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Caldera vs. Microsoft Goes to Jury Trial
aculeus writes "TechWeb reports that Judge Lee Benson has dismissed all eight of Microsoft's motions for summary judgment on antitrust grounds, clearing the path for a trial to begin in Utah on Jan. 17. " Yes, the other court battle, the one that doesn't get talked about as much. The judge's decision to go with a jury means that he thinks that Caldera has basis for their legal complaints - a good sign, I suppose. The case itself is based upon Caldera's ownership of DR-DOS and fighting with Microsoft over that.
No, you are gravely wrong. It is much harder to buy of a judge than a whole jury, because...
Juries are extremely fickle. Microsoft will try to sway the decision by arguing, not facts, but that MS is unfairly beaten upon. The jury will then decide that it's true, why *should* these companies be allowed to keep suing MS for being successful, and Microsoft will get a vafourable decision.
-Brent--
I am a lawyer, but this is not legal advise. See a lawyer licensed in your juisdiction if you need some.
>What did they mean by "tying", as in what MS did
>to DOS and Windows 3.1?
U.S. antitrust law prohibits the "tying" of other goods to monopoly goods, even if the monopoly is legal. Tying is the refusal to by the monopoly good (DOS) unless the tied good (windows) is also purchased.
>Seriously, though, I wonder how many people
>believe that this is just a money-grubbing ploy
>that is just now being filed by spoil-sports
>Caldera? I mean, to the man on the street, I'd
>imagine that a lawsuit concerning competing
>brands of DOS is pretty silly.
Only until you explain it. DR-DOS had 10% of the market, and growing. It worked better.
What are the damages for stealing this? Ten per cent of today's desktop OS market?
It's the remedies that really become interesting here. How do you put DR-DOS where it would have been? A full, royalty-free, license to all windows source code? An ownership interest in ms to reflect that share of the OS market--which would then be tripled (as an anti-trust verdict)? Or perhaps just 10% (before trippling) of microsoft's DOS revenue since then?
Then again, maybe microsoft shows the allegations aren't true and wins . . .
I would say, offhand, that you've nailed the exact reason(s) why MS is in dire straits. You can only defend so many fronts at once; that's basic military strategy. No one company will ever be the end-all server / desktop / game / application / content author all at one time. They've simply spread themselves too thin, and are probably terrified to realize that they're now competing against extremely agile, tightly-written and narrowly-scoped projects, such as Sendmail, Apache, PS2, etc. (I deliberately left Linux and BSD out of this - I wouldn't exactly call them narrow in scope, although some might debate it).
No, I don't think that it's the DOJ who is writing Microsoft's eulogy. Their own half-baked global domination scheme seems to be doing it quite nicely.
Dewey, what part of this looks like authorities should be involved?
I'm a lawyer, but this isn't legal advise. etc. read the rest of the disclaimer elsewhere in this thread.
A summary judgment motion is an attempt to win without a trial. It claims that the evidence being offered by the other side, even if believed (at least the portions that a reasonable person could believe), isn't enough for the other side to win, and that judgment should therefore be entered now.
Microsoft filed separate motions for each claim made by caldera, claiming that that particular act didn't violate anti-trust law, and that therefore that portion of caldera's claim should be dismissed. On many of these, microsoft would be right if the facts were viewed on their own. However, it is the combination of actions (the course of action) that was called illegal, and thus microsoft failed.
Yep, in my second life I was one of the brave souls who installed DR-DOS and tried to run Win 3.1 on it.
There were minor compatability problems, but Digital Research (the DR in DR-DOS) had solutions for 'em.
Of course, telling a PHB that you have to tell the OS to lie to the application didn't go over well, and within a year we were a pure MS shop.
The DOJ suit was, well, interesting...but this one has teeth and claws. DR went bust, in part because of this, so there's definite claims for damages.
And as for the MS FUD of "it's old technology", dog $hit! Caldera is positioning DR-DOS as a low-end embedded OS. Think about it...an army of experienced programmers, a well-tested well-understood very small kernel. Makes sense.
Meow
Yes, that's really my e-mail. Don't change a thing.
I have to say that things are looking grim for Microsoft. First this, then today (according to CNN this morning) is also the day that the findings of fact for the main show are supposed to come out.
... Competitive! Ack! We don't want that.
Its going to be really interesting to see what happens. Most people seem to have pretty much accepted that Microsoft will come out on the bottom of the "Findings of Fact", and these are pretty difficult to challenge on appeal. In fact, the judge was apparently openly sceptical of Microsoft during the trial!
Personally though, I think the just punishment would be to make Microsoft port everything to Linux, including Bill G's "Smart House". Hold it... That would make them
Anyway... I really hope that they do something real this time, and not the kind of slap on the wrist they did in the early nineties -- they basically said "Bill, play nice now" and he said "alright dad" and that was the end of it.
What was absurd about that was that the original judge turned down the settlement as too lenient and they had to take it to an appeals court to get the settlement approved. Outrageous!
-- Slashdot sucks.
What did the breakup do for you and I?
Doubled the phone rates.
I think you are quite mistaken here. Phone rates have gone down dramatically, especially for long distance. Local rates were largely unaffected for many years because of the lack of competition at that level until recently. Now that there are CLECs giving the RBOCs competition, we are starting to see local rates go down as well. It has taken longer than it should at the local level, but I don't see any evidence in my phone bill that consumers have seen anything but benefits from the AT&T breakup.
> 95% of the people who hate Microsoft hate it because it's successful.
I'm not sure I believe this. It's certainly not the reason I despise them. (OK, maybe you weren't talking about me and my ilk -- you said hate, not despise.)
Also, don't forget that the media made BG a star a decade ago on account of his success. He was portrayed as a culture hero for being a nerd that dropped out of school and climbed to the top. Yes, I know he started higher up the slope than most of us will ever rise, but the media has always played that down. This does not sound like a jealous response to his success either.
I just don't think the jealousy explanation holds water.
I think geeks despise BG & MS due to the quality of their products, their tendancy to deliver denials and excuses rather than fixes, and the stiffling impact that they have had on various facets of the business. And admittedly for some selfish reasons too, because we don't want to spend the rest of our lives using and supporting crappy MSware.
And I think the same feelings are spreading into the non-geek population. Probably only a few understand the bit about stiffling various facets of the business, but many, many, many are getting sick of years of losing their work and/or waiting for a techie to come around and re-install Windows so they can get started reproducing that lost work, and all the while shelling out for product upgrades year in and year out, to the accompaniment of endless promises of "forget what we promised (and failed to deliver) last time -- this time it's really going to be everything you ever hoped for!"
The non-geek population aren't fools. They hear the "ease of use claims", and wonder why their computers are such a pain in the butt to use. Some of them try phone support, and find out first-hand what we geeks discuss in the forums. Some overhear tech support's wry comments about "you expect that kind of problem with Microsoft" (I heard that very thing this week, AAMoF.)
If Microsoft's success is to be blamed at all, it's not because of jealousy, but rather because success has made their warts available for close inspection by such a large portion of the public. If MS had directed some of the tangible rewards of their success into wart cures over all these years, they might now be one of the world's most loved corporations rather than one of the most despised.
--
It's October 6th. Where's W2K? Over the horizon again, eh?
Sheesh, evil *and* a jerk. -- Jade
I became aware of another potentially anti-competitive thing MS did some years back, which, as far as I am aware no one else has mentioned in the press before. If it wasn't anti-competitive, it was at least stupid, and MS users are the ultimate victims.
.BAK (first deleting any old .BAK file).
A standard proceedure for saving files used in "single user" apps, like word processors and spreadsheets, was developed many, many years ago, and used almost universally. The proceedure was you DON'T just overwrite the old file, you do the following:
* write the new file to a temporary file name
* Delete the old file -- or rename it to
* Rename the temporary file to the original file name.
This made sure that at no time was the only copy of the file on the disk deleted or dammaged. If the program crashed durring the save cycle, the original copy still existed. Great idea. Saved a LOT of people, and this is why it was used almost universally, and at Microsoft through Office v4.3.
Starting with Office 95, however, they changed the saving proceedure:
* Reset file pointer to beginning of file
* Overwrite existing file with new data
Obviously, this leaves the system at a fairly delicate point, should the app or OS crash after the file has started to be overwritten.
So far, things look just stupid. However, if we remember one of MSs chief rivals, Novell, and a feature of Netware 3.x and above, things look a little less innocent. Netware has a very nifty "undelete" feature, they refer to as "Salvage"ing files. Unlike most other OSs where this feature is provided by third party add-ons, with Netware, this is a CORE part of the OS. A deleted file is marked as deleted and put into the free disk space pool, but it isn't overwritten until the entire disk has been used, at which point the oldest deleted files are overwritten (Actually, Macintosh does much the same thing). Novell provides you a nifty utility (SALVAGE in NW3.x, FILER in NW4+) which can bring these files back up to the point they are physically overwritten (or Netware is told to "PURGE" the deleted files).
This is a really neat feature, or at least, WAS until MS re-did their file writing process. This ment you could bring back virtually ANY revision of a document, often weeks old. File get corrupted at 4:00pm? Don't loose an entire day's work by going to last night's tape, just SALVAGE the previous save! As far as I am aware, no other common OS has this kind of recovery feature standard (as I indicated earlier, Mac has 90% of it, but you have to get a third party program to actually recover the file). This was a clear advantage of Netware over NT as a file server, and it is something I walked people through many times, to much praise, I might add. 8) Obviously, SALVAGE doesn't replace a good backup system, but it is an appreciated feature.
It doesn't work any more. Word and Excel in Office 95 and later seem to go out of their way to never "Delete" the old file (thus, making it availble to SALVAGE). I'm not pleased with this. And, knowing Excel's tendancy to corrupt files, it is a very sorely missed feature.
In case you were wondering, Lotus Smart Suite DOES follow the "Temp file/Delete/Rename" proceedure, so it isn't an issue of Windows 9x API.
As I said, I can't prove that it was an attempt to minimize a Netware feature or if it was simple incompetence, but it is gone. It appears that MS has shot themselves in their customer's foot.
Nick.
I think this is one of the motions that the judge turned down because of bigger anti-trust issues, no?
The issue, for some, isn't the market value of DR-DOS, but rather a consistent pattern of behavior on the part of Microsoft. The current value of DR-DOS is a symptom, not the core issue.
--
It's October 6th. Where's W2K? Over the horizon again, eh?
Sheesh, evil *and* a jerk. -- Jade
in the 50's, when you more or less HAD TO buy Ford if you were in US.
Ford lost their dominance of the US auto industry in the 1920's and 1930's. The companies that would be put together to build General Motors were able to push Ford into second place because Ford was too slow to improve their designs. Who would buy a 4 cylinder Ford Model T, which was available only in black when you could get a 6 cylinder Chevrolet in any one of several available colors for only a little more money?
Frankly, there was a lot more competition in the US auto market in the 1950's than there is now, in that there were 7 or 8 credible players (GM, Ford, Chrysler, Nash, Hudson, Studebaker, Packard, etc) and now there are only 3. Of course even that is a much better situation than what we have in the desktop OS and desktop office software markets, because even at their strongest, none of the big 3 auto makers controls more than 50% of the domestic market, and that is without considering competition from imports.
It would be nice if the computer industry was able to self-regulate that way, but it doesn't seem like it can when the only OS that seems to be able to make any headway against Microsoft is one that is essentially available for free.
The Register has been posting snippets of some of the MS-internal e-mail that has been revealed by the case.
Interesting reading, indeed.
--
It's October 6th. Where's W2K? Over the horizon again, eh?
Sheesh, evil *and* a jerk. -- Jade
Well, what is good for most people isn't always good for everyone. I think that in general most consumers have benefitted from the breakup of AT&T, but as you note, that may not have been true for everyone. Unfortunately, the $3 long distance network access fee you are talking about isn't even something that is imposed by the phone company, but rather a sort of tax imposed by the feds.
I'm going to summarize some thoughts expressed in this and the other MS/legal thread, and speculate.
Let's look at it like MS getting it's fingers tied off and immobilized, or at least impared:
1. DoJ trial is giving MS fits, despite the spin-doctoring. Exposure of arrogant attitudes towards gov't investigators and some really weird Alice-in-Wonderland shenannigans.
2. This case now going to trial with some very specific legal meat wrt provable anti-trust actions on MS's part.
3. Win2k not being all that MS promised - more vaporware-type pronouncements from MS. Ship-dates slipping and features being dropped.
4. Corporate IT folks more concerned with Y2k fixes rather than going through another Sisyphus-like upgrade dance wrt NT 4.0 -> winy2k
5. More and more high-profile hardware vendors slipping into bed with Linux/*BSD for a quickie - and realizing it feels better.
6. More and more anti-MS press - not just the usual complaints, but talk about Alternatives!
7. Linux, and as a result other alternatives oses, getting a lot of media attention as well as financial/corporate recognition.
Hmmmm..... seven fingers? Not too bad. With that much clout tied down or impared, I think the time is just right for even more alternative os business planning on the part of the major hardware and applications vendors.
Even if the trials that MS is involved in last for months, or years, this is still good. The more MS is distracted, the more mistakes it will make - publicly. The more distracted MS is, the more breathing room hardware vendors will have to really look at alternatives - and promote them. And, more importantly, the more time alternative oses have to make inroads on traditional MS territory, the less impact, economically, a break-up of, whatever-punishment for, MS will have.
Nothing new here, but just my Friday $0.02.
"shop smart:shop s-mart" ash
On the other hand, the competitive long distance networks coming into existance is one of the things that made the growth and commercialization of the internet possible. If you look at the big backbone bandwidth providers like MCI WorldCom, Sprint, AT&T, etc, they are almost all outgrowths of long distance providers. Without the breakup of AT&T, it is likely that there never would have been a competitive market for data networks and the internet as we know it would not have been commercially feasable.
I am a lawyer, but this is not legal advise. If you need some, see a lawyer in you own jurisdiction.
That a jury will be empaneled means two things
1) that one party ortheother demandeda jury,
and
2) that there are "questions of fact" to be determined--i.e., someone needs to determinewhich sides' version of what happened is true.
In the DOJ case, the judge was also the trier of fact (2). In this case, my guess (someone can go to the courthouse and check the pleadings to make sure) is that Caldera demanded the jury, expecting sympathy for the little guy (if I represented ms, I would want a bench trial [judge instead of jury]).
Once the jury decides the facts, the judge will then decide how the law applies to the facts.
The way the judge's opinion would enter at this point is in a ruling for summary judgment. If the facts as alleged by caldera were insufficient for caldera to win, the case would be dismissed. This could also happen if the evidence produced during discovery showed that no reasonable jury could find in caldera's favor.
[replying to myself] See the very end of my post. This is the summary judgment motion. The basis of microsoft's motions were to claim, act by act, that the acts were insufficient to show abuse of monopoly power. The strategy was to eliminate each act from the case on its own.
The problem is that caldera wasn't suing for a bunch of different bad things, they were suing over the course of action consisting of *all* of the bad things *put together*. Once more, microsoft seems to have been represented by the law firm of Larry, Mo, and Curly . . .
On the fact that Windows 3.1/95/98 are NOT OSes and are simply GUIs running on top of MS-DOS. Maybe they'll file an injuction so MicroSoft has to call it the Windows GUI System rather then the Windows OS? *S*
Cullinan reiterated Microsoft's position that Caldera's claims are ... based on an attempt "to get money from Microsoft."
Well, I figured that we were well past the "suing for an injunction stage".
Furthermore, he said the case is about obsolete technology.
I guess this wouldn't be the first MS person to admit it.
Seriously, though, I wonder how many people believe that this is just a money-grubbing ploy that is just now being filed by spoil-sports Caldera? I mean, to the man on the street, I'd imagine that a lawsuit concerning competing brands of DOS is pretty silly.
There were a couple of items that I'd appreciate some clarification on:
I'm quite sure that some of this has been hashed out in great length already. Therefore, a synopsis or a pointer to the discussion would be very welcome.
Dewey, what part of this looks like authorities should be involved?
Regardless of if Microsoft is a monopoly in the desktop market, can they win every battle they've chosen to fight?
In the handheld market Palm is not only surviving against Windows CE, but thriving. A few years ago a lot of people took it for granted that Palm would be road kill. Now if you were developing for the handheld market you wouldn't think about ignoring Palm's huge market.
In the low-end server market NT continues to be strong, but Linux & the BSDs are making progress in shops which a few years ago wouldn't have chosen anything but NT. Cost of the OS and the lower system requirments make NT a less attractive alternative to a lot of people.
In the high-end server where cost is less of an issue, the commercial Un*x makers & OS/390 continue to be the standard. They've got amazing reliability and can deal with many more users than NT currently can.
In the gaming market Microsoft is aparently fearing the growing power of game consoles like the PS2. Now they're reportedly making an entry into that market as well.
The desktop is one area where Microsoft really isn't facing a competative threat. Here the government & Caldera are persuing them for antitrust violations.
On the portal phase I don't think MSN has ever turned a profit despite a large amount of investment by MS.
Sure, MS makes tons of money and they certainly won't disappear from the market, but can even they fight so many battles? How much money can they spend on new markets, lawyers, & unprofitable segments before the markets they currently dominate start to suffer?