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Be Sues Microsoft for Violations of Antitrust Laws
Eugenia writes: "While Be, Inc had the information for over 3 years that Microsoft 'through a series of illegal exclusionary and anticompetitive acts designed to maintain its monopoly in the Intel-compatible PC operating system market and created exclusive dealing arrangements with PC OEMs prohibiting the sale of PCs with multiple preinstalled operating systems' they filed a suit against Microsoft only today. Today Be employes a single person in a tiny office in Mountain View. Great ..."
In my opinion, some times a single person without the red-tape of a corporate environment can get a lot more done...
Does Be have any assests or $ anymore?
What does Be have to gain from this, this late into their corporate demise/OS trip into obscurity?
Is not life a hundred times too short for us to bore ourselves? -Friedrich Wilhelm Nietzsche
Its about time. I've about had it with Microsoft forcing PC vendors to install Windows on ALL machines. Not only that, but most of the new machines don't come with the Windows media, only shitty recovery disks. Maybe this will make Microsoft/vendors to think twice before pulling their BS.
Job? I don't have time to get a job! Who will sit around and bitch about being broke and unemployed then?
Today it employs only one person in a tiny office...
Sounds like you're wondering why they'd do so *now* of all times, when they can't do anything.
Easy: Nothing to lose. The company has nothing left. Normally it is unwise to sue MS. They'll just drag it on and you won't get a significant gain (i.e. Apple's suit), even if you do win. But now, the worst the spending can do is bankrupt them: which is basically where they stand now anyway. OTOH, the damages they could land could put Be back on its feet.
Sounds like the smartest option left to them.
Companies will do things like this after the game is over to try and get some nickels on the dollar for the VC's. I would expect them to settle for a low dollar amount.
Well, I wish the litigator success, because it would definitely be a boon for PC's sold today to come equipped with more than one OS. However, nobody put a gun to the head of the OEM's who produced single system PC's. To win this case, you would need to demonstrate that the contracts between Microsoft and OEM's violated antitrust laws. Quite frankly, I doubt that this could be shown. Despite the finding of fact in the antitrust lawsuit, you would have to show that it was impossible or next to impossible for OEM's to sell PC's with alternate OS's.
But Dell has been able to sell Linux (which apparently they dropped, but don't worry, HP is now selling them). And other PC companies have been able to do the same (albeit in limited numbers).
To prove that it was impossible for OEM's to sell PC's with alternate OS's, you would need to demonstrate some sort of collusion between Microsoft and Intel, making it difficult for developers to produce alternate OS's on Intel CPU's. That clearly has not happened. The x86 Intel platform certainly didn't hinder kernel development, and Intel has been relatively open about publishing specs.
Good luck Be. Truly, I feel your pain.
Robert Nagle Idiotprogrammer
Austin, Texas, idiotprogrammer, Technical writer
Robert Nagle, Idiotprogrammer, Houston
Allegedly Palm is using the Be technology as the basis for their next OS. The current Palm OS can't really do the type of things that, thanks to Microsoft et. al, everyone thinks a handheld device needs to do.
Also don't think that even if they get some money, they will return as a viable software company. More likely any money they get will go to their creditors.
"(Man) tries to live his own life as if he were telling a story. But you have to choose: live or tell." --Sartre
Due to the conviction of Microsoft as an abusive monopoly and the many businesses they have destroyed more suits will likely emerge. The fact that Microsoft will battle multiple fronts will probably make it easier to win a suit. When Sun, DOJ, Be and AOL togheter pull resources in different directions it will be hard to focus. This will encourage more stomped companies to file aswell. I think that this also has a good side effect, that is open source will maybe have a window of opportunity to thrive. Microsoft will have their hands full for a while now, especially if IBM and other joins the fight.
HTTP/1.1 400
Remember - it's not illegal if you're not a monopoly, and it's not illegal to be a monopoly. It's just that certain things *become* illegal when you're a legally defined monoply. Most monopolies like utilities (power, water, phone, cable), just kowtow to heavy regulation and limited profits to maintain their monopoly.
--
Evan
"$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
I think people are missing the brilliance of this tactic. Yes, Be is no more. It has ceased to Be. (haha) However, they are illustrating the WHOLE POINT of suing by being out of business.
What better way to illustrate a Monopoly that prohibited vendors from bundling competing products, therby limiting the market and competition to any Microsoft monopoly, than to be a competing product driven out of business by the same monopoly?
Now, as long as they can afford the legal fee's, they may actually have a chance at illsutrating WHY MS should be broken up, and WHY MS IS a monopoly in the truest sense of the word.
You keep going until you die..."Me".
You can't say with a straight face that any of the companies bitching about MS executed their strategy perfectly, especially Netscape. They sat on their ass for too many years and tried to increase the revenue on the server side first. MS went the other way and said that once we have the end user mind share, we can take the back end.
And I only got modded to 1 for the same joke?
The whole point of this article is that what MS did is illegal by anti-trust law. MS having a monopoly is not illegal. But leveraging that monopoly to to continue to keep competitors out is illegal.
Therefore actions which by themselves might not be illegal, when taken in the context of a monoply can be illegal.
Look at it this way. Pretend Ford owned 95% of the gas stations in America and said that their gas could only be sold to Ford cars. Now you (the consumer) want to a buy a car. Normally you would never want to be limited to a car that can only use one vendor's gas. But because Ford own's 95% of the gas stations, you have no choice. If you buy a non-Ford car only 5% of the gas stations will sell gas to you making it unlikely you'll find gas when you need it. Take that one step further. Since everyone buys only Ford cars, no one is going to start a non-Ford gas station since there aren't enough non-Ford cars to support it. Hence Ford can sustain its monopoly through its monopoly power. There is no way to break out of this cycle, no matter how much better or cheaper compeitors make thier cars. The only way to open up to competition is through government intervention via anti-trust law.
Out of the dozens of people I knew who used the 'net in the mid 90s, not a single one ever sent Netscape a penny...
Pets.com weren't selling operating systems for X86 computers.
And to the other idiot, are you saying that all lawsuits against rich corporations should be considered baseless, simply because the defendent is rich ?
FYI, this didn't stop big tobacco.
I am so tired of the following arguments:
1)You can't blame Microsoft for running a business for profits
2)You can't blame vendors for wanting to sell to largest majority
3)MS is simply giving the consumers what they want
etc. etc.
LISTEN: It doesn't matter if you are anti-MS, a VB Developer or Linus himself - Microsoft is a monopoly. It "earned" it's position in the marketplace through illegal practices.
It broke the law. It didn't do this yesterday, or a couple days ago, it's been doing it for years, ever since it came to be. All of the above arguments for "get off Microsoft's back" are invalid by means of history. The current industry landscape wasn't anyone's choice - it's the result of a crime.
"vendors install MS because they know people will buy it"
No, vendors install MS because MS has a monopoly on the OS market, giving them LITTLE CHOICE. This isn't conspiracy theory, it's fact.
Let Be sue Microsoft. We all should be suing Microsoft. How many hours of productivity have we lost to operating system which stole the industry? How much money have we given Microsoft without having a choice of where to spend it?
This isn't a "Microsoft sucks" thing - it's a "Microsoft broke the law" thing. Just because the Bush administration asked the DOJ to back down doesn't mean it wasn't illegal. They were still found guilty.
Thanks to this, we have Windows. We have an OS based on business, not technology. We the government buying it droves, which not only makes our national security at risk, but has actually caused battleships to "crash" (Anyone else remember the "smartship" that had to be dragged back to dock thanks to NT?)
Nobody should be letting Microsoft off early, especially Windows users. Imagine how much better Windows would be if they had a little competition to keep them busy?
inky
One key point of your aguement is somewhat revisionist however. When Windows 95 was released, it included Internet Explorer.
Yes, it stunk. Bad. Really bad. I actually used it once (to download Netscape naturally), it was on the original 95 distribution.
But since MS included IE 1.0 with 95 (at no additional cost), its kind of hard to argue legally thay IE was created in order to kill Netscape -- unless you get a real smoking gun admission from MS
Although I believe this is more a little than convenient for MS, it probably has a significant bearing on the Netscape/MS collision.
Can't disagree with the sentiment, but the NetScape case is not the best legal argument on the table. Beos has a much better case, as does a few other companies (even some still in business).
This was always one thing that annoyed about the DOJ using Netscape as the case, it was not very strong legally, had they gone after the bootloader restrictions (or other anti-competitive behaviors), the result could have been much more useful.
However...
Microsoft was not born a monopoly. One day, it became one. Which day was that, exactly? This is critical, because it was only on that day that it had to clean up its act.
Since we're talking law here, the "conventional wisdom" test (gee, everybody knows they're a monopoly) is probably not sufficient (viz. reasonable minds still differ on that assessment). For that matter, being served with the accusation by the Justice Department was probably not sufficient; after all, they do err sometimes, which is why we go through the trouble of court trials.
Only once the findings of fact were published could MS reasonably be held to that standard. Otherwise, we're in the realm of ex post facto, which is not merely unconstitutional; it's incredibly scary.
What changes need to be made (i.e. settlement or judgment; however it comes out) is for the courts to decide, and they're working on it. Just keep in mind, though, that the patterns of behavior in question can reasonably (I'm not saying unequivocally, just reasonably) be demonstrated not to have been known to be wrong at the time — they hadn't been officially adjudicated a monopoly yet. Does MS need to change? Well, yes, apparently and legally. In fact, changes have been made, but it's still unclear what exactly needs to be done (note even the prosecuting attorneys can't even agree amongst themselves). Do they need to be drawn and quartered? Maybe when some reasonable (unbiased, and the prosecution is by definition not unbiased!) minds decide on what exactly the new rules should be, maybe MS should at least get a chance to work within them? Maybe, just maybe, it would be a Good Thing to give them the benefit of defining the new boundaries, and give them at least one shot to live within them?
Just a thought. Somebody's got to question the lynch mob.
"While Be, Inc had the information for over 3 years [..snip..] they filed a suit against Microsoft only today."
If you read the press statement, it's for "for the destruction of Be's business". It would have been fairly hard for Be to sue Microsoft for destruction of their business three years before Microsoft had finally destroyed their business.
When you're trying desperately to stay afloat and keep your shareholders on board, the last thing you do is publicly sue someone for having irreparably harmed you. Admitting that you're sunk simply guarantees you'll lose whatever remaining chances you have.
I recall all the articles posted to slashdot about BeOS, and how nearly every one of them was greeted by jeers and disgust.
/. masses.
:-)
"Be wasn't free, it wasn't open source. Who wants to use that crap anyway?" was the response of the
Now the slashdot masses want to complain that Microsoft killed Be?
This is hilarious.
Then M$ shoved DOS 4,5, and Windoze down our throats - under which FoxPro was (natively) worthless. I still have a shrinkwrapped copy of the M$ FoxWin runtime - anybody want to buy it cheap? (to be fair, DOS 6 was OK for the purpose.)
Still, I made a living, barely. I could not bring myself to overcharge clients for putting a stable version of whichever M$OS on their boxen, because I'm just that kind of guy. By now I'm stuck. So, I plod along being honest (sorry, [insert client name here] I'll give you a break on this, because it's really M$'s fault)...countless non-billable hours.
Then like a brainwashed moonie, I continue the saga: I get MCSE Certified, give up 45 clients when I go to work for a certain accounting firm's startup computer store here in the boonies for the MSCSP "prestige" (the "partners" were so greedy I spent a third of my time explaining the billing...and the rest repairing registries and replacing perfectly good Novell server installs with NT).
So - I quit. Now, here I sit reading Slashdot, licking my wounds, wishing that I'd learned a 'NIX OS and been out of the consumer OS loop all along (or maybe I should have stayed in the band...)
Ask Slashdot: Who knows a good pro-bono lawyer? (a portion of above rants courtesy of too many hours on /.)
*sigh*
db
Cig:
ôô
Couldn't agree more... how can they be punished for being a monopoly when they legally *weren't* a monopoly until the court ruled them one? Since there's no standard for what makes a software monopoly, how was MS supposed to know when they became one?
It might seem pedantic, but think about it -- nowhere else in the law (that I'm aware of) can you be punished retroactively to before your infraction was established.
And what would you say about Dell's position on AMD chips? They have slowly gone from innovative(the first ones with successful web-based 'configure your own' feature) to the most staid Wintel OEM in the industry. Throwing the linux geeks a bone was a move by their marketting department used to try and promote their image to people who actually have an interest in computers, instead of those who endure them as a neccessity. My god, look at their ad campaign.
People in Soviet Russia, however, appear to be afflicted with amusing juxtapositions of the aforementioned situation
But if you think that microsoft strongarming PC manufacturers is some sort of evil, you should open your eyes.
So...your argument is because other companies are evil, it somehow lessens Microsoft's evil? Or is this the old "everyone is doing it" argument? The topic of discussion here is a suit filed against M$. I wasn't by any means implying that I didn't think that other corporations are equally evil by not explicitly holding forth on them, so I don't believe that I'm being inconsistent.
Those who sell a product or make a product have the right to dictate on what terms they'll manufacture or sell it.
Not entirely true. Microsoft is a monopoly, there are restrictions on what a company with a monopoly in a given market can do to hold on to or extend that monopoly. Having a monopoly is not illegal, but many things that Microsoft has done are.
Even companies that do not have monopolies have restrictions on their business practices.
For instance, it's illegal to tell a reseller what price they can charge for an item. If I produce product X, and I want to set the price for it at $19.95 (retail) I can't stop you from selling it at your price if you choose to do so. I can choose not to sell you the product, but I can't keep you from selling it at cost or even at a loss if you choose to. There are limits to the restrictions and such that a manufacturer can require. I do not know all of the boundaries and laws governing dealing with retailers, but I know it's not "anything goes."
Sears Roebuck often threatens contractors and manufacturers if their prices aren't majorly reduced for Sears.
And so does Wal-Mart and just about any other large retailer. Any retailer wants the best margin that they can get, and larger retailers have the muscle to get larger discounts. That's not illegal. Sears is not a monopoly. Neither is Sony. Best Buy could stop carrying Sony products and still offer TVs. Maytag could stop selling to Sears and not go out of business -- though it might hurt their bottom line. On the other hand, Microsoft jacking up Windows licenses for Dell if they choose to also sell BeOS PCs or Linux PCs could very realistically force Dell to either not sell those OSes or put Dell out of business because the margin is so thin for PCs. Since Microsoft does have a monopoly in that market, it is supposed to be illegal for them to do this sort of thing.
Whining about BeOS not having a chance because of exposure is bullshit. Exposure is not and should not be free.
No one said exposure should be free -- but Microsoft should not be allowed to use its monopoly to prevent manufacturers from developing non-M$ products. Nor should a manufacturer have to pay the M$ tax for every machine, regardless of whether it has Windows loaded.
Bottom line, the "free market" is not unregulated and it's not truly free either. It is mired down with laws to protect individuals, government incentives to help out businesses and all kinds of other legislation and practices that make the so-called "free market" anything but.
And the age-old adage applies here too: Your rights end where mine begin. When a company like Microsoft tramples the rights of other companies by abusing its monopoly position it has crossed a line and it should be punished. It amazes me that so many people actively defend a company whose practices are so repugnant to common decency. If a four-year-old child acted in the same manner as M$ its parents would smack it on its bottom and tell it to behave. Apparently the decency we expect from a child is too much to ask from a multi-billion dollar corporation led by adults.
Yes, BeOS demise was partly due to the lack of software and drivers. But there is also a hint of moment 22 in here.
Why wouldn't companies develop drivers or software for BeOS? Because there wasn't enough users at the time. Why wouldn't the users choose BeOS? Because there wasn't enough software or drivers at the time AND because most OEM manufacturers woudn't preinstall BeOS on boxes.The fact that Microsofts license agreements stopped the OEMs from preinstalling other OSs is probably why they (he/she) have choosen to sue Microsoft.
It was really a pity to see BeOS go, I had a feeling that they were just about to get over the userbase threshold and out of the moment 22 area, just as the financiers decided to pull the plug.
--
"I'm surfin the dead zone
In the twilight, unknown"
Be, Inc did negotiate a preload deal, with a big vendor. The product actually did ship in limited quantities, after it got Microsoft'ed.
Be, Inc. and Hitachi created the Prius 1, and neat little desktop for the Japanese market. It was going to be a dual boot, Windows 98, BeOS box, with the 2 operating systems side by side. Before it shipped however, Microsoft evidently went in an played hardball, forcing the preload to be modified in such a way that the BeOS bootloader couldn't be displayed until after Windows was running, and even then it was buried in a menu in the programs folder of the start menu. Now considering that most users don't even know how to get to the calculator, this is pretty much a death knell. The deal fell apart a couple months later.
Now I'm not an insider to either company, but I've been around the industry and I've had enough exposure to make an educated guess about what happened. It probably went something like this.
1. Be makes press release announcing deal and is queitly nearing deals with at least one major US Vendor, probably Gateway or Compaq.
2. MS low level staffer tasked with watching the press wire sees the announcement and shuffles it into the channel for 'handling'
3. Hitachi and Be spend a month or so working out the technical details and prepare the machine for shipping.
4. The press release finally gets to the upper management at MS and the marketing and account relations machine goes into action. Considering Hitachi's size and volume in the the Pacific Rim, Steve Ballmer gets on a the phone with Hitachi's president and explains the 'hidden' costs of this preload deal. Namely no more discounts on MS Office, and discounted price of Windows just tripled. And oh yeah, if you reread your contract the we signed with you, Windows boot process cannot be alter in these methods. You are going to have to do it our way.
5. Hitachi cannot fight this in a market that is operating on increasingly tight margins.
6. MS sends out a private reminder of the preload agreement's fine print regarding bootloaders and dual booting non Windows Operating Systems. This effectively closes the US Vendor deals and seals Be's fate.
7. Be begins the 'Focus Shift', attempting to invade the only market left open to them.
8. Be discovers that the market that appeared open to them has a couple of entrenched players, and one entering the market that has assets and marketing to kill them.
9. Be runs low on cash and begins the liquidation process.
10. Part of the exit strategy is to liquidate all assets and IP, then using the entity, sue the snot out of MS.
11. This would pave the way for Palm or whomever to then invade the x86 market once again.
On a side note, as brilliant as Apple's Mac OS X is, all the furor about bringing to x86 presents the exact same stumbling blocks, and make it therefore a 'Bad Idea' (tm).
Andy Satori
dru@druware.com
Let me be the first to say that this is a pointless remark. Exposure, sure as h*ll can be free. More power to the companies that can make use of free exposure for their products.
But companies like Microsoft force feed it to you with rhetoric that causes the average consumer to become dizzy enough to buy their products for fear of the uncertain.
As a card carrying member of the 'John Q. Public Consumer Guild', I've wised up to the flashy and pushy advertisements for products. I've learned to look past all that and try to understand how the product really works. There will be more consumers like me in the near future. Pretty soon flashy advertising won't work anymore. Then Microsoft will have to stand on their own merits.
BeOS may have been a day late and dollar short, but they did set a precidence that all consumers may not be aware of now, but will be soon. Then you'll see future 'BeOS' getting a fair chance due to free exposure.
Maybe someday a new advertising concept of some sort will come out and will be licensed as GPL or BSD-like to offer the free chance these companies need on a fair playfield.
Seriously, MS has already been found guilty of being a monopoly.
I'm kind of nitpicking words here, but being a monopoly is not something you're found guilty of. Being a monopoly isn't a crime.
I remember so many PC makers who tried to offer Be on a pc till Microsoft totally went agro on the makers and made them stop.
I did hear something about this, but I didn't thing there were many, or that they were big companies. The reason computer companies would want to offer BeOS on their computers is to differentiate them from the competition. The downside of offering it is support costs. Don't underestimate how much supporting BeOS would cost a big name manufacturer. They contract out their support, and every call cuts into their low profit margins. Training a support staff enough to be useful on BeOS would be an expensive task, and the contractors are going to pass that price on to the computer companies.
BE never had a chance, and the OS from my point of view was incredible.
I never used BeOS, but it would have to be truely incredible to have even a slight chance. Most people with computers want the same OS that everyone else is using. That fact is the true barrier to entry for new OSs. I've heard from some people that BeOS definately shined in some areas, but even if Microsoft just ignored it, I doubt it stood a chance. Microsoft has a monopoly because they won the first round of the PC OS wars, and the nature of the OS business is that it works out easiest for everyone it they're all using the same one. Microsoft also doesn't sit still. They constantly work to make Windows better. They definately don't do that flawlessly, but they have definately done an exellent job on making their user interface easy to use, and they keep working on making it better.
Be may very well have a case. Microsoft may very well abused it's monopoly position out of paranoia. However, it's unlikely that the damages are in the billions if they are guilty. It's more likely that they crushed a niche OS that may have been able to make millions more. If they did that, they should be punished, and the damages trippled acording to law.
In the short run, a lot of economy professors will be making money as expert witnesses, and lawyers will get rich.
No offense, but comparing Be to SGI is pretty silly. SGI has been an established player for sometime with a strong niche market in the high-end graphics/animation field. Be was an up and coming OS trying a niche for hobbyists, much - as you said, like SGI.
The main difference between their strategy is *when*. When SGI did it, MS didn't have the strangehold they did when Be did.
Everyone keeps saying "It's Be's fault - they screwed up."
But this sounds like the guys who try and complain that an NFL coach made a bad call, but they don't know what a good call would have been.
What was Be's mistake? Where did they go wrong? What should they have done better?
Be tried *everything*. I think they tried every possibly marketing strategy out there for modern OS's - custom hardware, cross-platform, giving it away FREE.
What is it exactly they should have done better? What would you have done?
Be's problem is that there wasn't a market for them to enter. The cause, according to this lawsuit, is Microsoft. Considering the court findings, I'd say they have a case.
inky