Charles Arthur: Europe brands Microsoft's Windows Media Player 'monopolistic'

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It's been a busy month for Brad Smith, the "general counsel" - you and I would say head lawyer - for Microsoft. A few weeks ago he announced a $5m bounty on the head of the writers of the Blaster and SoBig worms. Last week he met the European Commission's antitrust group, trying to persuade them that there was no reason to rule the inclusion of Windows Media Player in Windows as monopolistic, and that to force Microsoft to remove it would result in an inferior product - an operating system without a media player built in.

Mario Monti, whose team built the case for the Commission, complains that Microsoft's inclusion of Media Player - which he reckons is a "separate application" - will tend to force out rivals such as Real Networks' RealPlayer and Apple's Quicktime. The Commission's own corporate survey suggests that once people have Media Player on their desktop, content-producing companies won't spend the money to make their content available in other forms. It noted that Microsoft's market share had jumped remarkably since 1999, when it began bundling a version with Windows. Microsoft's response? It's not a statistically valid survey, and of course companies can afford to offer content in other formats.

You've heard this argument before, involving Internet Explorer, Netscape and the US Department of Justice. Of course computer makers could put Netscape on their PCs if they wanted to; but Explorer was irrevocably embedded in the operating system, so please don't expect it to go away.

The Commission is also alleging that Microsoft improperly withholds data about interfaces to its small-scale servers, distorting competition in that market. If it finds Microsoft guilty, the fines could run into billions of euros, and Microsoft would be forced to unbundle Media Player and open up its interfaces. And you can bet the lawyers, including Brad Smith, would fight the judgment for years, as they did in the Explorer-Netscape battle.

Here's where the software engineer's view and the lawyer's view diverge. The engineer thinks: you should set up a situation where the best stuff wins. The lawyer says: we'll do whatever we're allowed to, and fight for our interpretation of "allowed" all the way through the courts.

Interestingly for a company founded by a software man, Microsoft follows the lawyer's path; but that's because it's also the quickest way to dominance. And Microsoft's argument about Media Player has merit. These days any operating system that is unable to play MP3s and other media files would seem hobbled.

But you can play media without having a player; it is (comparatively) easy to build such functionality in at a low level of the operating system. If you then make that available to outside developers, you encourage consumer choice. What has to happen, though, is that the application programming interfaces (APIs) - the "hooks" in the operating system that programs use to do functions such as play songs - have to be well-documented for all to see.

Microsoft, however, prefers to pick and choose which it declares. Root around in Microsoft's own web pages, and eventually you'll find a page ( which notes that as a result of the US antitrust trial, "Microsoft teams identified a few hundred undocumented Windows interfaces or parameters that were used by one or more of the Microsoft Middleware components". They were told to document them for everyone else. And guess what's up there near the top? Scads of previously secret APIs for Windows Media.

The trouble with Microsoft is that it wants it both ways. It wants to write the operating system, and does that tolerably well (though Smith's bonanza offers indicate room for improvement). It also wants to write key applications in emerging, competitive markets. It favours the latter by using the former to shut out rivals.

Although computer makers could in theory add whatever media player they like before machines are shipped, the reality is that it's cheaper and quicker for them not to bother, and say that those who want alternative players can download them. The Netscape example showed that that just doesn't happen. Which isn't good for competition, or choice. Or indeed standards.

And the same question that applied in the US antitrust trial applies here. If Windows Media Player is so essential and in-built, why is it that one can download it as a separate product for a variety of operating systems, including Apple's? The versions are right there on the Microsoft Download site. I'd love to hear Smith's response to that.