Tech Law

Windows 8 Browser Brouhaha Draws Regulator Attention

The U.S. Senate Judiciary Committee plans to examine allegations that Microsoft is giving its own Internet Explorer Web browser preferential treatment over competing Web browsers in a version of its upcoming Windows 8 operating system.

“This is a preliminary inquiry,” Lynn Becker, communications director for Sen. Herb Kohl, told TechNewsWorld. Kohl is a member of the Judiciary Committee. “Our staff is trying to figure out the facts of the issue, but we’re not looking into a hearing at this time.”

Windows 8 RT is Microsoft’s operating system designed for ARM processors, which commonly run in mobile and tablet devices. Non-Microsoft Web browser makers such as the Mozilla Foundation, which makes the Firefox browser, have accused Microsoft of making it difficult for Windows RT to run browsers other than Internet Explorer.

They claim Microsoft doesn’t provide software developers with the necessary application programming interfaces for building programs capable of running on their browsers. The Judiciary Committee will review those complaints.

Could Be in Hot Water

If the inquiry continues to the hearing phase, competing browsers will have to show that Microsoft is taking over a significant portion of the market because of its reluctance to hand over APIs, Peter Carstensen, professor of law and the University of Wisconsin Madison, told TechNewsWorld.

Though the case may resemble the larger monopoly charges Microsoft faced more than a decade ago, this time around it could be easier for Microsoft to fix the problem. Then, they faced the threat of a mandated break-up, but in a matter like this, they may simply be obligated to hand over APIs.

“Here it appears that the remedy is much easier than in the big monopoly case. The order would require full access,” said Carstensen.

Even if Microsoft isn’t found in violation of any antitrust laws in the U.S., the company could face more scrutiny under the European Union’s tougher protections, said Carstensen.

“I suspect the EU rules will be even more likely to be violated by this conduct, if it is true,” he said.

Not a Monopoly Situation?

The allegations are reminiscent of the antitrust suits that Microsoft faced in the 1990s regarding the power it wielded, and allegedly abused, in its dominant market position.

“The past history counts, slightly, against Microsoft, as it is a repeat violator, but that is not likely to be significant,” said Carstensen.

Microsoft is now in a very different position than it was in the ’90s. Although Windows is still used on millions of desktop computers worldwide, Microsoft is struggling to gain a place in the tablet market, claiming a miniscule slice of the pie relative to Apple’s iPad and various Android tablets.

“A central question will involve market power,” Michael Carrier, law professor at Rutgers School of Law, told TechNewsWorld. “In tablet markets, at least, Microsoft does not have the monopoly power it did in operating systems in the 1990s, so at least in that market, a case against Microsoft would face an uphill battle. In the desktop market, it would be more likely.”

In addition, Microsoft is attempting to claim a technical defense, said Carstensen, which would make it tougher for Mozilla, Google or other third-party browser makers to claim the company was attempting to tear down competition.

“Microsoft’s defense on the merits and on remedy would be that the changes improve the efficiency of its system, and any harm to competitors is collateral damage, as it were,” said Carstensen.

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