proposal for a legal (antitrust) regulation
Version 1.2/2.3, 29.07.2008
current situation – the problem
problem awareness
secondary aims, positive secondary effects, further concerned persons
execution, possible problems
By taking the pressure of compatibility requirements off the users (by avoiding the creation of documents in critical formats) it should be possible to prevent a market dominance from recreating itself again and again with new versions.
A software manufacturer sells its software which both has a big market share and is sold in (absolutely) high volume.
One day this company begins to sell a new version of its software. This one can read and write the documents of its predecessor but has its own document format (this does not happen with every but with many new versions). By default (when the user does not explicitly act - this is very important!) the new software creates new documents in its new format. When storing data in an old format (this is important, too) a rather silly (but for the developers easy to implement) warning comes up which tells the user that his document maybe cannot be completely stored in the old format. This does not only disturb the user but reduces his motivation to keep using the old format. This behaviour is above all egregious because the software does know whether any information would be lost or not (this knowledge is - at least implicitly - contained in the export filter).
In fact the users do not suddenly create other documents than before at least not in large amounts. Thus there is no need for most documents which are created by the new version of the software to be stored in the new format. "Need" means that no information is lost which is important to the user. The vast majority of documents (98%? depending on the individual user, of course) is unnecessarily created in the new format. But the increasing presence of documents in the new format creates a big pressure on most market actors to buy the new version of the software. Without any good reason (like the quality, features or price) but only because they and their business partners (mainly their customers) are victims of this behaviour of the software. Thus a distortion of the market is existent as no longer quality and price are the relevant aspects but only directedly created technical barriers.
This has been the well known situation for a long time. The generically wording is purposeful as this problem occurs in many areas of software, not only with office software (where it is most obvious and has the biggest economic impact).
Due to frequent misunderstandings it should be noticed that the problem is not the technical progress which does require new document formats from time to time. Nobody shall be prevented from developing or using new formats. The aim of this proposal is solely to reduce the useless, abusive use of new formats.
This problem leads to a distortion of the market in at least two aspects:
A new product is bought though the buyer wouldn't have done that without this problem at that time (neither the new software nor a competitor's product) because he is still satisfied by the product performance.
Competitive products are in a bad position. They do not only have to compete in performance, quality and price with the market leader but they have to (in contrast to him) offer high quality import and export functions - and they have to do that soon after the new version of the market leading product is available.
The higher the pressure by documents in the new format is, the worse is the position of all competitive products.
This situation does not allow real competition. Especially in enterprises the market dominance in the office software category is the main reason why we cannot expect to see real competition at the operating system level in the near future. The market dominance is transferred from one area (office software) to others (operating systems, browsers).
This technical problem is obvious to everyone who ever received a document which he could not open.
On the other hand the users of new software versions are probably not very aware of the damage they do.
This proposal is often misunderstood in that way that this problem did not affect OSS. This is not correct. Also when using OSS it is annoying and sometimes expensive (not due to licences but the upgrade related work, necessary changes to other software, training of users) to upgrade software. Thus the impact to OSS users is clearly less but it is not zero.
The European Union or the national lawmakers shall prohibit the criticized behaviour.
The aim is to prevent unnecassary documents from being created in a new format. In the future new formats shall be used for such documents only which need them technically. This helps all market actors (except for the market leader which is going to lose some of its unjustified revenue and market share).
Enterprises and privat users shall buy a product only then if they are interested in its features and/or price but not because they need it for directedly created compatibility reasons.
This action would show the users of new software which problems they cause for others.
The EU forces all relevant software manufacturers by competiton/antitrust law to create their software so:
that it uses the format of its predecessor (or the format which was the "current" one three years ago) by default. This (the default format) could be made configurable perhaps with the new format as exception. Alternatively they may store the document in an open format (which can be read by at least one relevant competitive product).
The 3-years restriction prevents the software manufacturers from publishing several "new" versions within a short time in order to avoid this regulation.
that it tells the user concretely for that particular case if some (and which) parts of his document cannot be stored in the old format (perhaps by a list of affected features and/or with an accentuation of the affected areas in the document). For technical reasons it ist possible that this information/question (if the user wants to use the old format nonetheless) is shown every time when a document is saved (if a new feature is used after saving). This would not happen often though.
that it allows the user to configure (from the question/saving dialog) which kinds of information loss shall be ignored in the future. This option prevents the manufacturers from adding some automatically used but useless information which cannot be stored in the old format in order to annoy the user so much that he (if that is allowed) changes the default storage format to the new one.
that the information/question dialog offers the possibility to read the official statement of the lawmaker which explains the need to the interested user.
This can questionlessly be expected from the software manufacturers because it is easy to implement.
Of course, it is possible for the software manufacturer to highlight the new features (which require the new document format) with big effort (advertising, press, importunate "assistants" in the software) in order to make them create more documents with these features (i.e. in the new format). This is acceptable as this would be the wanted competition at the performance level and as the users would be reminded of the problem (hopefully thinking of the receipients of the document) each time they save a document for the first time.
A legal regulation has to be manufacturer neutral, of course. Thus it is possible that OSS is covered by such a law (especially if the law does not only affect the respective market leader but the three most used products). But the implementation of such a requirement would be easy for OSS developers, too. Probably much easier because they never tried to use document formats as a barrier and use open formats (nearly by definition).
obvious or raised objections:
The FSFE regards this proposal as not enforcable.
The antitrust law is aimed at protecting competition and competition required innovation. Innovation sometimes involves new document formats.
Manufacturers cannot be forced to support old formats "forever" because that would be noneconomical.
The proposal does not contain the name Microsoft but as a result this company is most affected by it. Such cases are always critical.
This proposal does not obstruct the development or use of new formats in any way. The proposal is not to use the new format when not necessary (objectively or by user decision).
The proposal does not demand to support old versions for a long time. Regarding today's typical life cycles of office software only the direct predecessor's format would have to be supported.
This argument is not good because it is common to support quite old formats, too. In this regard the proposal does not demand any change. The proposal refers to the usage of available possibilities.
This regulation would indeed mainly affect Microsoft but that is quite usual in antitrust law. How could the lawmaker override trusts and market distortions without mainly affection the one company which has caused the problem? Declining this effect means declining the antitrust law as a whole.
This proposal has not arisen from the motivation to "just do something against Microsoft". There is a real problem. That Microsoft is quite unpleasantly affected by the solution of this problem (which earned them billions of USD) cannot be counted for their benefit.
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