Should We Follow Novell v. MS in Detail?

e6003 writes "Groklaw has a fascinating article written by a retired attorney. In short, he believes FOSS advocates should be following the recently announced Novell anti-trust case against Microsoft with as much vigour as we do the SCO-IBM case. Whilst the latter is to all intents and purposes settled in favour of the Good Guys, the article points out how Novell v. MS is far harder to call. Evidence produced during this new case, he argues, may be valuable for proving anti-competitive intent on Microsoft's behalf should MS (or a proxy) go on a patent rampage against FOSS. Finally, the article points out that Microsoft either destroys evidence itself (see the Burst.com case) or requires evidence to be destroyed as part of settlements (as in the Caldera DR-DOS case)."

Comments

Can anyone tell me...

[Aneurysm9]

why anti-competitive intent would have any bearing on a patent suit? Aren't patents intended as monopolies that will be used, at least in many cases, anti-competitively?

Re:Can anyone tell me...

[Nikker]

I know its not really the 'thing to do' but I RTFA.

What it is about is starting a repository where data about all companies can be stored.

As it shows in the article companies (i.e. M$) destroy all of _their_ copies of data and otherwise, meaning that if in the future there is a problem we will have no proof in a court of law those events occured(Those 'haloween' emails for example) By making a repository where we can keep them we will alway be able to pin M$ to the stake rather than letting them get away on technicalities

This will help FOSS as it will be a very good way to keep companies on their toes and know once something makes it to the public domain it will never be forgotten. And as well TFA also states that this case envolves ENORMOUS amounts of emails and other info that will most certainly be *DESTROYED* after the final judgement

If this data can some way be preserved then if we need it to show as an example of oh well lets say monopolistic behaviour, we can show it as we can all guarentee M$ will sweep that puppy under the rug as soon and as quickly as possible.

The "Good Guys"

[Dancin_Santa]

This phrase is so loaded that it's hard to broach anything resembling a middle ground here. If you refer to Microsoft as the "enemy" and everyone else (excluding SCO) the "Good Guys", how can you expect to be partial when delivering judgement.

Take a look at what's going on in Iraq. The American "Good Guys" are wiping out the "Bad Guys". From the other perspective, the Iraqi "Good Guys" are being slaughtered at the hands of the American "Bad Guys". It all depends on your perspective. Until you give up the notion of "good vs. evil" in your considerations, you will never be able to find a common ground and eventually peace.

You have to understand that not only are Microsoft and Novell's hands completely clean, they are not completely dirty either. The Iraqi resistor may be shooting at the American soldier because he believes that the occupation is unjust. The American soldier may be shooting back only because he has been trained to kill instead of think. Each one has their reasons, and to them, their actions are perfectly reasonable.

Until you can find a way to reason with the "enemy" and truly come to an understanding, you will never win. You will only fight.

There's an old saying, "The only way to destroy an enemy is to make him your friend."

Re:The "Good Guys"

[mrchaotica]

So, we aren't allowed to define "bad guys" as "guys who try to pervert the law in order to accomplish something in direct opposition to it's spirit?"

Re:The "Good Guys"

[djradon]

It's hard to sympathize with any company whose actions have been so underhanded . They ruined their own business a long time ago, and their current legal manuevering is at best an ugly money grab.

But it seems the impact on Linux will be, at worst, a re-write of any SCO-owned code, should any be found.

FOSS will never die.

Re:The "Good Guys"

[lobsterGun]

The parent post typifies relativism at its most boring.

It denies that there are just causes that are worth fighting for. What a sad world this would be if it were true.

Re:The "Good Guys"

[subsoniq]

The Iraqi resistor may be shooting at the American soldier because he believes that the occupation is unjust. The American soldier may be shooting back only because he has been trained to kill instead of think.

Now just hold on here a second, this sounds like a loaded statement. I served 8 years in the US military and I can say that one of the things they train you on quite a bit is conduct in war, especially the Geneva Conventions and the Laws of War. To insinuate that American troops are trained to shoot first and ask questions later is bullhockey, the military spends a lot of money on training it's personnel about how to deal with combatants and non-combatants. Just because one individual might ignore all the training he's received doesn't mean the entire US military is made up of blood thirsty monsters looking to kill anything in their path. Your statement certainly appears to point to that conclusion, and if that's not what you meant then I apologize for the rant. But on the other hand if you're the type to blindly make assumptions about well over a million Americans serving their country in the armed forces, then you, Sir or Madam, should go Fuck yourself. Pardon the language.

Sounds like a good idea to me!

[mrchaotica]

From the article:

At a minimum, following this case will help prepare us better to understand the IBM unfair competition counterclaims in the SCO v. IBM case. But even better, evidence of such tactics can establish Microsoft's improper motives as part of an unfair competition defense to later Microsoft lawsuits or legislative attacks on FOSS, such as lawsuits asserting Microsoft's alleged intellectual property rights like patents and copyrights as weapons against FOSS. The existence of such a database may also to some degree deter Microsoft from pursuing such tactics.

<snip>

A public and freely available repository for such evidence would be an incredible resource for FOSS lawyers, developers, and users likely to need such evidence in the future. Unfair competition defenses to IP lawsuits require, by definition, that the motive of anti-competitive acts be proved. The acts must not only be proved to have an anti-competitive effect, but also that they were knowingly intended to have such effects. Bear in mind that it's a truism of anti-trust litigation that even lawful acts taken for an unlawful anti-competitive purpose are unlawful.

Anything that we can use to defend ourselves against Microsoft is a good thing in my book!

[I'm not the most impartial person around, of course...]

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:yes evidence!

[mrchaotica]

The other reason this is important is that (according to the article) Microsoft tends to destroy evidence at the conclusion of each anti-trust case. So apparantly unless we collect it at Groklaw, it will be gone by the time we really need it.

Patents and antitrust

[tepples]

Anticompetitive misuse of a given patent attracts more researchers to search for prior art that would invalidate that patent. In addition, 35 USC 271(d)(5) implies a narrow exception to the definition of patent infringement where one with "market power" (that is, a monopolist) ties the purchase of a patented product to another specific product.

Canopy, not Microsoft, requested destruction

[rufusdufus]

If you read the sources carefully especially this you will see that it was Canopy, the successors of Caldera that wanted to destroy their evidence because it was costing them too much to maintain it, and they didnt need it anymore because their case was finished.

The key line is "The Canopy Group, Inc. ("Canopy"), filed a motion to this court seeking permission to dispose of hundreds of boxes in its possession..", "the primary issues relate to Canopy's desire to avoid further burden and expense.."

The sort of fudging of facts in the headline here is how you get people who are nearly insane with hatred who post here making the linux crowd look totally unstable to the mainstream.

A railroad bridge case....

[Anonymous Coward]

Back in the bad old days of the railroad - one of the barrons bought up much of the 'good' crossing point land up and down a river. This allowed said barron to 'have control' over access. Eventually the courts declared that the other railroads could not be denyed the crossing point under the idea that access to critical resources can not be denied.

It is possible this chestnut could be dusted off and used VS Microsoft.

Destruction of Evidence is very very risky

[UnapprovedThought]

Naturally, if the evidence is destroyed, there is no evidence to show that there was evidence, unless someone speaks up.

But, the trouble with this approach is that somebody always saves evidence, either through sloppiness or because something gets written in the margins of a technical manual, etc. Thus, not everything gets shredded, so that this gambit has its risks.

Even as we speak, there may be an MS employee, or former MS employee holding the key to all of this. This is pure speculation of course, but maybe the reason Novell is on this trail is because it knows such a person. Even if that person has signed all the NDA forms in the world, such a person might still be willing to come forward in exchange for some immunity.

Re:yes evidence!

[IntlHarvester]

I'm not clear on why Novell vs Microsoft is more interesting than Sun vs Microsoft or AOL/Netscape vs Microsoft (both mostly ignored on Groklaw & Slashdot). Or why anyone thinks the result will be any different than those two (cash + technology cross-licences).

I guess it will be interesting to hear in gory detail how WordPerfect blew a dominant market position through bad programming and bad marketing and about Microsoft's usual tricks. Also I sincerely look forward to the OpenDoc flamewars.

Re: Aneurysm9 just had #10

[Stuart Poss]

Don't mean to be rude, but why does little stuff like corporate patent law even matter when we now live in a society where the House Majority Leader can remain in his position even when indicted?

You are joking aren't you, or is this just another attempt to look away from the larger issue that such disputes are now just arbitrated in favor of the highest bidder or are just to be debated into sterility on TV or the internet in a way that diffuses any focused collective effort at intellect? Let's not think, as otherwise we might find out its too late! Great motto, I'll be home with the pretzels eagerly awaiting the rapture.

Can anyone name a successful dialog turning back the Darwinian tide?

Don't you just love how this is all turning out.

Do hope you recover soon.

Remember to pray for those who don't pray for DeLay. After all they are just aiding and abetting aren't they, and to aid and abet a crime is a sin, no? May god have mercy on their souls.