It's a good thing legal action is Mozilla's "last resort" for resolving its disagreement with Microsoft over bringing Firefox to the upcoming Windows RT, because it's likely a difficult antitrust case to make.
That's because Windows RT, the version of the operating system geared for devices using ARM processors, is a different beast than conventional Windows running on traditional x86 processors. Microsoft's present rules would hobble non-IE browsers on Windows RT, but the company's market power is with Windows on x86 chips.
ARM chips dominate today's smartphone and tablet devices running Apple's iOS, Google's Android, and Microsoft's Windows Phone 7.x, but they're very much unproven when it comes to running the version of Windows for PCs.
"To bring a monopoly claim, not only would you have to show that Microsoft does have power, but also that it's foreclosing a significant portion of the market," said Joel Grosberg, an attorney at McDermott Will & Emery who previously was an antitrust lawyer with the U.S. Federal Trade Commission. "If Mozilla is still able to sell to 80 percent of desktop market, it seems like a tough antitrust case."
Mozilla argues that Windows RT is just Windows -- the latest in a long line of Microsoft operating systems for PCs with a graphical interface. But in practice, it really is different -- indeed, it's conceivable that customers will shun it because they don't want software hobbled by the same constraints Mozilla finds so chafing.
The non-profit organization, whose mission is to keep the Web open, said it's relying on non-legal pressure for now. Given that an antitrust suit wouldn't be easy, swift, or certain, perhaps it's wise to see if publicity gets the desired results -- especially if Mozilla can rally to its own cause the developers that Microsoft values so much.
There's another big difference from the 1990s: Apple. Its ARM-based iPad dominates the tablet market, with strong sales, an established App Store, and countless developers writing software for it. For tablets, Windows has yet to achieve even Android's underdog status.
"If you're on a different processor system, it seems Windows' dominance in this realm is far from assured," said Parker Erkmann, who handles antitrust cases at law firm Dow Lohnes and previously worked at the U.S. Justice Department's Antitrust Division.
And given Microsoft's stance that its approach makes for a better Windows RT customer experience, "there's an argument to be made that Microsoft offering an improved offering in mobile is pro-competitive."
That doesn't mean Microsoft needn't worry. A Senate antitrust committee is looking into the Windows RT restrictions, for example. Senate Judiciary Committee staff will scrutinize the situation, according to an aide for Herb Kohl, a Democrat from Wisconsin who's chairman of its antitrust subcommittee.
The Justice Department declined to comment for this story, and the European Commission's competitiveness office didn't respond to requests for comment. Microsoft didn't comment.
"If I were Mozilla and had a real concern, I would raise a complaint to the DOJ to see if you can get them interested," Grosberg said "It's sort of a low-cost, low-risk option."
The new rules of Windows RT
Microsoft is taking a very different approach to programming when it comes to Windows RT.
With conventional Windows, including the upcoming Windows 8, Microsoft gives all software access to lower-level application programming interfaces, or APIs. But with Windows RT, it gives those privileges only to its own software.
Conventional Windows permits two flavors of software: "classic" apps that use the Win32 API and new "Metro-style" apps that use the new WinRT API for the new Metro interface. Windows RT, though, permits third-party software to use only the WinRT API. Only Microsoft's own software, such as Office and IE, get to use Win32 on Windows RT.
Without the low-level APIs, other browsers such as Mozilla's Firefox or Google's Chrome wouldn't be able to run modern Web tasks, making them terminally uncompetitive in the eyes of Mozilla and Google.
Microsoft is evidently aware of the subtleties involved, because it did make changes to Windows 8 to be more accommodating to browsers. On Windows 8, classic apps get access to Win32 and Metro apps get access to WinRT -- but Microsoft created a third category specifically for browsers. A non-Microsoft browser, if set as the default browser, can tap into Win32 APIs even if it's a Metro app.
Despite Mozilla's requests, though, Microsoft has declined to grant such privileges to non-Microsoft browsers on Windows RT,.
Microsoft isn't restricting other apps just to thwart rivals, at least according to its own developer advice. In a 8,663-word blog post in February, Windows chief Steven Sinofsky detailed Microsoft's reasons for barring programmers from moving their Win32-based x86 software to Windows RT, then called Windows on ARM (WOA):
If we enabled the broad porting of existing code we would fail to deliver on our commitment to longer battery life, predictable performance, and especially a reliable experience over time. The conventions used by today's Windows apps do not necessarily provide this, whether it is background processes, polling loops, timers, system hooks, startup programs, registry changes, kernel mode code, admin rights, unsigned drivers, add-ins, or a host of other common techniques. By avoiding these constructs, WOA can deliver on a new level of customer satisfaction: your WOA PC will continue to perform well over time as apps are isolated from the system and each other, and you will remain in control of what additional software is running on your behalf, all while letting the capabilities of diverse hardware shine through.
Those technical considerations also make Mozilla's case harder, Grosberg said. "If they're able to distinguish technically why they're taking this step, and they can show it's a legitimate basis, that would weaken an antitrust claim even more," he said. "If they really have a legitimate business justification, the court will give a lot of deference to that."
Another factor that would help Microsoft's defense is the fact that usage of Internet Explorer itself has declined markedly in recent years thanks to the popularity of Firefox, Chrome, and Safari, Grosberg added.
Platforms and markets
To industry veterans, the situation recalls the hardball tactics that got Microsoft in trouble with antitrust authorities in the 1990s. Then, the U.S. Justice Department charged Microsoft with abusing its monopoly position in the operating system market to promote IE at the expense of rival Netscape. The Netscape Navigator browser indeed failed in the marketplace, but years later was reborn as the Firefox browser.
When it comes to proving abuse of monopoly power, an important question is determining the market in which a monopolist has power -- the relevant market, in antitrust legal terms.
In the DOJ case, U.S. District Judge Thomas Penfield Jackson's findings of fact concluded Microsoft had a monopoly in the market for "Intel-compatible PC operating systems."
Windows on ARM doesn't run on x86 chips, so by Jackson's standards, Windows RT hasn't been judged to be part of Microsoft's monopoly.
However, things aren't quite so simple, because Microsoft's Metro interface lowers the barriers that ordinarily make it difficult to bring programs designed to run on one processor family to another family.
"Metro-style apps in the Windows Store can support both WOA [i.e., Windows RT] and Windows 8 on x86/64," Sinofsky said in the same blog post, and developers can use Microsoft's Visual Studio 11 programming tools to create those apps. It's not quite the "write once, run anywhere" promise of Java, but it's one step removed.
Metro is Microsoft's new, heavily promoted, touch-compatible interface that forsakes the start menu and taskbar in favor of a grid of application tiles. It's the centerpiece of Microsoft's effort to blur the boundaries between today's conventional PCs, driven by mice and keyboards, and tablets, driven by touch actions.
Apple disparages the convergence of PCs and tablets, but it's the heart of Microsoft's strategy. It gives the company a way to counter the remarkable success of the iPad by taking advantage of its gargantuan installed base. Microsoft envisions tablets that easily transform into traditional PCs by plugging in keyboards and mice; it's why Microsoft's Office 15 is built into Windows RT.
ARM devices, with their low-power processors, can be expected to occupy the segment that most resembles today's tablets, and x86 machines can be expected to resemble today's laptops and desktops. But there will be a gray area. Intel x86-based tablets are expected in November, for example.
Regardless of how well the two processor families fare in the marketplace, it's clear that Metro is Microsoft's priority. "Metro will drive the new magic across all of our user experiences," Chief Executive Ballmer said in January. "So, in 2012 what's next? Metro, Metro, Metro."
Mozilla isn't just playing semantic games when it says Windows RT is just another version of Windows. Metro joins Windows and Windows RT at the hip.
But that's not the same thing as having a high-profile judicial ruling easily at hand.
"The definition of a relevant market is highly fact-specific and evolving. I don't think you can look backward at a case that's 14 years old and say those factual conclusions are going to apply this time," Erkmann said. "You'd have to start all over again to determine whether Microsoft has a degree of market power."