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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 ..."
Should they change the name of the company to 'am' or 'is' since they only have one guy now? ;-)
I watched C-beams glitter in the dark near the Tannhauser gate.
At least they won't have any problem demonstrating irreparable harm.
And the brethren went away edified.
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.
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
I fully agree with Be's suit.
Microsoft hit BeOS hard with the release of Windows Me. You see, BeOS PE needed a way to exit Windows without shutting down. This was possible in Win 95 and Win 98, but removed in Win Me.
Microsoft never gave a reason for this, and it is assumed that MS made this change to restrict other OSes from running along side of Windows.
Microsoft's strong-arm tactics in OEM licensing also hit Be hard. Many companies were going to start shipping BeOS machines, but they noticed a clause in their license that would require the purchase of a Windows license, even though Windows would not be used. This would be very costly, so the OEM BeOS idea failed.
Some have said that the size of Be will hurt them. I diagree. Think from the jury's point of view.
You see one large company against one man. That one man used to be a large company, but the other large company killed it.
It is just this kind of tale that will help Be the most in the courtroom.
-twb
I for one am glad that Be is sueing Microsoft, and I don't think it's as futile as some think either. If you read the article, the entire suit is based on the destruction of Be, majority of it because Be was unable to get PC OEM's to install Be on PC's they sold because license agreements with Microsoft prohibited that from taking place, else they violate their agreement with Microsoft, and will not be allowed to install Windows on any machines. You cannot get anymore anti-competitive. Plus, with only a single person left in the company, and 99% of its assets sold off, you can't get anymore proof the business was indeed destroyed. The burden on Be now is to prove that is was indeed largely Microsoft's fault and not other elements such as poor business plan, or a product the market didn't need. Hopefully it'll get more press coverage, this should continue to help prove to the average Joe Windows that Microsoft didn't get where they are today because they make a good product.
..There's a-dooin's a-transpirin'
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
Elizabeth sits in a closet now
and the blissful memories fade
visions of objects and mime-types
and the neat little scripts that i made
Hope for the future has past
from my elegant blue Beth
to various *n*x machines
what little hope I have left
For as much as gnu's full of bounty
and the empire looks to fall from it's hill
I remember a time that was simpler
only a BeBox my wish could fulfill
When Be had an agreement to ship pre-installed on laptops from a major distributor (I forget, was it HP?) Microsoft stepped in and said "did you read your license agreement? You can install other operating systems if you want, but you cannot boot from them or display how to get to them." So the machines shipped with Be installed, but most people never knew it. This cost Be quite a bit of money.
They tried to get the DoJ to use this in the antitrust trial, but the DoJ said that their case was for illigal tying, not for exclusionary agreements. DoJ urged Be to go to trial separately.
When BeOS was purchased not too long ago, they reserved the right to sue MS based on the judgement of the court in the DoJ trial. Since it appears that the DoJ sold out, Be is finally doing what they should have done earlier.
Better late than never. Good luck, Be!
Ultimately what will bring down Microsoft isn't any sort of half-baked government settlement. What will doom them is having to fight a ton of little court battles against every company who ever thought about competing against them. Even if they win a lot of these cases, the pure distraction of having to fend off all these suits is going to hurt them.
This sig has been temporarily disconnected or is no longer in service
Even worse, the beast may have infringed on Be's trademarks.
According to legal opinion in Redmond, "Lindows" may confuse consumers into thinking they're getting "Windows". So switching the first letter of your product name with that of another player is bad, right?
Well, "Be" only had two letters to begin with, and MS went and took one of them for their shiny new consumer OS! It's like the David and Bathsheba of the software world. Truly shocking.
microsoftword.mp3 - it doesn't care that they're not words...
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
Be is one of the few companies that genuinely do have a case, me thinks. With browsers the situation is bit convoluted (no one ever made money selling browsers). With BeOS, Be had snowball's chance in hell getting h/w manufacturer's to pre-install the OS because of Microsoft's strong arm tactics. Consumers didn't get to choose... perhaps they wouldn't have wanted BeOS in any case, but MS didn't want to take a chance. Of course MS didn't just fight BeOS but all potential competitors... Be just happens to be the one that had closest match on intel hardware (for 'normal' consumers).
Oh and yes, these tactics were hardly "tiny little thing" that Microsoft "didn't even know it was doing"... the whole industry has known about this for years now... but big names (Dell, Gateway et al) have been too scared of Don Bill to publicly complain (and/or greedy and content with status quo... they just sell hardware, OS is just a tax they have to pay)
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
The problem wasn't that OEM's couldn't offer another OS, it was the fine print that said if you offered Windows, you couldn't make any changes to the boot loader. Hitachi had a PC, the Flora Prius, that had BeOS installed on a seperate partition, but in order to use it, there were instructions you could get online to make it bootable. Good article on it here.
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".
Novell invented MS-DOS networking. If not for Novell, there would have been no usable networks in the Wintel world (here come the Vines flames!) and the Wintel sales juggernaut would have been slowed down quite a bit.
Long-timers can remember MS-Office 97 Service Pack 2, or, The Service Pack That Ate Novell. That innocuous SP broke all the Windows networking conventions (which Novell had invented!!) and rendered Netware uninstallable on W95 for about 4 months until a patch was developed. I am sure that Microsoft had no such intent when it released that patch. Very sure.We'll see.
sPh
The fact of the matter is, only a small percentage of people even want to use these fringe products. Why punish Microsoft for that?
This would be compelling if it were truthful.
The reality is that people would like alternatives to using Microsoft, but Microsoft has done everything it can to prevent Dell, HP, Compaq and others from presenting options to their customers.
The other OSes aren't getting to play on a level playing field. BeOS was a very slick OS, it had all the features that most users would want and was very user-friendly. And it never had a chance, because people weren't exposed to it. They didn't have the marketing dollars to promote it to the average computer user and they couldn't get it on PCs made by the big PC manufacturers because Microsoft did everything they could to prevent it.
I'm sure that there are people who would still buy Windows if Dell offered BeOS computers -- but the number of people who would have chosen BeOS would probably surprise you -- had they ever been offered and promoted.
If you're technically apt enough to build your own computer, you can go with an alternative OS. But the customers who want to buy a premade computer from a major manufacturer don't get a choice. Many PC manufacturers have shown interest in having a product line that doesn't include Windows -- and they've been slapped down with exclusive licensing agreements and price dis-incentives from M$ for trying to offer non M$ products.
That's why M$ should be punished. Harshly.
Signing exclusive agreements is NOT illegal!
This has been covered extensively in the antitrust decision (which, BTW, was upheld unanimously by 9 appelate judges). The exclusive agreements are illegal when you have a monopoly in that particular market. Microsoft has a monopoly in the OS market. (*) Therefore, the exclusive agreemets are illegal. End of story. You'd do well to actually get a clue before spouting nonsense.
(*) Oh, and before some moron decides to beat the "MS is not a monopoly" horse, I will not argue with that. I'll merely point out that the district judge and 9 appellate judges disagree with you. And they probably understand the laws a bit better than you.
___
If you think big enough, you'll never have to do it.
If I were an OEM, I could install both Linux and Windows on the same machine, and be able to offer my customers a simple multi-boot solution without having to modify the boot sector at all. It's called a boot disk. Insert this disk when you want to boot to Linux. The disk contains nothing more than SysLinux, which is set up to boot the linux partition off of the harddrive. There, OEM License problem is solved.
Then just put a little icon on the Linux desktops. "Tire of using a floppy to boot linux?" Curious users will click it, and it will Druid them right through installing a multiOS bootloader on their harddrive. Probably LILO or GRUB. And voila, you're done.
Of course, most OEMs aren't too bright when it comes to getting around license restrictions. The legal departments tend to jump onto the MS bandwagon pretty quickly since it's been their bread and butter for so long.
The OEM Licensing agreement you are refering to is considered a trade secret. NOBODY but the legal teams at the OEMS are allowed to read it. Your idea assumes that the licensing agreement doesn't explicitly exclude the "loophole" you described.
Okay, giving your idea the benefit of the doubt, Microsoft's OEM licensing agreements are contingent on the whim of Microsoft. If an OEM, and I'm not talking about Joe OEM, I'm talking about the big names, Gateway, Compaq, Dell, even look at Microsoft crosseyed, Microsoft may yoink their OEM license agreement, which would subsequently mean immediate death to said OEM. They can't afford to sell computers if they aquire Windows at a retail price. This means that Microsoft has a lot of leverage outside of their exclusionary licensing agreement that does not leave a lot of room for OEMs to be "creative".
This topic is what Be's complaint is about. When Compaq announced that they were going to market a Internet Applicance running Be's BeIA, well, read this quote from Be's complaint:
Microsoft used monopoly illegaly (tried and convicted by the highest appeals court). Their control over OEMs extends past their written contracts.
Actually, Be did exactly this. I know, because I wrote some of the docs for it.
And guess what? It didn't work.
The fact is, sticking in a floppy and a sheet of paper is vastly inferior to having the software appear in front of the user when they boot.
So, you can get around the letter of the license agreement with this tactic, but you can't get the same market leverage. And it's market leverage that pays the bills, not a "clever" legal trick.
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.
Actually, didn't Be once make headlines by offering to give its operating system for free to any PC vendor who would sell BeOS preinstalled on its PC's? Either as the sole operating system on its PC's, or set up as a dual-boot with Windows?
Still nobody took Be up on it. Even adding a free operating system to their PC's would have incurred so many penalties from Microsoft that no PC vendor wanted to take the hit.
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.