[Linux-aus] Stand up for Linux. Stop Microsoft killing Desktop Linux.

[Ben McGinnes]

On 23/09/11 8:50 PM, Luke Martinez wrote:
>
> Yes, this message is as bleak as it sounds. I appoligise if you have
> already seen a similar message. We need to act!

I have, but considering where this could go wider discussion is
important.

> Put simply, Microsoft as part of their OEM system require all new
> computers shipping with windows 8 to use secure signing keys to
> prevent 'unauthorized software' from running on the computer. This
> will prevent all free software operating systems from running on the
> computers that come with OEM by default.

You've already posted the ACCC complaint form, which is good, but it
is probably worth considering the specific aspects of the Competition
and Consumer Act 2010 (the Act) which are relevant here.  This is a
variation on information I've already posted to the LUV mailing list,
so my apologies to those who've already seen it there.

The relevant sections of the Act which appear to, or may appear to,
apply to this issue are sections 45, 46 and 47.  All of which fall
under the anti-competitive conduct part (Part IV) of the Act.  A
summary is here:

http://www.accc.gov.au/content/index.phtml/itemId/816373

Section 45 is the anti-competitive agreements section and any
arrangement between Microsoft and a hardware vendor to effectively
lock out any non-Microsoft operating system could possibly be
interpreted as a breach of this section.

http://www.accc.gov.au/content/index.phtml/itemId/816379
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s45.html

Section 46 is the misuse of market power section which deals with
using market power to achieve an illegal result.  It's very easy to
show that Microsoft fits the definitions of Section 46 as having
substantial market power in the PC/desktop/laptop market.  The key
issues here will be whether they have taken advantage of their market
power; with the examples on the ACCC website it appears that Microsoft
will qualify on at least a couple of points and probably more.  Then
there's the illegal purpose, the definitions are: eliminating or
substantially damaging a competitor; preventing the entry of a person
into that or any other market; and deterring or preventing a person
from engaging in competitive conduct in any market.  I think that this
particular action would qualify for all three of those, furthermore
previous case law has established that the illegal purpose need not be
the only purpose or even the primary purpose.

http://www.accc.gov.au/content/index.phtml/itemId/816380
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s46.html

Section 47 is the exclusive dealing and third line forcing section and
is the section which most people will be thinking of in regards to
this type of activity.  Section 47 was the section which was cited (in
regards to the previous Trade Practices Act, which the current Act
supercedes) in relation to DVD regioning.  It is the most likely
section under which this type of vendor lock-in will be cited by
people as being a potential breach.  While this is the case, the
previous sections should not be overlooked.

http://www.accc.gov.au/content/index.phtml/itemId/816377
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s47.html

I suspect Microsoft may be able to step around this in Australia if it
is made clear at the point of sale that Windows 8 logo systems can
only be used with Windows and if the hardware vendors supply
equivalent systems which are not restricted in this manner.  If this
UEFI issue is addressed by not restricting firmware to Microsoft's
certificates *and* every hardware vendor which agrees to Microsoft's
UEFI policy provides a method for either disabling it and/or allowing
additional certificates to be added, then that would probably address
the issues covered by Part IV of the Act.

For the record, I'm not a lawyer, but I have a relative who works at
the ACCC and we've discussed aspects of this part of the Act in the
past (in relation to DVD regioning and a few other anti-competitive
cases).  I've also spent a lot of time debating lawyers and I know the
way they think.  ;)

I agree that lodging complaints/concerns with the ACCC is an important
step.  It might also be worthwhile writing to Microsoft Australia and
asking why they believe that locking other operating systems out of
the market is not a breach of Part IV of the Act.  If that route is
taken then perhaps discussing it with local Linux vendors (e.g. Red
Hat Australia) might be of some benefit.


Regards,
Ben

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