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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.
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.
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.
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.