Antitrust case against Microsoft over AV would be 'long shot,' says expert

Another rival punches Microsoft for distributing free antivirus software through Windows' update service

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Security companies miffed at Microsoft for distributing antivirus software through a Windows' update service should forget about calling in the lawyers, an antitrust attorney said today.

"It would be a long shot at best," said Hillard Sterling, of chances rivals could prevail in a civil suit based on antitrust charges. "It would be difficult if not impossible to show any anticompetitive impact," added Sterling, a partner with the Chicago-based law firm of Freeborn & Peters.

Last week, Trend Micro questioned Microsoft's decision to offer Windows users the free Security Essentials software through the operating system's patching and program update services. "We're concerned that Microsoft may be using its OS-based market leverage to box out other choices. If that were to happen, it would not be good for consumers or the industry," said Carol Carpenter, the general manager of Trend's consumer and small business group, last week. "Commercializing Windows Update to distribute other software applications raises significant questions about unfair competition."

Starting Nov. 1, Microsoft began offering Security Essentials to PCs running Windows XP, Vista and Windows 7 that lacked antivirus software.

Sterling said Trend hasn't a legal leg to stand on.

"The [Security Essentials] download is optional, so there's no barrier to competition here," he said. "Other security products are readily available from a multitude of channels."

Nor does Carpenter's "market leverage" argument hold water, Sterling continued. "Microsoft may, in fact, have competitive leverage, but that's a far cry form an antitrust violation," he said. "Antitrust laws are designed to protect consumers, not competitors."

Even in the European Union, where Microsoft has faced much more aggressive antitrust regulators, Sterling doubted that antivirus rivals could make a case. "The EU has taken a stronger stand against Microsoft's conduct, but unlike the browser case, there doesn't appear to be any real barrier to competition here," he said.

Sterling was referring to the browser ballot screen that EU Windows users faced earlier this year that displayed alternatives to Internet Explorer -- the browser bundled with Microsoft's operating system -- and asked customers to choose which to install as their default. That ballot screen was mandated by a 2009 agreement that Microsoft reached with government regulators.

Microsoft's decision to offer Security Essentials doesn't prevent other companies, including Trend Micro, from getting their products onto PCs, said Sterling. "Perhaps a competitor could create a case if Microsoft was barring OEMs from installing others' security software on new PCs," he said. "But they're not."

Nor are U.S. antitrust regulators likely to take on Microsoft over its antivirus practices. "The Obama administration has been cautious [about antitrust litigation] despite its policy announcements," said Sterling. "They're looking for a slam dunk case, but so far it hasn't found one, certainly not in the technology sector. And this would be a very unattractive case for the administration to flex any antitrust muscle."

Trend Micro isn't the only rival unhappy with Microsoft about Security Essentials' new distribution channel. Panda Security took its shots Monday.

"If [Microsoft's] objective is truly to protect users from malware, then why doesn't Microsoft allow [Security Essentials] to install in pirated copies of Windows?" asked Luis Corrons, the director of Panda's research lab, in a Monday post to a company blog. "Even Microsoft itself acknowledges that malware infections are more prevalent in illegal copies of Windows." As Corrons noted, Microsoft blocks users running counterfeit copies of Windows from installing Security Essentials. And the company has explained some countries' high PC infection rates by claiming that users running bogus Windows are leery of patching their systems.

"While Microsoft wants us to think it is doing this out of the goodness of their hearts, the reality is that the measure will have little impact as millions and millions of unlicensed Windows PCs will continue spreading viruses and infecting the rest of us," argued Corrons.

Corrons also knocked Security Essentials' quality -- a common tactic by rival antivirus vendors -- and called on Microsoft to make Windows more secure, not waste its time distributing security software.

"Microsoft's security resources should work on making the OS more secure, not just putting a Band-Aid on it," Corrons said. "Microsoft should make a serious development effort to secure the OS from the ground up, and not limit the security tools currently available to its users."

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer, or subscribe to Gregg's RSS feed . His e-mail address is gkeizer@ix.netcom.com.

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