The European Union's antitrust investigation team has released preliminary statements on how it will rule on the question of whether Microsoft abused its dominant market position to push the adoption of Internet Explorer; the remarks are not encouraging. The investigation is not over—Microsoft still has time to issue its own formal response to further concerns the EU raised in January—but the company may need a Hail Mary pass to escape the penalty the EU is prepared to level.

Jonathan Todd, spokesperson for the EU Commissioner for Competition Neelie Kroes, gave the website EurActiv a peek into what the commission is planning in the event that Microsoft cannot successfully answer the EU's questions. "If the Commission's preliminary conclusions as outlined in the recent statement of objections were confirmed," Todd said, "the Commission would intend to impose remedies that enabled users and manufacturers to make an unbiased choice between Internet Explorer and competing third party web browsers." There's also a hefty fine attached to the remedy, but it's the browser issue we'll focus on.

"Unbiased," in this case, means "bundled." Under the proposed penalty, Windows would prompt the user to choose one or more browsers to install and query which browser should be set as default. This query could occur at first boot (as described), or could possibly be set by an OEM like Dell or HP; users could theoretically customize their browser selections during the process of ordering a system.

Technically, there's no reason why this plan wouldn't work. Browser install packages aren't particularly large, the installations tend to be quick (particularly on a brand-new OS installation where there's nothing to import), and it shouldn't be too hard for Microsoft to build an installer that would run once, set browser choices, download updates (or redirect to appropriate update websites) and then exit. Asking users to install a browser of their choice is less complex and more attractive than, say, forcing Microsoft to sell a version of Vista or Windows 7 without a media player. Interestingly EuroActiv quotes an unnamed commission official as stating that the remedy that forced the creation of Windows XP N "was rubbish."

The problem with the "ship your competitor's browser" approach is that it requires the EU to define which browers are and aren't considered competitive with Internet Explorer. Firefox makes the cut without question, as does Safari, but those three browsers account for 97.37 percent of the browser market according to NetApplications. If we assume that Marketshare's numbers are at least ballpark-accurate, that other 2.63 percent are split between a number of other options, including Chrome (1.12 percent), Opera (0.57 percent) and Netscape (0.57 percent). Below that, we have "other" at 0.22 percent; this presumably includes all the various OSS Web browsers.

The EU's proposed remedy could create enormous customer confusion if it isn't deployed carefully, and it runs the risk of harming future browser development. Microsoft may have initially gained market share by taking advantage of its near-monopoly in the OS market, but the current browser market is scarcely monopolistic. The browsers that satisfy the EU's "competitive with Internet Explorer" bar, meanwhile, achieve tremendous exposure on their own. This may equalize the situation for Firefox, Safari, Chrome, and Opera, but future entrants could be caught in a catch-22.