All Things Digital

Can a search-advertising alliance between Yahoo and Google possibly pass regulatory muster? We may soon find out.

Now that investor-tormentor Carl Icahn has filed a proxy slate to unseat Yahoo’s board with the intent, one way or another, to push the company back into merger negotiations with Microsoft (MSFT), an obviously panicked Yahoo (YHOO) is scrambling to pull together a search-ad deal with Google (GOOG).

The possibility of a search-ad outsourcing arrangement between the two companies was, in part, what caused Microsoft to lose its appetite for Yahoo. Could it cause Icahn to lose his as well? Seems doubtful. Even if, as sources close to the situation tell the New York Post, the deal is the sort of open-to-all-comers arrangement Yahoo and Google hope would pass regulatory scrutiny. Under its terms, a real-time auction system would be used to select the most lucrative ads for a given search query from among those sold by Yahoo, Google or anyone else that cares to participate. Structured in this way, the deal might not, as Microsoft has claimed in the past, consolidate over 90% of the search-advertising market in Google’s hands and draw the ire of antitrust regulators.

Instead it might consolidate, oh say … 89.99% in the search sovereign’s hands. Said Kevin Lee, chairman of search engine marketing firm Did-It, “Given the way the ecosystem is put together now, Google would probably be the winner in a vast majority of cases.”

Microsoft (MSFT) is appealing the $1.38 billion fine given it by the European Commission for failing to comply with a landmark antitrust ruling in what it describes as a “constructive effort to seek clarity from the court.”

By “clarity,” Microsoft means an annulment of the EC’s February decision imposing the fine–the highest ever meted out in an antitrust case. But it’s not likely to get it. At least according to the EC. Said an EC spokesperson: “The commission is confident that its decision to impose the fine is legally sound.”

Translation: No. How’s that for “clarity”?

Microsoft (MSFT) and Yahoo (YHOO) have apparently taken some of their merger negotiations out of the press and into the boardroom. The two companies are said to be in “last-ditch” negotiations to reach a friendly deal, despite threats from the software giant this week that it would launch a hostile proxy bid or walk away from the deal entirely.

DealBook, citing a person involved in the talks, says Microsoft has upped its offer by several dollars a share and refers to the fresh talks as an “enormous breakthrough.” That said, the person also cautions that talks could still be postponed or collapse entirely.

Oh, one last thing: a deal is still not imminent. My God, what a fascinating new development.

Anyway, it seems Microsoft’s sweetened offer isn’t yet sweet enough for Yahoo, which worries that the merged companies would be forced to divest their email and instant-messaging assets by antitrust regulators. “We need a lot of reason to do the deal, because it could be very bumpy once we agree,” a Yahoo insider told BoomTown. “How damaged would Yahoo be if it did not go through or if important pieces of Yahoo had to be separated from the company?”

Yahoo’s exploratory advertising deal with Google has given it an alternative to Microsoft’s unsolicited takeover bid after all–the possibility of a federal antitrust investigation. The Justice Department is reportedly examining the companies’ dalliance amid concerns that it violates antitrust laws.

Which isn’t surprising at all, really. Together, Yahoo (YHOO) and Google (GOOG) control more than 80% of the U.S. search market. And as Microsoft (MSFT) general counsel Brad Smith will happily tell you, that’s anti-competitive. And he’d know, right?

Microsoft is serious about its newfound commitment to interoperability–serious enough to make Internet Explorer 8 Web standards-compliant out of the box.

In a complete reversal of earlier policy, the software giant has decided to make IE8 default to a standards-compliant mode of rendering Web pages that favors interoperability, rather than an IE7 rendering mode that favors Microsoft (MSFT). “Microsoft recently published a set of Interoperability Principles,” Internet Explorer General Manager Dean Hachamovitch wrote in a post to the IEBlog. “Thinking about IE8’s behavior with these principles in mind, interpreting Web content in the most standards-compliant way possible is a better thing to do. We think that acting in accordance with principles is important, and IE8’s default is a demonstration of the interoperability principles in action.”

Quite the change of heart. Guess a record $1.35 billion in antitrust fines changes your perspective on these things. Certainly, Hachamovitch implies as much in his post. Writes Hachamovitch, “While we do not believe any current legal requirements would dictate which rendering mode a browser must use, this step clearly removes this question as a potential legal and regulatory issue.”

It certainly does. And if you don’t believe Hachamovitch, just ask Brad Smith, Microsoft senior vice president and general counsel. He said exactly the same thing, using exactly the same words in a company press release announcing IE8’s Web standards compliance.

If Microsoft (MSFT) believed its “new” commitment to interoperability would curry favor with the European Commission it was mistaken. Sorely mistaken.

This morning the EC slapped the software giant with another $1.35 billion in fines for failing to comply with its 2004 antitrust order. “Microsoft was the first company in 50 years of EU competition policy that the commission has had to fine for failure to comply with an antitrust decision,” European Commissioner for Competition Neelie Kroes said. “I hope that today’s decision closes a dark chapter in Microsoft’s record of noncompliance with the commission’s March 2004 decision and that the principles confirmed by the Court of First Instance ruling of September 2007 will govern Microsoft’s future conduct.”

The fine is the largest the EU has ever imposed against a single company in an antitrust case and brings Microsoft’s total European antitrust tab to about $2.5 billion, in current exchange rates. Quite a sum, to be sure. But for Microsoft, one that could easily come out of the “Found Beneath Bill Gates’s Couch Cushions” fund. Said Jeremy Allison, co-creator of the open-source workgroup file-and-print-server software Samba, “That’s not a fine, that’s just a way of getting their attention.”

In a statement, Microsoft said it was “reviewing the commission’s actions,” adding that the fine concerned past issues it thought had been resolved. “As we demonstrated last week with our new interoperability principles and specific actions to increase the openness of our products, we are focusing on steps that will improve things for the future,” the company said.

But Kroes wasn’t having any of it. “Talk, as you know, is cheap,” she said this morning. “We don’t want talk and promises.”

Color the European Commission unimpressed by Microsoft’s declaration of interoperability principles this morning. Seems the EC hasn’t forgotten that Microsoft’s made these promises before. On at least four occasions.

“The European Commission takes note of today’s announcement by Microsoft of its intention to commit to a number of principles in order to promote interoperability with some of its high-market-share software products,” the EC said in a statement. “This announcement does not relate to the question of whether or not Microsoft has been complying with EU antitrust rules in this area in the past. The commission would welcome any move toward genuine interoperability. Nonetheless, the commission notes that today’s announcement follows at least four similar statements by Microsoft in the past on the importance of interoperability.”

The European Committee for Interoperable Systems, a coalition of Microsoft rivals, was equally dubious of the announcement. Noting that Microsoft announced its last interoperability initiative in August of 2007, when it had not yet complied with the EC’s 2004 ruling requiring the disclosure of interoperability information, the ECIS said the world needs a permanent change in Microsoft’s behavior, not just another announcement. “We have heard high-profile commitments from Microsoft a half-dozen times over the past two years, but have yet to see any lasting change in Microsoft’s behavior in the marketplace,” ECIS Legal Counsel and Spokesman Thomas Vinje said in a statement.

Vinje went on to suggest that if Microsoft is truly serious about enhancing its support of industry standards, it will endorse the Open Document Format at the International Standards Organization meeting next week and stop pushing forward with its proprietary Windows-dependent standard document format.

Microsoft (MSFT) made a “significant” company announcement this morning, one thankfully unrelated to its bid for the much diminished Yahoo (YHOO) Inc.

But what is there for the software giant to talk about these days other than Yahoo, really? Why that old saw, software interoperability, of course. In a statement issued this morning, the software giant announced changes to its technology and business practices intended to “increase the openness of its products and drive greater interoperability, opportunity and choice for developers, partners, customers and competitors”–which translates roughly as “appease European antitrust officials.”

Among the key changes:

• Microsoft will make the protocols and APIs in its high-volume products openly available to the developer community.
• Microsoft will indicate which protocols are covered by Microsoft patents and will issue licenses to those patents on “reasonable and nondiscriminatory terms, at low royalty rates.”
• Microsoft will implement a covenant not to sue open-source developers for development or noncommercial distribution of implementations of those protocols.
• Microsoft will support open standards and work with developers and standards-setting bodies to enable the transfer of user data from Microsoft applications to apps designed by third-party developers.

“Customers need all their vendors, including and especially Microsoft, to deliver software and services that are flexible enough such that any developer can use their open interfaces and data to effectively integrate applications or to compose entirely new solutions,” Ray Ozzie, Microsoft’s chief software architect, said in a statement. “By increasing the openness of our products, we will provide developers additional opportunity to innovate and deliver value for customers.”

Quite a move for a company whose leadership once likened Linux to “cancer” and derided open-source licensing models as “Pacman-like.” Though it’s not like we haven’t seen this all before.

“They are not making the source codes open, but they are opening the gates that allow you into the compound,” said Matt Asay, a general manager at open-source management company Alfresco. “It’s a great first step. … It’s a bold move by Microsoft. It’s a good indication of Microsoft’s self-confidence that it feels it can open up what effectively are its crown jewels and not lobotomize its company at the same time.”

The European Commission paid a surprise visit to Intel this morning. The commission, which last July accused the company of abusing its dominant position in the microprocessor market, raided Intel’s Munich offices in Germany in an antitrust probe.

“Commission officials carried out unannounced inspections at the premises of a manufacturer of central-processing units and a number of personal computer retailers,” said Jonathan Todd, a commission spokesman. “[The companies] may have violated EC [European Community] Treaty rules on restrictive business practices and/or abuse of a dominant market position.”

Bad news for Intel (INTC), which is also under investigation in New York state for alleged abuses of market power.

Universal Music Group CEO Doug Morris’s attempt to wrest control of the digital music market from Apple has–shock!–run afoul of U.S. regulators. The Justice Department has begun investigating Universal for proposing to its three main competitors that they collaborate on “Total Music,” a service that would bake the cost of an “all-you-can-eat” music subscription into the hardware that supports it.

It’s not clear which aspect of Total Music has piqued the Justice Department’s interest, though it’s likely concerned that participating labels might collude to set wholesale music prices. And for good reason–the major labels were found guilty of wholesale CD price fixing back in 2000.