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

Russell Stuart russell-linuxaus at stuart.id.au
Tue Sep 27 11:21:32 EST 2011

On Sun, 2011-09-25 at 15:21 +1000, Ben McGinnes wrote: 
> 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.

Luke's email prompted me to file a complaint with the ACCC.  I got a
response which made it obvious they had read it, but it was a
non-committal.  It contains phrases like:

  - "The situation you described may raise issues of exclusive dealing"

  - "It it is unclear from the details provided whether it would be
    likely to meet the competition test"

  - "It is important to note that the ACCC cannot pursue all the
    complaints it receives."

Maybe receiving a few more complaints on the same issue will address the
last point,  spurring them onto looking into it further.  If you do send
a complaint, you could possibly have less "setting the scene" waffle
than I did and instead devote more of the 1500 characters they give you
to making it plain why it is indeed a breach of the exclusive dealing
provisions, thus addressing the 2nd point above.

Here is the entire response to the complaint I lodged.  It contains my
original complaint at the end:

-------- Forwarded Message --------
From: Infocentre Public Mailbox <info.centre at accc.gov.au>
To: russell+accc at stuart.id.au
Subject: ACCC response [SEC=UNCLASSIFIED]
Date: Tue, 27 Sep 2011 10:46:41 +1000

Dear Mr Stuart,

Thank you for your email of 26 September 2011 to the Australian
Competition & Consumer Commission (the ACCC) regarding Microsoft’s
upcoming Windows 8 operating system. Your reference number for this
matter is 1153720. 

The role of the ACCC is to ensure compliance with the Competition and
Consumer Act 2010 (Cth) (the Act), which is designed to encourage fair
trading and discourage anti-competitive conduct through a specific set
of competition and consumer protection rules. 

One of the Act’s aims is to foster fair markets, that is, markets where
normal competition can continue without being hindered by unfair and
illegal market practices. Such illegal market practices include
price-fixing, market-sharing, resale price maintenance, misuse of market
power and certain forms of exclusive dealings/boycotts.

Section 47 of the Act prohibits exclusive dealing. Broadly speaking,
exclusive dealing occurs when one person trading with another imposes
some restrictions on the other’s freedom to choose with whom, in what,
or where they deal. Exclusive dealing is only a breach of the Act where
the conduct has the purpose, effect or likely effect of substantially
lessening competition in the market. In an assessment of the effect of
the conduct on competition, it is not enough merely to show that an
individual business has been damaged. The wider market for the
particular product or service must be considered. 

The situation you described may raise issues of exclusive dealing, but
it is unclear from the details provided whether it would be likely to
meet the competition test described. 

In assessing any complaint, staff of the ACCC would generally determine
whether or not the matter falls within the jurisdiction of the Act,
whether or not there appears to have been a breach of the Act, and if
so, whether the impact of the conduct is so serious and widespread that
it is appropriate that the ACCC should take some action. 

It should first be noted that in general, investigations are conducted
confidentially and the ACCC does not comment on matters it may be
investigating. Further, complainants will only be contacted by the ACCC
where clarification or additional information is sought. 

It is important to note that the ACCC cannot pursue all the complaints
it receives. While all complaints are carefully considered, the ACCC
must exercise its discretion to direct resources to the investigation
and resolution of matters that provide the greatest overall benefit for
consumers and businesses. The ACCC’s Compliance and Enforcement policy
describes in more detail how this discretion is exercised. This policy,
which is available on the ACCC’s website [www.accc.gov.au], lists a
number of factors that are weighed including whether conduct raises
national or international issues, involves significant consumer
detriment or a blatant disregard of the law. 

The Act also allows an affected party to take their own legal action for
a breach of the Act. You may wish to seek legal advice on the
possibility of taking your own action in this circumstance. 

Thank you for contacting the ACCC with your concerns. I trust this
information is of use. 

Yours sincerely, 

ACCC Infocentre

Ph: 1300 302 502

From:russell+accc at stuart.id.au [mailto:russell+accc at stuart.id.au] 
Sent: Monday, 26 September 2011 12:18 PM
To: Infocentre Public Mailbox
Subject: Complaint form submission [SEC=UNCLASSIFIED]

Complainant details

<snip content="personal details"/>

Date received: 26th September 2011

Product provider: Microsoft
Product description: Microsoft Windows 8

With the release of Windows 8, Microsoft has said http://j.mp/oczbjM
hardware vendors wanting to use the "Compatible with Windows 8" logo
must turn on secure booting in their BIOS's, and must ship with
Microsoft's keys. As Windows commands over 85% of the desktop
marketplace http://j.mp/oPEFS it seems likely all will seek to comply.
Secure boot ensures only operating systems digitally signed by a
manufacturer with keys known to PC's BIOS will be allowed to boot. A
good reason for doing this to prevent viruses from altering the boot
sequence; something that has happened in the recent past and is very
difficult to detect. If the full secure boot specification is
implemented in full this would not be a problem, as the fully
specification insists owners of the PC are in control of the keys in the
BIOS. However UEFI specification is large and complex, meaning it will
take time and money to implement it. To cut costs and speed time to
market some manufacturers will do the bare minimum Microsoft insists on,
which happens to mean the PC will only run Microsoft products. Microsoft
could have achieved the additional security without undermining
competition in the market place by insisting on the full implementation
of the UEFI secure boot specification in order to qualify for the
Windows 8 logo. I believe it is in the best interests of Australian
consumers the that ACCC seek to enforce this.

Additional information
IMPORTANT: This email from the Australian Competition and Consumer
Commission (ACCC), and any attachments to it, contains information that
is confidential and may also be the subject of legal, professional or
other privilege.  If you are not the intended recipient, you must not
review, copy, disseminate, disclose to others or take action in reliance
on, any material contained within this email.  If you have received this
email in error, please let the ACCC know by reply email to the sender
informing them of the mistake and delete all copies from your computer
system. For the purposes of the Spam Act 2003, this email is authorised
by the ACCC www.accc.gov.au

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