is it general EU anti-trust law? Is it for public policy? Or are they required to conduct investigations if a complaint has been lodged? Or what?

Cheers
Rick Jelliffe

Rick,

I did not mean to confuse you.  Allow me to re-phrase that portion of my comment:

I intended to say something like " ... allow Microsoft to force a standard through a neutral standards body (such as the ISO) that requires so many closed, vendor-proprietary, non-released 'standards' (such as VML, VBA, etc) in addition to both technical and legal (patents & copyrights) barriers to implementation by 3rd-party (especially FOSS) developers."  Technical barriers include references to tags like "AutoSpaceLikeWord95" that have no specification and that are not covered by releasing the binary format specs because the auto-spacing function is in the application - not the disk format.

Yes, I realize that in the last few days, Microsoft has admitted that OOXML translators (and therefore interoperability) cannot be truly implemented without access to the binary file formats, resulting in the MS 'release' of the binary formats under their OSP.  I also note that the openness of the OSP is being challenged by many people because it does not clearly identify it's coverage or its compatability with the most popular open-source license - the GPL.

I continue to maintain that your question was misleading for the reasons I stated in my original post - had Microsoft not so blatantly disregarded the clear intent of the process, the expectation of gentlemanly conduct throughout the process, and the many common-sense expectations of fair play, perhaps there would be no need for the conflict that Microsoft finds itself in now concerning OOXML.

For my part, I continue to *expect* Microsoft to wake up one morning and pull the OOXML spec from consideration, to stop conflating the Office 2003 version of MSOOXML, Office 2007 version of MSOOXML, the ECMA version of MSOOXML, and the ISO version of MSOOXML with the terms "OOMXL" and "Open XML" since "Open XML" has been shown to be neither "Open" nor "XML".

I'm also waiting for Microsoft to wake up one morning and provide a definitive answer to the question of GPL compatability with the OSP, to either remove or deprecate all protocols and definitions in ISO-MSOOXML that violate current international standards (delete 4 of the 5 date formats, leaving just the ISO standard / Correct all mathematically incorrect spreadsheet formulas / etc), and to provide a no-nonsense confirmation that they will support and fully implement whatever document format DIS29500 winds up specifying.  In other words, should DIS29500 produce a format that requires re-working or patching MS Office 2007, that Microsoft will patch MS Office 2007 as appropriate to bring their office suite into standards compliance.

Unfortunately, I never get that much sleep.

--Ed

"I'm also waiting for Microsoft to wake up one morning and provide a definitive answer to the question of GPL compatability with the OSP,"

Microsoft is promising not to sue people pursuing to implement DIS 29500 when they implement certain features.

- They refuse to list these features, just vaguely describe them
- They suggest they don't know whether they will sue those who license their implementation under the GPL

This is totally ridiculous. If MS doesn't know when it will start suing, they should visit a psychiatrist. And if they don't know what they want, they should call off the whole thing.

Winter

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Rick,

Regarding your follow-on questions:  While I am not an expert on EU law, I can pick up on your question about whether there is an obligation to investigate if there is a complaint, at least to the extent that the practice in the EU is similar to that in the US which, on this point, I think is likely.

Anyone can bring a situation to the attention of the regulators n the US, and I expect that the same is true in the EU.  In the US, many do (I recently brought a situation to the attention of the FTC involving a US company that my client and I believe violated antitrust laws involving a RAND commitment).  However, the regulators are very busy, under-resourced, and (as you would expect) receive many more complaints than they can handle, many of them baseless.  Many situations that are brought to their attention elicit a "sorry, we're not going to pursue this," while in other situations (as in the case of my client), the FTC invited my client to submit written summaries, and the next step was to have a conference call with the appropriate folks at the FTC.  What happens next depends upon the results of such an initial and brief fact finding exercise.

I think that it is highly unlikely that the EC regulators ever open an investigation unless they have a reasonable basis upon which to proceed (this is certainly the case in the U.S.).  This does not mean (as the EC office stressed in its announcements) that it has determined that a violation has occurred.  Only that sufficient information has come to its attention to convince it that the expenditure of time and resources is justified on the basis of what they have already learned.

This also does not by any means mean that a formal complaint will issue.  The subject of the investigation may convince the regulators that the conduct was reasonable, or the regulators may conclude that the allegations were not based in fact, and so on.

In this regard, it is worth noting that the original complaint brought by IBM and other companies was made, I believe, in the summer of 2007.  It was not until the Opera complaint was issued that the EC regulators opted to bring an investigation based upon each complaint,  possibly because the second alleged actions created a pattern with the allegations made in the first. 

As regards the OOXML investigation, this is even less of a surprise, given that the EC had already mentioned that one of its two investigations would include an inquiry into insufficient "opening" of Office.

I would not be surprised if the EC would never have begun to look into the OOXML situation absent the two prior enquiries.  Antitrust regulators understandably are more concerned with patterns of misconduct that indicate a predeliction for ongoing abuse than with a single bad act.  Again, this has much to do with allocating resources where they can have the mostbenefit.

  -  Andy