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Microsoft vs. Burst.com
rocketjam writes "Robert X. Cringley has an interesting story on one of Microsoft's many little-known legal cases. Burst.com is suing Microsoft, claiming MS negotiated in bad faith for over a year before stealing Burst's patented technology for increasing the efficiency of video and audio streaming. After Microsoft submitted all emails associated with the their dealings with Burst to the court, Burst's lawyers discovered a 35-week gap of missing mail during a critical portion of the negotiations. When the judge learned the Sun vs. Microsoft antitrust case had revealed that MS keeps backups of all emails on over 100,000 tapes stored offsite, he ordered them to come up with the missing messages."
Wow...Microsoft undertaking anti-competitive behavior and holding evidence from a court of law? I don't believe it.
Err...wait...that's the only thing they seem to be doing lately, aside from helping the feds bust 18 year olds for writing worms.
...is that they happen again and again. It's cheaper for MS to just pay small companies "small" settlements of $20-50 million.
That's chump change to MS but lots of money to most smaller companies -- so MS just buys it's way out of these lawsuits until the cows come home.
Unfortunately, something like this isn't enough to really nail MS and make them change permanently. I almost yawn when I hear about it right now -- it's somewhat depressing that a strategy like this can work, but it makes great numbers sense.
Due to my own involvement in these kinds of things I'm posting anonymously, which sucks...
Now taking bets on Microsoft's off site back up location mysteriously having lost/erased those tapes.
As much as Microsoft is likely wrong in this situation.... it shows more of the woes of software patents. It's too late for us in the US, but for those of you in Europe.... write your... uhhh, Europie Congressperson....
If software patents were legal at the turn of the century, Ford would be the only car company in the world.
So the question is, will future companies still decide to deal and partner with MS, or will this case impact their business alignment reputation more than any other? MS will still dangle a ton of money in front of any company, at which point will those littler guys convienently forget the behemoth's negotiation techniques?
It's funny that Microsoft does not learn from history. But how do you change 20+ years of anticompetitive methods and shady business practices? This wouldn't happen if Microsoft had been split up. Hopefully all that is just and humaine will prevail.
JasonBlogs
These would be internal (MS-employee to MS-employee) emails Burst would not have seen, possibly riddled with gems like "Those Burst guys have lousy haircuts" and "Let's dupe their technology so we don't have to pay them anything."
"A worthy cause has never been harmed by the truth" - Gandhi
OK 35 minutes, who'd even know?
35 hours, What? Frigging Veritas... Damnit Bill get them on the phone!
35 Days, OH THAT IS IT! I want the back up guy fired... jeez fellas we're really sorry
35 WEEKS? Yes your honor we were trying to pull one over on you....
This
Maybe, unless, you, like their lawyers, were on contingency...
Agreed in full. The biggest problem with the US is that corporations are given the same rights and treated as regular citizens without having the burdens or responsibility of that designation placed on them. When a company executice pockets millions of dollars by artificially inflating stock prices and then selling it off before leaving the company, we call it a golden parachute. But if an individual did something like that, it would be appropriately called robbery. If, during the course of a trial, a normal person hides evidence or lies under oath, they are held in contempt and thrown in jail. If a company does so, it's strategic. Bullshit.
Truth is, until this country recognizes that we can not treate corporate entities as if they were private citizens, you will continue to see this kind of hypocrisy.
"Watch your cornhole, bud."
Even listening to the most amazing stories about what happened to huge amounts of moeny, the Federal bankruptcy agent doesn't even look up. He's heard it all before so many times, it's the same old shit. Everybody lies.
I don't suppose you read about any Enron executives going to jail recently, did you? Of course not. What Enron did is no different than what every big corporation does. Some are just better than others and if you steal too much at the wrong time, the house of cards can fall down. Executives don't go to jail for stealing. Can you imagine a trial of executives by their peers -- other executives? "Well, Kenny, you should have used my guys to set up your fake accounts. You wouldn't have been found out for another couple years and you could have paid Ashcroft his cut and moved the rest of the money to a good bank in Grand Cayman by then."
Maybe these standards of culpability that you are referring to only exist in your head? There is certainly not much evidence in the real world of anything that resembles "business morality". Almost every business in the USA is crooked. With a giant overbearing government that has a bloodthirst for taking your money and then returning less than 4 cents on each tax dollar, would a rational being expect anything else? If it's okay for the government to lie, cheat, and steal, why should a small business, big business, investor, or anyone else do different?
If you unplug from the morality that is taught to worker units so they are obedient and efficient, you'll be in for a major wake-up call. Your job is to work and pay your taxes, that is all. And good workers are moral workers. Keeps costs down and profits up. All around you, the country is being looted. The workers are going to wake up one day and realize they are fucked because they've been robbed blind while they've had their faces glued to their television sets, absorbing the latest disinformation from the media and the government.
In this case, they've pruned 37 weeks of related emails from their employees' computers and their mail servers, so what's to stop them doctoring the emails recovered from backups?
I guess there would be a possible problem if an employee had printouts or had forwarded certain emails to another address for whatever reason. Then again, what motivation would that employee have for exposing the cover up?
I don't know how things work in the USA corp envioronment, but would something along the lines of monthly backups duplicated, sealed, and dated, only to be opened in the event of litigation, help in these cases at all? This would both protect the legitimate accuser and the wrongly accused... or perhaps it's not that big a deal, and tampering isn't a logistically attractive proposition.
Now where's my tin-foil hat.
Just wondering... the article says that Burst now only employs two people. I don't know how functional the company still is (their website is up at least), but I would think that like SCO, their primary goal is pursuing this lawsuit. The obvious difference is that Burst seems to have a legitimate claim. After they (hopefully) win the MS case, I would hope that the two people working at Burst would continue to develop their business and their technology, rather than just sitting back on a fat cash settlement or award.
This will almost certainly not be proven in court. It is an assertion Cringeley made (or suggested). Cringeley is not suing Microsoft, and has no legal standing to do so - he's a bystander reporting it, not a participant. As far as the Burst case, goes, it's irrelevant why MS did it, the issue is *if* they did it, and if so, did they do it knowingly?
Though, technically, the mere fact of infringement may be enough, under many laws and precedents, "deliberate infringement" can be very important - as a practical matter, it certainly factors into the monetary judgment. I was once party to a potentially important (as a national legal precedent) verdict against a major organization, which caused the offender to draw up untterly revamped corporate practices... until the award phase (which came 4-5 months after the verdict). The court granted a mere $1 in damages. The written decision was clear that the big company was wrong beyond all doubt, but the judge felt it wasn't intentional or within the reasonable control of such a large outfit (a view he wouldn't have held for long, if he could have seen the tone of the policy revision documents generated after his verdict) The plaintiff promptly dropped all its plans to correct the practices the court had found "wrong". Apparently they felt the judge's decision gave them a few years of "yeah, we were wrong, but a court has found that it's not really our fault" leeway before some later case forced them to make changes they didn't want to make - and who knows what might change in the meantime?
Incidentally, this is a fundamental process in all 'History'. "History" is a matter of interpretation and extrapolation. We rarely have a smoking gun that tells us why a leader or governemnt does what it does. Almost always, we only know (a consensus view of) what happened, and can only guess "why".
Did negotiations fall through because Party A was intimidated or unimpressed by Party B's penis at the urinal during a break? Did Party A walk out of a party with a girl Party B had wildly fancied, but never got to the introduction stage with? Did Party A have an accent, or manner of speaking, that subconsciously reminded Party B of a much loathed stepfather or cousin? That kind of thing generally doesn't end up in memoirs or reports.
How long of a run are you thinking of? Check this out. MS is currently worth about $50 BILLION. $50 BILLION - $5 billion is $45 billion. $5 billion / $50 million is 500.
So... a mere five hundred settlements later, MS will only be worth $45 billion instead of the $50 billion they're worth now. Except that, by then they'll probably have made enough money back to more than counteract the loss.
Yes, it is true that it does damamge a company's reptuation to have to dole out money through all these settlements. But the saving face action you're talking about is very important for a company. I imagine that many of the people that have stock in MS will want to turn a blind eye to MS criticism as long as they possibly can. If MS ever had to admit to serious wrongdoing, the company's stock would be hurt badly. Their value might even shrink an order of magnitude or half an order. Ouchie for Bill, Steve and all the rest.
IMHO, MS will try to prevent that for as long as they possibly can.
Furry cows moo and decompress.
Generally not. Most of the time a contingency case is run on a strict percentage basis. If the plaintiff wins, the lawyer gets to keep something like 1/4 to 1/3 of the total proceeds. That's an awfully large amount in some cases, but on the other hand they get nothing if they lose, and next to nothing if they fail to get a big judgment or settlement. Lawyers working on contingency have every motivation to keep their costs down as much as they can without risking losing the case. Effectively, every extra dollar they spend comes out of their own pocket, win or lose, and every extra lawyer they bring on board is one more way that the money will have to be split. You could argue that this makes contingency a good thing, because it means that the lawyers' and clients' interests are perfectly aligned.
There's no point in questioning authority if you aren't going to listen to the answers.
Have a look at:
6 .h tml
http://www.fourmilab.ch/autofile/www/chapter2_8
btw, this is my first post after *years* of lurking...
Microsoft is always worse. That scummy, criminal company can do more damage to the computer industry than patents can.
Wrong. Software patents take away fundamental personal freedoms and are inherently unjust no matter what company holds them. Microsoft is just an unethical monopolist that will pass into obsolescence as technology and the Open Source movement evolves. In other words, the market will see to it that Microsoft gets what's coming to them, but software patents threaten to slow this from happening.
a) how impressed they were with the technology
b) how helpful the NDA documents were from Burst
c) how easy it would be to integrate the technology into MS products as soon as Burst was dead
d) how stringing them along and not signing a deal would lead to the necessary death.
Ok, so it's very nice to come to the aid of the poor underdog who company which has just been bitten by big bad Microsoft. Cringeley does this nicely by stirring up a lot of mud and coming up with some of his trademark wacky theories.
/. crowd, please keep in mind that Cringeley is one of the less pleasant examples of an ignorant technological luddite.
While all this is going on, dear
So, there is this company. It has two employees. I wonder how much code these two employees have written and produced over the years.
And this company has this amazing patent portofolio of nine patents dealing with a technology to "take advantage of the nature of the internet to BURST data to the end user" - instead of fetching the data byte by byte whenever the player wants to play the next frame... right. There is a word for this. Well, actually, there's two words for this.
One, the legal term, is "blackmail": get a patent for a blindingly obvious solution to something that's not even a technical problem and claim that any unwashed programmer would have automatically chosen a mode of implementation that is so harebrained that it would have resulted in great performance losses.
Oh, yeah, and the other word: it's "caching". The idea that maybe data should be downloaded as fast as possible and replayed with some buffer time to spare for lags of the slower transmission medium has been around the block a few times. In fact, I remember writing code for the C64 that did this to play sound while loading data from disk.
Now, instead of going on about what precisely a C64 is - GUYS! Think about which sides you are taking and what you are clamoring for. Burst.com is one of the worse pirates sailing the sea of intellectual capital. Microsoft might be the big evil, but this discussion is as supportive of the ideals of Open Source as the McCarthy trials for Unamerican Behaviour were with respect to supporting democracy and freedom of speech in the US.
Anyone with a gram of brains should be writing to the judge asking him to dismiss the suit... and award damages to Microsoft ask the harmed party.
PS: IMHO, no company should be allowed to pursue patent lawsuits unless they are actually selling a product in the space protected by the patents. But that's just me.
The wild thing here is that Bill Gates thinks people will never wise up.
These corporate horrors are propped up by all the money they make, and people imagine that only a giant company like that can do big business. You need a big oil company to do oil exploration, and so on. But you don't *really* need a big company to make good software, a medium size one would do it. You only need a really big software company to dominate.
Cynically, I personally believe that Microsoft uses the size of its firm, and its cash flow to dominate the software world economically, while the U.S. government uses Microsoft's ability to dominate this area for the purposes of spying. Just for argument's sake, how much of the intelligence used by the War on Terrorism, the War on Drugs, or any other policy is actually derived from intentionally engineered holes and spyware associated with Microsoft products? Seems a word processor, a spreadsheet, and an email program ought to be a good place to put a keylogger..
To me this is the only possible reason Microsoft could still exist. I mean, their lawyers are only human. There is nothing occult going on here. It is just a superpower that has developed a nasty addiction to software solutions from the same company that makes consumer operating systems.
Call me paranoid, but then again I expected the wars in the middle east for the past ten years, and expected them to be backed by just as flimsy reasons as they are now. Of course I didn't expect the horrors of 911, so I thought the U.S. president would be in more trouble. However Tony Blair seems to be on the receiving end a bit these days.
Anyway, unless someone has a better answer, I go for Occam's Razor. It is impossible that Microsoft can get out of such repeated hideous offenses.. the only public anger of the U.S. government at Microsoft was when a recent version of windows was shipped with all of its ports wide open. Perhaps they took their pledge for INsecurity too far? Anyway, the next simplest answer beyond Bill getting supernatural help in the courts is that he's already got a few much bigger deals with the government and feels protected. Of course it doesn't hurt to have a pile of money too.
... unless they buy it, that is. I wonder why Microsoft didn't simply buy out Burst when it had shrunk to a two man outfit and things looked bleak indeed. Simply destroying Burst makes no sense for Microsoft, they should have seen to it, that the technology remains proprietary, and to that end they should have either bought Burst (and their patents) or strengthened it (so Burst can maintain a strong position in the Solaris- and (more important) Linux-Market. If there's noone defending Bursts patents, we'd have seen an open source implementation of the technology as soon as the technology becomes important enough, and then it's cross platform again, only in a way that can't be controlled by anyone.
/. is not by accident) why don't they try to exert control over Burst-technology?
The other thing is, that even if Burst dies someone ends up with the patents (and that'd likely not be Microsoft: since they didn't bother before why bother when Burst goes bonk) and eventually someone will try to make money out of it by litigation (that's the current business-modell in the US: 1. get the rights to some IP 2. sue 3. money), so as long as Microsoft doesn't keep the situation under control there's the constant danger of being sued.
These are two very important reasons to keep some control over the Burst technology, either by choosing them as a business-partner (and i'm sure MS has enough ways to make their "business partners" only do what's in MSs interest) or, even better, by buying them out. It's really strange that they make such a tactical error, especially Microsoft. Since they're all about control (the Borg-pictogram on
"By the way if anyone here is in advertising or marketing... kill yourself." -- Bill Hicks
No shock there. Everyone should have learned from Sendo that allowing MS access to the intellectual property they want, without a blood contract, is asking for trouble.
Like most psychotic right wing morons,
The precedent for labelling people whose opinion differs from yours 'psychotic' was established in the USSR, where 'psychotic' people were shuffled off to re-education camps for 'therapy.'
Thank goodness people like you likes aren't in charge in this country (yet).
A Good Intro to NetBS