NEWS & ANALYSIS

EU Commission initiates formal investigations against IBM in two cases of suspected abuse of dominant market position

by Directorate General for Competition of the European Commission

(26 July, 2010)

The European Commission has decided to initiate formal antitrust investigations against IBM Corporation in two separate cases of alleged infringements of EU antitrust rules related to the abuse of a dominant market position (Article 102 TFEU). Both cases are related to IBM's conduct on the market for mainframe computers. The first case follows complaints by emulator software vendors T3 and Turbo Hercules, and focuses on IBM's alleged tying of mainframe hardware to its mainframe operating system. The second is an investigation begun on the Commission's own initiative of IBM's alleged discriminatory behaviour towards competing suppliers of mainframe maintenance services.

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Thursday
Oct022008

Standards, open standards and double standards

 

By Jeff Gould, CEO & Director of Research,
Peerstone Research

A recent article of mine has ruffled some feathers in the IBM world, and I would like to take this opportunity to set the record straight. In the piece in question I took Big Blue to task for its announcement that it intends to wage war against Microsoft in the world’s standards bodies. The motivation for this bellicose declaration was IBM’s stinging defeat last Spring in its battle to prevent the International Organization for Standardization (ISO) from ratifying Microsoft’s de facto office document standard (OOXML). IBM and its supporters are furious because the ISO had already ratified their own preferred standard, ODF (the XML file format associated with OpenOffice). The fact that they now have to share the coveted ISO label with Microsoft sticks in their craw.

Let me be clear. I’m not a fan of Microsoft Office, and I really don’t care much one way or the other about OOXML. But I am not impressed with OpenOffice as an alternative to Office. And I am really not impressed with IBM’s attempt to ram the little-used ODF down our throats. The proponents of OpenOffice have conspicuously failed to make this unimaginative clone of Office a success in the marketplace. So they took it to the ISO and got its format declared a standard, a fact which they expected to use to browbeat certain – um, shall we say, “easily influenced” – customers into picking OpenOffice. Everybody knows that the biggest users of OpenOffice are European governments (see the deployment numbers on the OpenOffice wiki), and most of us know that these governments are rarely unhappy to see successful American companies stub their toes.

IBM charges that Microsoft won at the ISO only because it packed the national standards organizations that make up the ISO membership with its pals. The suits in Armonk are shocked (shocked!) to discover that Microsoft actually tried to influence the outcome of a debate where its vital interests were at stake, namely its ability to sell Office to the world’s governments. I don’t doubt that there is considerable truth to IBM’s claim that Microsoft played hardball. But the examples it holds up (a rogue Microsoft employee in Sweden asking partners to vote for OOXML, “committee stuffing” in Switzerland, a mailing campaign in favor of OOXML in India) amount to pretty thin gruel. I mean, people, get serious. We aren’t talking about Franklin Delano Roosevelt’s attempt to pack the U.S. Supreme Court here. Strenuously lobbying for one’s interests is a normal part of the rough and tumble business of setting international standards. I’m pretty sure that IBM has lots of friends in the world’s standards bodies too, probably a lot more than Microsoft. Hmm, wouldn’t it be interesting for someone to throw a little light on that?

But the thing that galls me about IBM’s position – and the reason I wrote my post – is not its goody-two-shoes stance about lobbying. No, it’s the flagrant hypocrisy behind this whole open standards campaign. In a nutshell, Big Blue conspicuously fails to practice what it preaches. On the one hand, its open standards guy Bob Sutor piously affirms that he wants nothing more than to promote standards which will “ensure that each of us can easily purchase and interchangeably use computing technology from multiple vendors”. This is what they say when they are talking about a market where they are losing, such as office software. On the other hand, when it comes to a market where they are winning, such as the mainframe, it’s a different story. Here IBM uses threats, lawsuits and buyouts to shut down tiny competitors who want nothing more than to pay for the right to run Big Blue’s dominant z/OS mainframe operating system on non-IBM hardware. What part of “easily purchase and interchangeably use technology from multiple vendors” do IBM’s mainframe lawyer hounds not understand?

Once upon a time, say around two years ago, IBM had the following noble declaration on its web site:

"IBM has an open approach to patent licensing for products in the Information Technology (IT) field and is generally willing to grant nonexclusive licenses under reasonable and nondiscriminatory terms and conditions to those who in turn respect IBM's intellectual property (IP) rights."

Well, that page is gone now (though the WayBack Machine has preserved its memory). In its place, in the far less public venue of its court filings against its former competitor Platform Solutions Inc. (now a wholly owned subsidiary of – heh, heh – a certain large computer company based in Armonk, NY), Big Blue sings a very different tune about openness:

"IBM has refused to agree to license its patents to PSI and its copyrighted operating systems and other software for use on PSI's emulator systems despite PSI's demands because, among other reasons, IBM has no obligation to do so..."

As a free marketer my response to this is “fair enough.” Everyone has the right to play hardball with their own proprietary technology, as long as they don’t care about bothersome little details like their reputation for openness. I fully understand and accept that business is based on greed. What I don’t understand is how IBM can talk from both sides of its mouth and expect no one to notice. I mean, either you’re for openness or you’re against it.

For the record, I think that both z/OS and Windows should be open sourced by their respective owners. I’m not saying they should do it under the GPL. That would no doubt be asking too much. It’s only natural that these companies should want to preserve and expand the huge business empires they have built around what are two of the most useful and valuable pieces of intellectual property of all time. But the example of Sun and Solaris shows that they may have less to fear than they think. There is life for big ticket proprietary software after going open source.

Of course I’m not holding my breath while IBM and Microsoft make up their minds about open sourcing their crown jewels. But I do think we can demand a certain minimum amount of fair dealing from both sides. I’ve written elsewhere about my beefs against the new interface in Microsoft Office 2007 (in short, I hate it). But I can’t see what’s bad about the ISO’s ratification of the Office 2007 file format. After all, the standardization process has obliged Microsoft to dump its old policy of keeping file formats secret. It has exposed OOXML to intense public scrutiny and, in the opinion of at least some open source advocates, resulted in real improvements to a standard made extremely complex by the requirement to accommodate billions of legacy Office documents. While it would probably be prohibitively expensive (read: unprofitable) for a competing vendor to build a full-scale office suite around OOXML, Microsoft has at least put the format out in the open for all to see, and offered a grudging but seemingly far-reaching promise not to sue people who try to implement it.

Of course the IBM camp complains that this promise is ambiguous because, well, some developers may not be intelligent enough to understand the inevitably convoluted legal language of Microsoft’s promise. Since I’m not a lawyer, I wouldn’t claim to understand it myself. But I do know this. If IBM wants to show that it really cares about openness, it should extend the same “promise not to sue” to customers who want to run bought-and-paid-for copies of z/OS on alternative mainframe platforms offered by T3 Technologies, Fundamental Software and the open source Hercules emulator, those micro competitors who surely do not represent a threat – mortal or otherwise – to IBM’s vast mainframe money-spinner. If it does that, I promise I’ll write an open letter to Steve Ballmer urging him to port Office and SQL Server to Linux.

Reader Comments (2)

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September 2, 2009 | Unregistered CommenterSpeterroure

The problems with OOXML are manifold. It is long, imprecise, incomplete, unimplemented and useless. That's right even the most recent version of Microsoft Office does not conform to OOXML. It is useless because it permits proprietary extensions making it impossible (not just economically but practically) for anyone but Microsoft to create a fully compatible suite. The motivation behind OOXML was to allow Microsoft Office to qualify for government procurement. Microsoft may be entitled to play hardball but OOXML has no business being an ISO standard. Big Blue may be bad but two wrongs don't make a right.

December 13, 2009 | Unregistered CommenterGordon Garmaise
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