You can't pick and choose your elements
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| Author | Content |
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| dinotrac Feb 28, 2007 4:23 AM EDT |
You can't leave out any of the elements, which creates a problem for you: As to your arguments on 81: 1. All manufacturers effectively act to set the selling prices of their products by charging a wholesale price. Whatever Microsoft charges for it's software must be made up in selling the product, but that's true of ever single product sold in the open market. Big deal. 2. I'm not sure of the current state of the "no-OS" clause. Is it still in there? No matter. I would prefer it not be, but it's no big deal. Dell sells effectively "no-OS" machines by providing them with FreeDOS. The big thing is that it doesn't require Microsoft anything. 3. As to being a supplementary obligation without connection to the subject, any judge who didn't laugh you out of court shouldn't be sitting on the bench. You can't possibly believe that, can you? As to 82: Huh? Since when did a finding of monopoly power in one market equate into a broad brush lack of freedom to do business? Microsoft was found to have a desktop monopoly in the United States and was dealt with (albeit very poorly) under US law. |
| purplewizard Feb 28, 2007 7:59 AM EDT |
You're misusing Art 81. by over looking that it is about distorting trade between member states. So an agreement by Microsoft that in the UK for example Vista costs £1 but you are not allowed to resell it anywhere else in Europe would have that affect. Because you could build machines at tens of Euros less than other places in Europe. Hence PCs from the UK might be cheaper. But even then they might claim similar protection of brand reasons for the benefit of the consumer as I think were relevant in the Levi's v Tesco case where they (and others) were buying them for $30 over the counter in the USA, bringing them to Europe and selling them for as about as many pounds which was ten or so less than regular pricing. But because this was buying external to the common market it was not discriminatory in that way. Now to look at what is said about Art 82. |
| dinotrac Feb 28, 2007 8:06 AM EDT |
purplewizard - Thank you. I had included the preamble to the section in my comments and must have whacked it out. That's why I referred to picking and choosing elements. Things have to be kept in their proper context, and with cognizance of the purpose of the act. |
| hkwint Feb 28, 2007 8:33 AM EDT |
Quoting:but that's true of ever single product sold in the open market. Big deal. Yes, it is. Microsoft is different to 'ever single product sold in the open market', because it effectively creates a closed market by means of their monopoly and their dominant position. Furthermore, network effects play a role, which only goes for less then 5% of all products sold in any branche. Quoting:I'm not sure of the current state of the "no-OS" clause.Nobody except MS and the OEMs are. Therefore, it's time someone checks it. Quoting:Huh? Since when did a finding of monopoly power in one market equate into a broad brush lack of freedom to do business? Ask that to the Euro-Commission, Microsoft is already punished for half a billion Euro's for that. And after all, I don't care that much about what somebody else tells me about the competition articles anymore, since they are no judges judging in this case anyway. If people laugh at me, so be it. At least I tried to do something about it, which is a lot more than most complainers can say. |
| dinotrac Feb 28, 2007 8:36 AM EDT |
>Ask that to the Euro-Commission, Microsoft is already punished for half a billion Euro's for that. OK. So Microsoft has already been punished. What could possibly support your reasoning that they should be punished ad infinitum without any kind of hearing? |
| hkwint Feb 28, 2007 8:39 AM EDT |
Compability isn't the main anti-trust issue. Pre-installed software, on the other hand, is, in my opinion. |
| dinotrac Feb 28, 2007 9:32 AM EDT |
>Pre-installed software, on the other hand, is, in my opinion. That's fine, but raises the question: Who has the monopoly? Does Dell have a monopoly that would bar it from pre-installing software that makes its product attractive to more people? Are European customers unable to get computers from other resellers without that pre-installed software? What is the harm to consumers? |
| Bob_Robertson Feb 28, 2007 10:00 AM EDT |
Dino, I agree. Trying to tell Dell what they may or may not preinstall is just as bad as telling a consumer what they may or may not buy. I do not begrudge Microsoft's skill at negotiating sole-source OEM contracts any more than I "begrudge" anyone for having thought of something before I did. Envy might be a better word, but even that is too strong. What I really, REALLY want is for people to know they don't have to buy Microsoft with their new computer. That's why I like the refund efforts. So buy the Dell that is $53 less and has Windows, then get a refund. If enough people do that, Dell might realize they need to drop the price on their non-Windows machines. Or not. Maybe F/OSS will be such a small portion of their sales that it won't be worth their effort. That is Dell's decision. Meanwhile, I'll buy generic white-box and build my own with nary a pre-installed anything at all. |
| hkwint Feb 28, 2007 12:30 PM EDT |
Quoting:So buy the Dell that is $53 less and has Windows, then get a refund Well, that's exactly the goal. I'm not trying to tell Dell what to install or not, just make sure people are able to get a refund, and make that easier than it was in the past, when people had to phone to India several times to get their refund. The refund policy should be clearly visible on the site, and it should be easy to find. OK, my legal points may suck, but if they help to reach the goal, to get a refund without much hassle, that's fine for me. Furthermore, I like to make use of the 'actions' at Dell, like an extra big harddisk and WiFi card for the same money. However, these actions are for Windows Vista only at the moment. The demand to make the prices public, is just to be sure we aren't put away with less money than Windows costs. It may have been not very clear from the article, but as the title says, the ultimate goal is to be able to get a refund for every lap/desktop one can imagine, without too much effort. That's not a big demand, is it? |
| jimf Feb 28, 2007 1:42 PM EDT |
> That's not a big demand, is it? Corporations giving you back money??? Talk about delusional... |
| dinotrac Feb 28, 2007 3:39 PM EDT |
>That's not a big demand, is it? No, it's not. Dell should make very clear what it's policy is if you don't want Windows. It's ok with me for them to say, "If you don't want Windows, you don't want Dell", but they should be clear. |
| Scott_Ruecker Feb 28, 2007 5:26 PM EDT |
Quoting:"If you don't want Windows, you don't want Dell" I wish I could actually see an advertisement like this. It would be the best advertisement I have ever seen in my life. |
| purplewizard Mar 02, 2007 5:53 AM EDT |
I've started reading the case report for the most recent Microsoft v EU Commission and it makes me think there are still clear areas to complain for a similar case on. For example rather than Sun's complaint for the release of the protocols to interact with the dominant software how about 1/ demand that the full information on the device drivers be released because without them no other operating system can hope to compete and enter the market. Art. 82 2/ allege that the various bundling OEM deals that Microsoft asserts with PC makers is such as to stop machines with no or alternative operating systems being sold or advertised in competition with Windows. Art. 82 3/ that their dominance is such that they can offer the OS to the consumer as much higher than they sell to OEM forcing them to buy new machines to get it, a practice that is in agreement with the OEMs and therefore market distorting Art. 81 those are just a couple of examples thinking from a consumer point of view |
| Bob_Robertson Mar 02, 2007 6:33 AM EDT |
"3/ that their dominance is such that they can offer the OS to the consumer as much higher than they sell to OEM forcing them to buy new machines to get it, a practice that is in agreement with the OEMs and therefore market distorting Art. 81"
In the US, the automobile insurance business is very tightly regulated. Many states, such as where I live now, set the price at which insurance companies have to sell. However, insurance companies are "allowed" to offer various discounts. Good driver, no tickets, experience, driver's education, etc. So there actually is competition due to these various discounts, a situation which the insurance regulations were supposed to prevent. How would you discern the difference between these following two statements, enough so to prove that Microsoft was doing one and not the other? "Microsoft sells our Premier products at prices designed to compete in the retail market. We consider the value for the price to be excellent. Our OEM channel, as in every other industry, is given preferential pricing based upon mutually agreed upon sales contracts which allow the OEM to compete within their own market." or... "Microsoft sells so much of our Premier products through the OEM channel that we have been able to stabilize our cost/profit margins through those channel sales. The retail price is based upon expectations we observe with consumers, and bolsters the apparent benefits of new purchases through OEMs while allowing high margins for the meager number of actual retail sales which ensures that point of sale stores will continue to carry the product." After writing them, I have to ask, why is either one "wrong" to the point of being prosecutable? Here's an excellent example of something that happened to me: I was working retail in an office supplies store. I would walk by the software wall, because I would much rather have been assigned to the computers than the pens and glue. Oh well. One day, I saw a man who was looking at the software, and I asked, "May I help you?" "I was looking at XP, but what's the difference between "upgrade" and "full"?" "If your computer already has Windows on it, you can use the upgrade version. Do you already have Windows?" "No, I was given the computer and there is nothing on it." "Then you can only buy the full version." "But it's $100 more!" "I understand. Unfortunately, the upgrade version will not install on a machine that doesn't already have Windows." "But that's too much money." "Here is RedHat Linux. It has everything that is in the Windows XP box ($200), the MS Office box ($300), and has no need of the Antivirus packages (~$50). $39.99." I think he stopped breathing. He just looked at me. His face became red, his mouth opened once, then twice, then with great anger he reached up, grabbed the $200 WinXP full install box, and STORMED up to the cash register. This is one reason why I have no pity for consumers "harmed" by Microsoft. Understanding, sure, sympathy, yes, but no pity. |
| purplewizard Mar 02, 2007 7:23 AM EDT |
Bob_Robertson working vaguely backwards through your (some of?) points: 1/ the guy who turned red. My guess is he thought you were suggesting he couldn't afford $100. Additionally he perhaps didn't understand what you said and was too embarrassed to show his ignorance again. There could be a lot of reasons that don't relate to the actual products. I have frustrations because amongst whole hosts of people I know, even ones who see me using Linux, the concept just doesn't get through to them. Interestingly it's the older ones (60+) who are most open because they (I think) aren't booked down with "if it's free (or Free) it can't be worth much" or mind set of only Windows exists won't touch the strange unknown because they are all unknown, the older ones just accept it as doing what they need and that is enough. The stubborn don't even seem to budge when I point out how much they are paying. Yet they won't pay the price for designer clothes and routinely rip off CDs. I can't really fathom it except to suggest that the Microsoft marketing monopoly has so captured minds that it is an example of a near unsurmountable barrier to competition in the market. Such a thin being another thing covered and considered by (EU at least) competition law. I don't know where to start with you two examples because both are written from the phrasing of saying Microsoft sells so much of our when they don't sell anyone else's they sell their own product. Why either one of them would be wrong is because of the law. The reasoning behind the law (EU at least) is that competition is good and benefits the consumer. Any deliberate action to distort the market and harm the consumer is wrong. Having such dominance that you can act in almost total disregard for the consumers and using it to that end is an abuse of your dominant position. And because under these conditions there is no (at least for the regular user who expects their computer to be more like a toaster than a toaster kit meaning they can just chuck in the bread and get toast without having to assemble and then calibrate the thermostats to get the proper level of toasting) alternative, especially no alternative available to just buy in the near by PC World there is no competition. So if they push up their prices too much people just don't by a PC. As for the preferential pricing to OEMs and they compete in their markets. That is fine except it doesn't happen in the real world like that alone does it. The pricing and ties include things like you won't put other icons or media players on the desktop, if you sell any machines with no OS on we won't continue to let you have our product or the price will go up. And it is using this leverage to distort the market that is considered illegal. Where it is distinct from the insurance market is in fact the regulation. If every consumer OS was like an insurance policy and had to interact in the insurance and legal framework the common requirements and minimum functions would be defined by government and have to be compatible. As it is there is only one insurance company here and it says this is all we'll cover you for and clause 99x.01 says if take out insurance with any other party you invalidate this cover (or something like that). In a short final commet I suppose the reason the abuses are wrong is the law recognising the idea that the corporate world is there in actual fact for the benefit of the consumer and not the consumer being there to be farmed (fleeced) for profit to keep the minority of shareholders in ever greater standards of luxury. |
| Bob_Robertson Mar 02, 2007 10:00 AM EDT |
Ah, ok. I understand. You equate being "against the law" with being "wrong". From that standpoint, I do indeed understand what you mean. My differences with your position begin with my _not_ believing that something is "wrong" because it is "against the law". The man became furious because, I think, he wanted me to tell him how to get around the "upgrade" issue with Windows. When I didn't, he became angry, but he could not accuse me of any harm to him because of not "helping him break the rules". His anger was, I believe, at Microsoft for requiring him to spend an extra $100 for what he considered nothing. Sadly, Microsoft used no force. In the end he had no one to blame but himself. |
| dcparris Mar 02, 2007 2:20 PM EDT |
Bob_R: I agree with your point that law != right/wrong. In eons past, that might have been more accurate, but today it is simply a ToS for citizenship in a given geographical region. Right and wrong are rarely associated with the law. |
| purplewizard Mar 03, 2007 1:52 PM EDT |
Bob I disagree that your angry person wasn't the victim of force by Microsoft. Just because they don't beat him or threaten to with a baseball bat doesn't mean his position is not the result of Microsoft's actions. And surely we can all recognise that to each action there is a reaction. So if M$ actions were and are intended to bring about and maintain an illegal (and I would also consider wrongful) monopoly he was forced to do that if he wanted to achieve his aims. I'll be slightly broader and say he was forced not through there being no alternative but there being no realistic alternative for him. Which is the case as applies to the masses (as individuals). I chuck that as individuals on because it would take a mass movement to make any difference versus a monopoly as powerful as the Microsoft. |
| Bob_Robertson Mar 04, 2007 7:52 AM EDT |
Some people by Kleenex brand, sitting on a shelf right next to a generic tissue with no difference other than price. Yet, people buy the more expensive "brand name". Shall Kleenex, or any other "brand name" producer, be prosecuted for the fact that people choose to buy their more expensive product? Shall a sales outlet be prosecuted because they offer only one "brand name" of a product? Or, because the Kleenex company gives such a sales outlet special pricing to only carry Kleenex products, are they prosecutable for "monopoly" practices? Microsoft is not powerful, they merely have market share. When Microsoft acquires the power to compel someone to buy their product, then we can talk about power. |
| purplewizard Mar 04, 2007 9:45 AM EDT |
Kleenex do not have in affect absolute power over the tissue market. The comparison is meaningless. If the specific outlet carries only one product and in agreement with all other outlets in an area (in elimination of competition and therefore considered harm to the consumer through elimination of choice in the geographic area) then yes they should be prosecuted. As for the power of Microsoft to compel the purchase of their product. I can't tell if you are being awkward for the hell of it now or just stupid (for the hell of it) because I think plenty has been laid out to show (here we go one more time) that at least indirectly the monopolistic power used to control and maintain the market does in affect result in many people (at least wanting to do any work with computers) being compelled to buy from them. Or as I think I at least half commented on elsewhere do you require large men paid by Microsoft to be standing in stores beating the living daylights out of people who dare ask for something they don't profit from. What do you define as compel? |
| Bob_Robertson Mar 04, 2007 11:48 AM EDT |
"he was forced not through there being no alternative but there being no realistic alternative for him." No, I showed him an alternative. He _chose_ not to use it. Shall I prosecute the Catholic church because, being a Muslim, I think think they are "forcing" their adherents to do things that are getting them sent to hell? No matter how wrong I think his choice was, it was his choice. The only thing I could have done to prevent his buying Windows would be to use force myself against him. "Kleenex do not have in affect absolute power over the tissue market." And neither does Microsoft. We wouldn't be having this discussion if they did. "What do you define as compel?" Force and fraud. Coercion. I looked it up. Go get a bunch of guys together, choose up teams, and charge a nickel a head to people to come and see you play baseball. Oh, that's right, that's _illegal_, because Major League Baseball has a _MONOPOLY_ on baseball. It means that if you try to do something like "arena baseball", "eXtreme baseball", "Canadian League baseball", whatever, they can put you in jail. (my examples are deliberate to point out that Major League Football has no such monopoly) What Microsoft has a "monopoly" on is the sale of _Microsoft_ products. They cannot prevent you from using, selling, buying or writing, anything else. Even if what you buy/sell/use/write directly and specifically competes with Microsoft products, they cannot do _anything_ about it. So long as it's not a Microsoft product, they cannot compel you to do anything. They are not the IRS, they cannot compel you to pay for something you don't use. They cannot compel anyone, by any definition of the word compel. They cannot prevent competition, they cannot punish you. ..._Yet_. But their lobbyists in Washington and elsewhere are doing their best to _gain_ that power, and don't look to government to solve a problems that are specifically created by government. I agree that their OEM channel is a bunch of whipped currs, and that some people demonstrate an addiction to Microsoft products that I have only otherwise seen with people's addictions to government and religion. But just as I am not going to prosecute Billy Graham for having a "monopoly" on his books, because he cannot compel me to read them or listen to or attend his shows, neither am I going to prosecute Microsoft and Gates for a _fantastic_ job of marketing and sales. To do so would be to give in to jealousy and envy. That is all I see in the persecution of Microsoft. The only thing Microsoft has done for which they sorely deserve a nasty whipping is their actions about refunds. Deliberate, systematic fraud on their part to make refunds virtually impossible for people to get. I'm not being awkward or evasive. What I am doing is using the word "compel" correctly. co·erce Pronunciation: kō-ˈərs Function: transitive verb Inflected Form(s): co·erced; co·erc·ing Etymology: Middle English cohercen, from Anglo-French *cohercer Latin coercēre, from co- + arcēre to shut up, enclose Date: 15th century 1 : to restrain or dominate by force 2 : to compel to an act or choice 3 : to achieve by force or threat synonyms see force |
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