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Burst.com and Microsoft Settle

Posted by timothy on from the legal-shenanigans dept.

prostoalex writes "Microsoft and Burst.com announced a tentative settlement, where Microsoft will pay Californian company $60 mln for allegedly stolen multimedia streaming software. Robert X. Cringely provided the recap of the court case back in 2003 (and Slashdot discussion ensued). According to Burst claims, Microsoft entered a non-disclosure agreement with the company to learn about Burst's multimedia streaming technology. Later the technology, for which Burst has 37 patents, has been found in Windows Media Player. When aksed to present the archives of the e-mails and all communications within the company for the trial, Microsoft somehow presented all the documents that preceded before the deal and the documents that followed it. The e-mails during the 35 weeks that negotiations were held mysteriously disappeared. In court Microsoft claimed the e-mails were erased from employee's desktops, e-mail servers and server backups. The technology was not interesting to Microsoft, lawyers insisted, so the electronic trail of communications was erased."

24 of 226 comments (clear)

  1. How does one... by maotx · · Score: 5, Insightful

    In court Microsoft claimed the e-mails were erased from employee's desktops, e-mail servers and server backups.

    I don't know how Microsoft's IT structure works but I know at where I work we have snapshots of all of our data done every week and held for a month. Then at the month limit we archive our data for another year. Not to mention the nightly incremental backups. Essentially we can go back to any time of a week for a month, then in month increments and recover that snapshot.

    I guess what I'm getting at is how exactly does a company lose "uninteresting" data spanning a period of 35 weeks unless it's intentional?

    It would be near impossible for someone to cover ones tracks without going through only God knows how many tapes and erasing said data.

    --
    I'm a virgo and on Slashdot. Coincidence? Yes.
    1. Re:How does one... by kegwell · · Score: 5, Funny

      Micro$oft is just too embarrassed to admit their Exchange server crashed. ;-)

    2. Re:How does one... by Jason+Earl · · Score: 4, Insightful

      It's quite simple. The loss of the data wasn't unintentional, rather it was deliberate. Microsoft simply went in front of a judge to see if he would buy the story, when he didn't and a jury trial was emminent, Microsoft wisely settled. Microsoft's, "the dog ate my homework," defense was a long shot, but Microsoft spends a lot of time in the court room, and it can't really afford to roll over every time someone sues.

    3. Re:How does one... by DNS-and-BIND · · Score: 4, Insightful
      Duh.

      MICROSOFT LIED

      Of course, they got caught, and settled out of court for an appropriate bribe (err...settlement)

      You'd be surprised how often this works. The cost of further litigation only enriches the lawyers, not the shareholders involved.

      PHB1: How much is this gonna cost us?
      Accountant1: $XX
      PHB2: Let's lie and say we lost the emails. How much will this cost us?
      Accountant1: The same as if we bribed them (settled)
      PHB2: OK, let's see if this 'dog ate my homework' defense actually works...sometimes it does!

      (time elapses)

      PHB1: It didn't work. Release the bankers!
      Accountant1: OK!
      PHB2: We sure have fulfilled our obligations regarding our shareholders!
      PHB1: Amen, brother.
      Accountant1: Whatever you say!

      --
      Shutting down free speech with violence isn't fighting fascism. It IS fascism!
    4. Re:How does one... by pete6677 · · Score: 3, Interesting

      I think Microsoft realized that settling was a better option that facing obstruction of justice charges and then probably losing anyway. In this day and time, it's pretty much expected that big companies will pay out the occasional settlement for some wrongdoing, but criminal charges tend to result in a drop in stock price, along with possible jail time for certain executives.

    5. Re:How does one... by mapmaker · · Score: 5, Informative
      Microsoft claimed that they deleted the emails intentionally because Burst's tech was worthless, so there was no point in saving the emails.

      This story almost worked, but then Burst's lawyers remembered that during the SUN/MSFT trial, Microsoft testified that ALL company email was backed up off site. So the judge ordered Microsoft to search the backups for the missing emails.

      Skip ahead half a year, and Microsoft claims in sworn testimony that they can't search the backups, because each company employee can choose which backup server they wish to archive on, and the company doesn't keep a master list of who's emails are on which server.

      Burst's lawyers then start subpoening the backup site employees, and get testimony from the woman in charge of email backups. Her name is Candy Stark. Candy's testimony was "Oh yeah, of course we've got a master spreadsheet that matches employees to servers. How else could we search the backups? Here it is right here."

      This past Thursday was when the hearing was to take place that would seal the fate of the Microsoft executives who'd given false testimony about said backup list. It was also probably going to result in the judge ordering Microsoft's backup servers seized by the court and searched by a third party. Not surprisingly, Microsoft settled 1/2 hour before that hearing was to start. Surprisingly, and unfortunately for BRST shareholders like me, the amount they paid to settle was a pittance.

      If you'd like to really dig into all the dirty detail of this lawsuit, go dig into the posts at Yahoo's BRST message board, or check out burstinvestors.com which is a site set up by one of the longtime BRST shareholders.

  2. A missing email! by ackthpt · · Score: 3, Funny
    The technology was not interesting to Microsoft, lawyers insisted, so the electronic trail of communications was erased."

    Strange, I found this one in my box a few years ago...

    To: Windows Media Player Department Head
    cc: Department of Things That Actually Work The First Time Head

    This patented technology for increasing the efficiency of video and audio streaming looks great. Since we're such a big company and with our Bucket o' Lawyers we could drive anyone into the ground for having the temerity to sue us for IP theft, let's just co-opt it like we do everything else.

    By the way, how is it going with that project for selectively deleting emails from all mailboxes, archives, backup servers, backup tapes? Why don't you pick something out and just give it a test run.

    -Bill
    --

    A feeling of having made the same mistake before: Deja Foobar
  3. Shows the fluidity of the law by filmmaker · · Score: 3, Insightful

    Microsoft should see its day in court for this. This case was so clearly predatory and demonstrates the continued belligerence of Microsoft and its corporate strategy. I'm not sure if Burst.com decided that it was too expensive to take this to court, or if Microsoft simply made them an offer they couldn't refuse. Just shows how fluid the law is when there's enough money in the equation. With settlements being the de facto standard response to criminal corporate behavoir, it's no wonder anti-social companies like MS are more and more common - meaining known to the public to be criminals. What really blows me away is the public acceptance, or at least apathy, of companies like MS because it's more practical to look the other way.

    --
    I Want To Believe
  4. It's interesting... by xeon4life · · Score: 4, Interesting

    How they attack Microsoft, as their patents can apply to many other multimedia streaming. Who knows what else can be targeted? WinAmp? Hopefully not.

    Companies that exist for the sole purpose of patenting ideas and sitting on them disgust me.

    --
    Real programmers can write assembly code in any language. -- Larry Wall
    1. Re:It's interesting... by Anonymous Coward · · Score: 5, Insightful

      well you're wrong. Burst was not just a patent company, they developed and produced a product, they did not just patent ideas.

      Perhaps you should be worrying about Microsofts actions and seeming lack of punishment instead.

      Microsoft disgusts me.

  5. New version of Clippy by bigtallmofo · · Score: 5, Funny

    The missing emails were actually attributed to a rarely-used update to Outlook's Clippy-assistant:

    "It looks like you're being sued. Would you like me to delete all correspondence related to the lawsuit?"

    --
    I'm a big tall mofo.
  6. Proper Usage by rincebrain · · Score: 3, Informative

    The reason they couldn't find the e-mails is that they didn't "aks" the right question.

    --
    It's only an insult if it's not true.
  7. Trivial software patents are bad... by Rattencremesuppe · · Score: 5, Insightful
    ...unless Microsoft is sued?

    Double standards, anyone?

  8. Yet another case MS doesn't take the fault by Anonymous Coward · · Score: 5, Insightful

    Seriously, this is getting tedious.

    This case had all the indications that MS workers would finally be found guilty of perjury and sent to jail.

    And if they were found guilty of perjury, I would really like to see the crooks doing hard time. In fact, I wish some DA picks up the leads (even after the settlement) and investigate what would possibly be the most blatant case of lying to a Court Judge we have notice of.

    Then comes money and it's all forgotten. Now they can go on and do the same thing to the next victim they can find.

    Someone define Justice for me, please.

  9. Re:again... by Anonymous Coward · · Score: 4, Interesting

    Given that Burst holds mostly trivial and evil software patents (send bursts of data when network conditions are good... GENIUS, I'd NEVER have thought of that! (that's sarcasm, BTW...)), this is pretty much one thief and another, much larger, thief, not a "good guy vs. bad guy" thing.

  10. great company by zerkon · · Score: 5, Funny

    I don't think I want to buy software from a company that randomly loses data... oh wait I dont

    --
    The Answer
  11. Breaking the law for fun and profit by voisine · · Score: 4, Insightful

    Once again Microsoft learns that laws are now impediment. Everyone complains about their illegal business practices, but why shouldn't they do what's illegal? It's not like they hide it. They simply say, yes we broke the law and we accept the penalty because the penalty doesn't even come close to the amount of money we've made from the illegal practice. Time and again they learn that our legal system is totaly incapable of punishment or correction for mega corporation like them. I say bravo for providing such a vivid demonstration of how broken our legal system is. If it's brokeness is not plainly revealed, it'll never get fixed.

    1. Re:Breaking the law for fun and profit by Tenebrious1 · · Score: 3, Insightful

      They simply say, yes we broke the law and we accept the penalty because the penalty doesn't even come close to the amount of money we've made from the illegal practice.

      No, the legal system is not broken, the settlement shows that the law worked as it should. Microsoft saw that there was a good chance they would lose the case and face heavy fines and penalties, and thus they chose to offer a settlement. Burst could have declined the offer and allowed the law to work, but they chose to take the money and run. That doesn't mean the law is broken.

      In accepting the settlement Burst dropped the claim of copyright infringement. Remember, copyrights are infringed only if it's unauthorized. If Burst accepts the settlement they're authorizing MS to use the code and thus there is no copyright infringement. This time the law worked as it should.

      --
      -- If god wanted me to have a sig, he'd have given me a sense of humor.
    2. Re:Breaking the law for fun and profit by nagora · · Score: 4, Insightful
      No, the legal system is not broken, the settlement shows that the law worked as it should.

      No it didn't. The law pretends that corperations are legal entities when it wants to protect execs from taking responsibility but when a company comes up in court over and over again it doesn't get three-strikes rules or any of that shit you or I would get. Just one more slapped hand. Again. That's not how the law should work.

      If Burst accepts the settlement they're authorizing MS to use the code

      No, they're accepting that they have to let MS do that or become a company that has no resources other than those needed to fight their case. They look like they would win after a decate or so in court, but maybe they don't want to do that; aybe they're rather get some work done.

      TWW

      --
      "Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
  12. Really, this is nothing new by iced_773 · · Score: 4, Insightful

    Remember, way back in the Win3.x days, that whole thing about DoubleSpace and Stacker? These things have happened before, and they will probably happen again.

  13. Big mistake by WindBourne · · Score: 3, Insightful

    They should have held out for more than a billion. The fact the MS deleted the e-mail says they were horribly guilty. In addition, this is one area that MS is trying desperately to win. It is easily worth several billions to MS.

    --
    I prefer the "u" in honour as it seems to be missing these days.
  14. The Corporation by mabu · · Score: 3, Insightful

    After watching the great documentary The Corporation, all of this makes sense, since the government basically has given corporations all the rights of humans, but none of the responsibility or accountability. So Microsoft can blatantly spit in the face of court subpoenas and suffer virtually no consequences. Sad, but welcome to the 21st corporate-centric century.

  15. mln? by Dun+Malg · · Score: 3, Insightful
    "will pay Californian company $60 mln "

    Gods damn it, you ADD children with your IM and SMS vocabularies need to stop making up your own abbreviations when talking with regular people. Appropriate abbreviations for "million" are "mil" or "M". Saying "mln" is just ignorant.

    --
    If a job's not worth doing, it's not worth doing right.
  16. The SCO connection by div_2n · · Score: 5, Interesting

    It could be just coincidence, but Burst.com is also a company held by Baystar Capital. These are the people responsible for $50 million in funding for the SCO legal case against IBM over Linux. But then you would have to believe that when Microsoft helped Baystar and SCO meet was a coincidence. And don't forget when Microsoft bought $12 million in SCO licenses when they didn't need them.

    And who can forget when Sun bought SCO licenses too and then less than a year later, Microsoft and Sun were best friends and settled their lawsuits with each other.

    Maybe some of this stuff is a coincidence and then again maybe none of it is. I find it hard to believe that all of it is a coincidence though.