Complainant not surprised at Microsoft decision

Auckland lawyer Craig Horrocks says the rejection by the Commerce Commission of his complaint against Microsoft of anti-competitive behaviour is no surprise.

Auckland lawyer Craig Horrocks, who complained about anti-competitive behaviour by Microsoft to the Commerce Commission, says he isn't surprised that the commission has decided not to launch a full investigation.

Commission spokeswoman Jackie Maitland said yesterday that the commission has decided Microsoft is not in breach of the Commerce Act.

The finding comes three months after Infraserv, a division of Auckland law firm Clendon Feeney, laid a complaint on the grounds that Microsoft's conduct demonstrated a major market problem and disregarded the Commerce Act.

It was spurred by changes the company made to its licensing model and the introduction of a licensing programme called Software Assurance. The programme requires customers pay two years in advance for the right to any Microsoft software upgrades, regardless of whether or not the company releases any within those two years. In the past customers have bought upgrades as they required them.

"[The decision] comes as no surprise to me," says Horrocks. "I hope that my complaint at least raised awareness of the cost increases and some of the implications of the Microsoft decision to cancel upgrades."

Horrocks says that during its investigation the Commerce Commission engaged extensively with Microsoft over the complaint but he received only one phone call.

Meanwhile, the Ministry of Commerce is looking at a separate complaint, filed by Clendon Feeney last week, alleging that Microsoft has transgressed the Fair Trading Act. That complaint relates to an electronic brochure issued by Microsoft to software dealers entitled "Licensing Programs Change After July 31: Understand Your Options".

The brochure says if customers buy an Upgrade Advantage licence before July 31 they are guaranteed the right to upgrade to the current version of a product as well as rights to the forthcoming version at no additional charge.

Clendon Feeney alleges the brochure breaches section nine of the Fair Trading Act, which deals with misleading conduct. Horrocks says it’s misleading to say customers are guaranteed rights to forthcoming products and that the brochure may not accurately summarise the contractual provisions in Microsoft's Open Licence 6.0.

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