Windows 7 ‘E’ Edition – Pre-emptive action or two-fingers to the EU?

From Paul Thurrott’s Short-takes of June 15th 2009:

Like the specter from beyond the grave that it is, Opera has opined on Microsoft's Windows 7 "E" Editions proposal. Opera, you might recall, set off all this silliness when it complained about Windows/IE bundling to the EU. (Opera is also the only browser company that hasn't gained market share against IE in the past three years. Go figure*.) So how did Opera react to news that Microsoft would remove IE 8 from Windows 7 in Europe? With its usual grace, of course. "Microsoft is trying to set the remedy itself by stripping out IE," Opera CEO Jon von Tetzchner said. "They are trying to replicate the remedy [from] the media player case, which we all know didn't work." Really? Two things about that. One, that remedy was the EU's remedy, not Microsoft's remedy. And I'd argue that it did work—by pointing out that government-controlled product feature wrangling isn't a good idea. That is, EU consumers overwhelming [sic] chose the version of Windows that included all the features instead of the one that didn't. And speaking of consumer choice, Opera's share of the web browsing market is just .72 percent. Why are we even paying attention to these people anymore, especially when there are viable competitors (Firefox, Chrome, and Safari) that are doing just fine despite Microsoft's so-called abuses? This whole thing is ridiculous. I'd call for a boycott of Opera if anyone was actually using its desktop products.*

*My emphasis.

As Leo Laporte suggested in the Windows Weekly podcast last week, Microsoft’s action was “so obviously just an F.U. to the E.U”. Good one, Leo! And who hasn’t wanted to raise two fingers to the EU once in a while?

If Microsoft does, in fact, make available Windows 7 ‘E’ Edition it will ultimately be down to the European OEMs to decide whether to ship PCs with a version of Windows 7 without the IE or demand the regular version from Microsoft. Shipping an OS without any browser, of course, is hardly an option – as how are consumers expected to obtain a browser from the internet? The EU could, I suppose, require Microsoft to offer competing browsers via Microsoft Update or perhaps force OEMs to ship Windows with competing browsers. Quite how that would sit with the EU’s stance on ‘competition on the merits’ though, I’m not quite sure.

The truth, of course, is that the EC Commission has about as much trust for Microsoft as they would a coiled cobra. And logical though Paul’s arguments are in respect of the growing competition in the browser market in recent years – in which Internet Explorer is losing rather than gaining ground – I suspect they are of little consequence to the Commission or the courts should it get that far. The ECJ famously held in the British Airways case a few years ago that the fact Virgin Atlantic’s market share actually increased during the time of BA’s alleged abuses did not matter, as without those abuses their market share would have grown even further. That’s a tough one to bounce back from and given that it’s MS involved, I wouldn’t hesitate in guessing that a similar attitude would be adopted in condemning Microsoft’s conduct.