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Microsoft fined by myopic EU

The most expensive line of code ever?

Photograph: Getty Images

Microsoft has been charged €561m for breaching an EU order requiring the company to offer every new user of a Windows PC a choice about which web browser they use. The Guardian's Charles Arthur reports:

The error arose when Microsoft's own programmers forgot to include a single line of code that would have automatically triggered the "browser choice" program on versions of Windows 7 running its first major update, called Service Pack 1 (SP1).

A source close to Microsoft explained: "It was a single line in the code that triggered the browser choice program. It had a list of versions of Windows to test against: if the version was found in that list, the program would run. They didn't include Service Pack 1, which is effectively a different version of Windows, in that list. And so the program didn't run."

From a rule-of-law point of view, the EU had no option but to charge Microsoft for the breach. It had mandated the company to provide an option; the company had failed to comply with that order.

But the order itself is desperately out of date. It goes back to the fact that Microsoft abused its monopoly over desktop PCs in the late 1990s to ensure Internet Explorer became the dominant web browser, beating the then-leader Netscape Navigator. It was a classic anti-competitive move, and the American Department of Justice accordingly took Microsoft to court, settling in 2001.

But by the time the EU took similar action, in 2009, the computing landscape was completely different. Browsers were no longer just optional extras; they were integral to shipping a PC which worked out of the box at all. The EU could not realistically require the company to ship a version of Windows without any browser, as it had done in 2001 when similar action was brought over the company's bundling of Windows Media Player. And so it required the company to offer users a choice of browser on the first boot-up of Windows 7, instead.

The arbitrary distinction between what does, and doesn't, count as legitimate for Microsoft to bundle in to Windows 7 renders the whole case nonsensical. The company also bundles a calculator, basic text editor, online gaming service and several card games in with the OS, but faces no pressure to strip them out. Meanwhile, Apple, despite having as great a lead in the tablet market (depending on whether e-readers are defined as tablets) as Microsoft does for desktop PCs, faces no legal pressure to offer users a choice as to whether Safari is the default browser for iPads.

There are still ways Microsoft could abuse its monopoly. Requiring any hardware vendor which wants to make PCs and phones to exclusively use Windows on both, for instance, would be pretty clear-cut. But it's getting harder and harder to think of software which it would be unacceptable for Microsoft to bundle with its OSs. As with its misguided war on cookies, the EU is showing its blindness about technological issues.