Five years on [LWN.net]

Five years on

Posted Oct 2, 2010 23:40 UTC (Sat) by pboddie (guest, #50784)
In reply to: Five years on by FlorianMueller
Parent article: Red Hat Responds to U.S. Patent and Trademark Office Request for Guidance on Bilski

You can buy Linux computers from major vendors like Dell and HP.

If you can find them without playing "beware of the leopard". Likewise with machines without any operating system whatsoever.

Someone who wants Linux can get machines without Windows.

Yes, that's true: I'm using exactly such a machine. However, ignoring most of the machines built from components, virtually all of the machines sold on the Web site where I bought mine are bundled with Windows, including the "build your own" machines where you don't even get to do that without a copy of Windows magically appearing together with that mainboard, CPU, RAM, and so on. Now observe the same phenomenon throughout the breadth of the retail channel directed at "the consumer".

The reason they're less aggressively promoted is that there's less demand on the desktop for Linux than for Windows, but antitrust law is meant to ensure that demand and supply can drive a market as opposed to abuse distorting it.

Which brings us to the interesting case of the Web browser, does it not? After all, can't people who want Firefox or Opera install it themselves?

In the PC market, there's no need to force anyone because you can buy Windows separately, and you can buy every hardware component separately.

It's not just about being able to buy Windows separately; it's about being able to buy the hardware separately as well. (Besides, the only people needing to buy Windows separately are those who want to upgrade the version thrust upon them when they bought their existing hardware.)

You say that the two situations (mainframe and PCs shipped with Windows) are the same. They are not the same because a case of illegal tying is characterized by customers being forced to take something they don't want in order to buy something they need from a dominant vendor. No single PC vendor is dominant

Yes, but the operating system vendor is dominant. And doesn't competition regulation have anything to say about a bunch of companies getting together and stifling competition? If it were all about a single company doing something, all the cases involving collusion between, say, oil companies would fall apart when someone points out that it's not one single gigantic oil vendor involved.

Anyway, my point was that there's a genuinely open market for personal computers and operating systems that gets undermined by the vast majority of computers somehow needing to have a particular vendor's product installed on them. (Talk about supply and demand all you like, and I don't entirely disagree that such things are an influence, but why it appears almost impossible to drop a supposedly separate product from a purchase remains a mystery.) You assert that there's a genuinely open market for solutions that can run a particular proprietary mainframe operating system.

Since I'm a believer in interoperability, I support the idea that you should be able to run whatever you want on anything you can - that you shouldn't have to take the hardware if you just want the software - but not only do I not think that it has to be a completely extreme situation before the regulators need to get involved, I also think that such an extreme situation risks being perceived as something other than a market needing regulation. And then, if that judgement doesn't go your way, by your own criteria you've just put the regulators out of work.

So I hope the regulators feel that they have a role to play, even though history suggests that in the EU, at least, they would rather mess around with things like media players and Web browsers than get to grips with the underlying causes.

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Five years on

Posted Oct 3, 2010 0:32 UTC (Sun) by dlang (guest, #313) [Link] (1 responses)

back when IBM was investigated for their mainframe monopoly, the mainframe basically _was_ the computer market (there was a smaller market in mini computers, but microcomputers/PCs were not a noticable factor)

today the entire mainframe market is happily ignored by almost all businesses using computers.

At this point, saying that IBM has a monopoly on the mainframe market and should be forced to separate their hardware from their software is very similar to saying that Apple has a monopoly on their market (they are the only ones who make the hardware, and they forbid anyone from using their software with anyone else's hardware)

It would be nice to have both open, but the law doesn't require it, and in the Apple vs Pystar lawsuit recently, Apple got the court to rule in their favor in a big way (namely that copyright forbade pystar from installing OSX on their computers, even though they had purchased the appropriate number of legal copies)

In many ways, apple's control of their market is much more significant to consumers than IBMs control of the mainframe market.

Five years on

Posted Oct 3, 2010 4:54 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

today the entire mainframe market is happily ignored by almost all businesses using computers.

This statement is true only if you base it on the number of companies but disregard size. In terms of economic weight, we talk about legacy program code worth $5 trillion ($5,000 billion) still in use, and about 80% of the world's business data still being processed by mainframes. IBM itself said a couple of months ago that Western civilization runs on the mainframe. You can read more about it here.

At this point, saying that IBM has a monopoly on the mainframe market and should be forced to separate their hardware from their software is very similar to saying that Apple has a monopoly on their market

From a competition point of view, those cases are different. In order to counter the claim that they dominate what competition law calls a relevant product market, both companies would have to argue for a broader market definition including all sorts of competitors. Apple would have a much better basis to do so than IBM. Apple's products are generally more expensive than those of their competitors, but the difference is limited enough that one can argue they are exposed to competitive pressure from others operating in the same relevant market. By contrast, if you look at IBM's price discrimination in the mainframe market, you can easily see that mainframes and other servers aren't the same market. Otherwise IBM wouldn't charge you about ten times as much -- for identical hardware -- for the execution of mainframe legacy workloads as for new applications operating in a more competitive market. Also, mainframe memory costs about 60 times as much as memory for other servers. Sure, mean time between failures is very high, but still that's the kind of price difference that shows it's not the same market.

It would be nice to have both open, but the law doesn't require it,

In IBM's case it can certainly be imposed, like it was in the past, and I'm confident that this will be the outcome of the ongoing investigations in the EU.

Five years on

Posted Oct 3, 2010 4:45 UTC (Sun) by FlorianMueller (guest, #32048) [Link] (1 responses)

Which brings us to the interesting case of the Web browser, does it not? After all, can't people who want Firefox or Opera install it themselves?

At first sight one may believe there's an important parallel, but there isn't under competition law.

If bundling is abused by a dominant vendor in one market to gain an unfair unadvantage in another market (which was the argument in the Media Player context, used by complainants as a precedent for the Internet Explorer discussion), then there's a competition problem. But note the "dominant vendor" requirement. There's no dominant PC company, and instead major players like Dell and HP do offer Windowsless Linux configurations.

Yes, but the operating system vendor is dominant.

It was found dominant. But being dominant isn't illegal. It's the combination of dominance and abuse that's illegal.

And doesn't competition regulation have anything to say about a bunch of companies getting together and stifling competition?

Sure, that would be called a cartel: a form of cooperation with the object of illegally restricting competition. There's no indication that Dell, HP and others have conspired against Linux. On the contrary, some vendors are known for a very pro-Linux attitude, but they all have to respond to what the market (in the context you care about: the consumer market) wants at this stage.

even though history suggests that in the EU, at least, they would rather mess around with things like media players and Web browsers than get to grips with the underlying causes.

It's interesting that you say this because five years ago I criticized the European Commission in a similar way. I said that on the one hand they were pursuing Microsoft with antitrust law but on the other hand supporting the very software patents Microsoft wants. I would have preferred a focus on software patents, especially since I was mostly concerned about patents on codecs in terms of the ability of others to compete with the Media Player.

But as far as interoperability is concerned, the European Commission is indeed looking at what might ultimately become a legislative solution that would affect all "significant market players" in order to establish general rules rather than only pursue individual cases,

Five years on

Posted Oct 4, 2010 11:37 UTC (Mon) by pboddie (guest, #50784) [Link]

Rewinding to bring in the context...

They are not the same because a case of illegal tying is characterized by customers being forced to take something they don't want in order to buy something they need from a dominant vendor. No single PC vendor is dominant
Yes, but the operating system vendor is dominant.
It was found dominant. But being dominant isn't illegal. It's the combination of dominance and abuse that's illegal.

Which is what you already said before you trimmed away the context. Yes, you can get alternatives to Windows on hardware purchased through mainstream retail channels, if you managed to navigate to the disused lavatory where those alternatives are "on display", and you might even be able to ask for no operating system at all, but most "consumers" get told that Windows is "part of the product" and that they have to take their complaints to the vendor (the classic lazy retailer excuse, contrary to consumer regulation in various countries), who in turn often tell the customer the same thing or that their deal with Microsoft precludes any kind of refund. At which point, most people determined enough to pursue the matter that far (and few people are) are likely to give up and write off their loss, which is the gain of the "dominant vendor", of course.

Now maybe this isn't a "big R" regulatory matter that involves finger-wagging from the European Commission - although it is baffling that they entertain the dog and pony show that is the Web browser parade with all its back-and-forth between the EU and Microsoft, but not something effective like this - but it certainly is a matter that requires some kind of "small R" regulatory intervention, at least from the perspective of anyone whose idea of buying stuff isn't having extra stuff thrown into one's shopping basket and being made to pay for it. But I accept that our perspectives may differ on such matters.