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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."
Cringley mentions that Burst's technology runs under Linux and Solaris. He alleges that one of Microsoft's motives might have been a paranoid desire to reduce closs-platform competetion. It will be very interesting to see if this allegation is proven in court.
That totally boggles the mind that companies/individuals still think that they can play the "electronic ignorance" game with the court and legal computer experts. It seems as if the time of being able to pull the wool over the courts eyes due to the lack of knowledge of technology is slowing coming to an end.
What's even more amazing, in this case, is that it is Microsoft playing "oops, backups? whats that?"
The reason for this mass erasure, it was explained, is that Burst technology was unimpressive and not of interest to Microsoft, and the e-mails were simply not worth keeping. The probability that they all deleted their emails for the exact same period is of approximately the same order as the probability that there actually is Linux code stolen from SCO.
"And this is my boy, Sherman. Speak, Sherman." "Hello." "Good boy."
This is just business as usual for MS. They have a long history of such activity. When it gets to court sometimes they lose, but frequently enough they are able to bankrupt the complaining company before "the wheels of justice" get around to turning. Frequently enough that they still consider it good practice even after losing a few cases. (The punishments were trivial, so why stop?)
I think we've pushed this "anyone can grow up to be president" thing too far.
Am I the only one who thinks there should be real penalties for this kind of behavior? I mean, I understand you are supposed to try to win a case and everything, but failing to produce evidence on demand from a court should be punished, especially when the culprit has a history of presenting false and misleading information in court, and encouraging its legal agents to lie under oath. Why the fuck is it that we don't hold Big Faceless Corporations to the same standards of culpability as we hold individuals? If a small business pulled this shit in court, you'd get it up the wazoo, but when Microsoft does it, it's like the judicial system has no memory from one incident to the next.
I agree, it is very "Nixonesque." In the immortal words of Arlo Guthrie (about Nixon): " Imaging a world where there weren't VCR's and tape players in every home. he was truly a man ahead of his time! He recored everything that was going on in the white house. And that was all fine and good, until one day... THEY STARTED PLAYING BACK THE TAPES! But it wasn't any thing on those tapes that got the man in trouble, so much as it was what had been erased from the tapes."
now, picture Bill Gates, standing on the stair ramp of "Air Force 1.0"; with a double peace sign.... frightening.
Game Overdrive - Gaming News
If you check the related links at that article, you will find another interesting theory by Cringley, who cites any number of cases where MS has ripped off companies, pretending to be interested in buying their technology, but only flirting long enough to steal it. I normally don't like Cringley, but this time he seems spot on.
It's Anne Grabowski's birthday! Ice cream cake in Bldg 4-R break room!
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Just wanted everyone to know that Bill and Valerie Trammel had a beautiful 8lb, 7oz baby girl at 8:30 last night at Cyprus Creek Memorial Hospital. So let's all welcome little Hortence into the world! Yay!
And so on...
"Yes, your honor, we felt that those e-mails were important enough not to erase from Microsoft's permanent record, but the ones relating to the negotiations for which we were under a legally-binding non-disclosure agreement were just, so, pointless, you know?"
No doubt MS is capable of this, but I'm perplexed: assuming at least a few of the missing emails were between MS employees and burst.com employees, wouldn't the burst.com folks still have a copy?
Sure, MS employees probably wouldn't cc: burst.com on the most damaging emails, but just having the burst.com side of the threads during the period in question would no doubt provide the ammo needed to annihilate any claim by MS that the emails sent in the 35-week mystery gap were "uninteresting."
everything in moderation
It's also pretty close to the little trick with email backups that the Clinton White House pulled. We don't have to reach back 30 years, though it's fashionable now to forget Clinton's little email thing.
Maybe 30 years from now they'll be recalling it.
A Good Intro to NetBS
Would you be suggesting that the back end for MSN IM does not keep a journal of all messages within the corporate environment?
Especially when they are attempting to sell just that service to companies in the financial industry who are required by law to keep track of just such information so that they can show that they either have, or have not been communicating insider trading information within the company, or to clients outside of the company?
Somehow with their legal history they would understand that they are just as culpable for this information as their customers may be.
Additionally all that it would take to blow their cover is for one disgruntled former employee to come forward and show that the reason he was fired was because too much of what the company found in his IM history had nothing to do with work (except that he was hitting on a woman who works at the company, and that the evidence of such was from the server, and not his or her PC.
Then again I could be wrong.
-Rusty
You never know...
> It's cheaper for MS to just pay small companies "small" settlements of $20-50 million.
Remind me again how many fines MS had to pay for the whole anti-trust case (and please don't count software since the marginal cost $0 *and* it strengthens their monopoly).
-- Don't Tase me, bro!
Let's see, $1B or so to AOL for damages to Netscape. About .5B for another recent patent suit. There was a CA consumer class action they tried to settle by "donating" software to schools.
They seem to be on a real losing streak, legally. What am I missing? What's the total for legal damages in court cases to date?
But with $50B in the bank, losing law suits seems just a minor cost of doing business.
Best,
-jimbo
XML Tools for Mac OS X
And this just a few months after MS bought a licence from SCO and trumpeted how commited they were to respecting IP through licencing.
Spyglass
1000 SlashDot sigs
1 claiming patent infringments
2 claiming MS stole secrets under a NDA.
If this is the same technology they can't win on both.
If Burst.com actually has software patents on the technology Microsoft allegedly stole from them, isn't this case an example of how software patents can help the little guy faced with huge companies stealing their inventions?
Sorry, I didn't read the article so forgive me if this scenario doesn't exactly fit. But I thought it would be worthwhile bringing up given the recent surge in protests against software patents.
At a company I worked for 8 years ago, Microsoft "evaluated" our product for more than a year, then filed a patent application for the fundamental technology behind it. We didn't even have to sue them. We just demonstrated to the patent office that:
1) Microsoft was trying to patent technology that we had been shipping for 3 years.
2) Microsoft had "evaluated" our product for a year before filing for a patent.
3) We had implemented the technologies straight out of textbooks, giving concrete evidence of prior art. (That's one reason we were not foolish enough to try to patent it ourselves.)
The patent application was rejected. The most interesting note about the incident was that it all happened within 2 months - amazingly fast.
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.
I had a friend who worked for Burst in the last year or so of their existence. They fired everyone about IIRC 18 months ago. Two people stayed behind to try to "extract value" from their IP claims. In some ways this is not so dissimilar to SCO.
What I will say is that their technology claims seemed dubious. At the time I worked for a large supplier of streaming media software so I had some interest in their technology. Their central claim was for a buffering caching technique for streaming video that frankly was well known in the community long before Burst came along. It just wasn't novel. I would have thought Microsoft could have found plenty of prior art to fight this claim.
Sailing over the event horizon
NOTHING. I worked for a big 3 automaker where falsified data was part of the corporate culture. Falsified data to pass ISO 9000 audits, wierd enron-style production accounting, falsified safety records even.
Senior plant management didn't want to know about it. They were well aware it was happening though. This made internal whistleblowing a joke.
Going to the authorities was out, I discussed the situation with a police officer I knew and he couldn't think of any law they had broken. I fantasized about going to the press but that would have involved me taking company property past a security checkpoint and running the risk of being called a thief. Also burning my bridges on the way. So I just quit. I imagine there are alot of people like me in the corporate world.
Knowing what I know now, I probably would have went to the SEC. This was a few years ago though, well before Enron.
How much NDA material do you typically e-mail over the internet?
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
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.
Not to point out the obvious, but the American Gov't might have a vested interested in seeing Microsoft the entity do well simply because it brings in a fantastic amount of money to the US. A similar example might be the way that the South African government would be interested in pumping up the diamond monopoly given how that industry contributes to their economy. Unless you're really pushing the tin foil hat thesis, diamonds aren't surveillance devices, but there is still a large gov't interest in defending the monopoly.
Instead of communism what I think is worth looking at is Adam Smith's original vision of capitalism. As you likely know, Adam Smith wrote "Wealth of Nations" which laid out the core principles of a capitalist system. However, Adam Smith's vision was not contained in this one book. Rather, Adam Smith always maintained that to build a sustainable and socially beneficial economic system that you needed the basic capitalist system ("Wealth of Nations", 1763) together with the moral system which he detailed in "Theory of Moral Sentiments", 1759.
Because Adam Smith was never able to integrate the two systems of theory that he laid out, morality and capitalism, into one integrated system, there has always been controversy on how to build a sustainable moral economic system. In "Theory of Moral Sentiments", Smith emphasizes that it is sympathy that is a fundamental human motive, while in "Wealth of Nations", Smith instead says the motive is "self-interest". Obviously there is much ground between these two sides of human nature.
Business places a large emphasis on having a strong legal system. As without such a system, many business transactions would cost more, or simply be impossible. It was the Common Law, and strict adherence to it, that enabled a new era of business to flourish. And the Common Law is based on a moral system, much of which was laid out in religious teachings. Thus we can see that morality is the foundation of easy, low-cost, flexible human collaboration and exchange. Put another way, without a strong legal system, based on our moral system, there is no foundation for a mutually beneficial society.
The world has seen how a ruthless amoral company like Microsoft has flourished in a societal and business environment that has no underlying moral foundation. No matter what the cost to the individual and to society, because of Microsoft's monopoly, we are forced to pay the Microsoft tax. Not merely do we have to pay the tax, but in our brief lives, we also suffer the cost of the dearth of innovation that exists under the shadow of a monopoly. And it is not just Microsoft, but nearly all companies that extract money from their customers and deliver far less value than was promised. And today's governments deliver just a miniscule fraction of every tax dollar back to the people in the form of tangible goods and services. The rest disappears because of corruption.
Needless to say, we see in today's world that there is an ever increasing growth of corruption. This increase is due to the fact that the business world and legal system have dropped nearly all adherence to a moral system. Everything is amoral money-centric self-interest. And thus we end up with a corrupt system, an inefficient system, large-scale society ills and the widespread looting that is going on today. Ever wonder how Microsoft is accumulating cash so fast? Immoral monopoly pricing certainly helps. And the energy companies make Microsoft look like a beginner. Furthermore, because there is no care for the welfare of our fellow human beings, nor even any care for Nature herself, we have created vast environmental problems that have a profound negative effect on th
...note who said that..and where he is now. :-)
Personally, I dont give a rats ass.
Success will always come quicker to those who drop morality in business or any sphere. Business leaders already know this... it's impossible to run a large corporation without having the ability to justify immoral behavior.. ask IBM, ask Walmart, ask Apple, ask McDonalds....
It's like the school bully.. no, he is not really an insecure confused softy inside... he's just bigger than you are and knows it. This is not something specific to microsoft.. it has to do with power and those who wield it to show how they can wield it.
Note that you don't see microsoft trying to screw IBM or Sony or Coke in any direct fashion other than old fashioned competition. They know full well that they'd get their ass handed to them by an even bigger bully...
This has happened before, and it will happen again. When it happens to you, do what burst has done... try to take them on as best as you can. One of the weaknesses a bully has is that their strenth depends on fear.. show no fear.
I seriously doubt Burst.com didn't plan this.
How could Burst.com plan to have Microsoft conceal 35 weeks worth of emails?
(Well, they could still have been sued for anticompetitive behaviour, but not for outright theft...)
In exchange for their valuable services, they got official permission from their government to act in such manner: these were the "letters of marque".
Maybe the Open Source community should do something similar? Yes, Burst's behavior may look like patent privateering. But it is directed against the enemy. This can't be all bad ;-)