IBM testimony sets scene for attempt to prove Microsoft monopoly

Somewhat hampered by the O word, Soyring goes in to bat

  • alert
  • submit to reddit

High performance access to file storage

John Soyring, previously in charge of IBM OS/2 development, had an unhappy role to play as the representative of a company humbled by Microsoft's business practices. His written testimony contained a gloomy history of the rise and fall of OS/2 - down to 6 per cent of sales in 1996 compared with Microsoft's 92 per cent, according to IDC. Soyring's testimony pointed out that "many of the agreements under which Microsoft licenses tools to ISVs restrict use of the tools to developing for Windows", with the consequence that developers often could not use the same tools to develop for OS/2. Microsoft swiftly pointed out that IBM did exactly the same thing, but failed in its marketing efforts with OEMs when it had the opportunity - and of course it did not help when the PC Company went with Windows early on, and subsequently with IE. Soyring drew attention to a Microsoft trick - including redistributable code which made it very difficult to port applications to OS/2. The bottom line was that Soyring admitted that ISVs "have no commercially viable choice but to license Windows and to offer it on the vast majority of PCs they ship." Soyring continued with a litany of problems that confronted IBM, and which it usually had not had the foresight to avoid. The clincher, of course, was the impossibility of duplicating the functions of several thousand APIs that can be changed by Microsoft as it wishes. IBM's Web Explorer browser was separate from OS/2, but it was soon technically outmoded. Microsoft attorney Steven Holley tried to show that the browser was integrated into OS/2, since IBM's promotional literature speaks of browsing being "integrated" and "built in" to OS/2, but the argument was too thin. Soyring said that this was marketing language and not a technical description. The real point of Soyring's testimony was to set the scene for a proof that Microsoft has a legal monopoly in Windows. The sub-text of his written testimony was that there is an extremely high barrier that prevents new entrants from competing with Microsoft. The implication was meant to be that if IBM could not manage it, nobody could - but this argument is flawed because of IBM's management mistakes with OS/2. The point of the tools argument was to give evidence of another kind of barrier to market entry erected by Microsoft. IBM has also had the chance, if it believed that Microsoft was acting illegally, to take on Microsoft in the courts with a private antitrust action, but chose not to do so. Soyring also elaborated on the combining of Windows with IE, observing that "It can be done in ways that make it relatively easy or relatively difficult to separate them" depending on how tightly the developer wished to integrate the programs. Soyring also testified that "Microsoft does not provide on a timely basis the information that would be required" for the development of any competing product. At first, this might seem to be unsurprising, but there is a body of law concerned with the abuse of a dominant position (especially in Europe) that makes such practices anti-competitive if carried out by a dominant player. Soyring did a good job of setting out the issue of the first screens. Testimony from a company like IBM is likely to influence Judge Jackson, especially as it was given in a cool way as part of an historical account of what happened, without hype or any hint that IBM might later be seeking damages. Soyring's testimony elaborated the dynamics of the marketplace, and in one sense at least, Microsoft could use the example to its own benefit: "see what happened to mighty IBM with its operating system when IBM was a stronger brand than Microsoft: the same could happen to Microsoft". IBM's actions also gave Holley the chance to suggest that IBM's customers must prefer Windows as IBM loads it exclusively on its PCs, and not OS/2. The second day of Soyring's cross-examination, which concluded yesterday, was notable for Judge Jackson's sustaining a DoJ objection to a question by Holley. "Do you think it's appropriate, Mr Soyring, for six of the largest software companies in the world to agree with each other to collude with one another against Microsoft?" We shall never know Soyring's opinion on this, which is a pity. His then-boss John M Thompson, IBM's software group executive, emailed Sun CEO Scott McNealy on 13 August 1997, saying: "we must minimise the performance gap between Microsoft's implementation [of Java] and the implementation shipping with Netscape's Navigator. We must engage our other partners to bundle Navigator and/or Java-compatible JVMs with their products." Thompson suggested that he would call Eric Schmidt at Novell and asked McNealy to call Larry Ellison at Oracle and get Ellison to call Apple. Thompson's message also suggested that the collaborators "put Microsoft on the defensive" over Java. Microsoft would of course like to prove a conspiracy against it, but despite producing Thompson's email, it was just the usual Microsoft refrain that nobody loves Microsoft. There is no legal problem with a collaboration where the collaborators do not have dominant market power, and Microsoft's basic line of defence that "everybody does it" is legally unhelpful to its defence. Holley tried to play the card that the six collaborators eclipsed Microsoft in terms of combined revenue, but lost the point when Soyring snapped back "except in market capitalisation." Holley also introduced an email from IBM Internet strategist Rodney Smith to Sun VP and Java general manager John Kannegaard about a plan for Sun and IBM to collaborate broadly. Holley asked Soyring if the email concerned an agreement Sun had with IBM not to enter the database business or the systems management area, but Soyring said he did not know. Judge Jackson evidently did not like Holley's line of questioning, since he called the lawyers from both sides to the bench and recessed the court. It is likely that he admonished Holley, since there appeared to be no other reason to recess. Frederick Warren-Boulton will be cross-examined today. His evidence is directed at proving, legally, that Microsoft is a monopolist and that it uses its monopoly power to lever itself into other markets. ® Complete Register trial coverage

High performance access to file storage

More from The Register

next story
Sorry London, Europe's top tech city is Munich
New 'Atlas of ICT Activity' finds innovation isn't happening at Silicon Roundabout
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Dropbox defends fantastically badly timed Condoleezza Rice appointment
'Nothing is going to change with Dr. Rice's appointment,' file sharer promises
Audio fans, prepare yourself for the Second Coming ... of Blu-ray
High Fidelity Pure Audio – is this what your ears have been waiting for?
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
Zucker punched: Google gobbles Facebook-wooed Titan Aerospace
Up, up and away in my beautiful balloon flying broadband-bot
Apple DOMINATES the Valley, rakes in more profit than Google, HP, Intel, Cisco COMBINED
Cook & Co. also pay more taxes than those four worthies PLUS eBay and Oracle
It may be ILLEGAL to run Heartbleed health checks – IT lawyer
Do the right thing, earn up to 10 years in clink
prev story


Securing web applications made simple and scalable
In this whitepaper learn how automated security testing can provide a simple and scalable way to protect your web applications.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
HP ArcSight ESM solution helps Finansbank
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.