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Unsealed Caldera documents expose MS' DR-DOS moves

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MS on Trial The Caldera case is likely to be cited long after the details of what Microsoft did with its technosabotage efforts on DR-DOS are forgotten. In the Salt Lake City District Court, Magistrate Judge Ronald Boyce has confirmed that news organisations have a right under the First Amendment to the American Constitution ("Congress shall make no law... abridging the freedom of speech, or of the press...") to see appropriate court documents. The San Jose Mercury, the Salt Lake City Tribune and Bloomberg had filed motions to ask that Microsoft's documents in the case be filed publicly. (After all, what could Microsoft have to hide, except its embarrassment?) In March, Caldera filed under seal a Motion in support of the news agencies' motions. Microsoft had managed to obtain a protective order to persuade the court that the documents in the case were highly confidential. In the Motion, Caldera's lawyers, Stephen Hill & Ryan Tibbitts of Snow, Christensen & Martineau, wrote: "In an Order dated 29 March 1999, Magistrate Judge Ronald Boyce said: 'Plaintiff Caldera, Inc. submitted a motion to file under seal its memorandum in support of the media entities to intervene and unseal the court file. The court having examined the document believes they are not legitimately confidential. The motion to file under seal is denied.' This Order reiterated an Order dated 12 February 1999 where the judge said: 'There have been a number of filings in this case that have been made by counsel, under seal, where there is no justification in law or fact for the matters being submitted as sealed.'" Caldera was jubilant. CEO Bryan Sparks told The Register: "We are pleased with the increased public access to documents in our case. We think this will be good for all concerned to know the details of our case, as we believe it effects many aspects of our industry." "Microsoft claims we take things out of context, yet fights so hard to keep context buried," added Lyle Ball, Director of Communications for Caldera. The strength of Caldera's case can be seen from some quotations in Caldera's Motion: "Our DOS gold mine is shrinking and our costs are soaring -- primarily due to low prices, IBM share and DR-DOS... I believe people underestimate the impact DR-DOS has had on us in terms of pricing." -- Bill Gates to Steve Ballmer, May 18, 1989. "This new contract [per processor license] guarantees MS-DOS on every processor manufactured and shipped by Budgetron, therefore excluding DRI." - Microsoft Canada OEM Sales Monthly Report, dated March 1991. "Hyundai Electronics INC. DRI is still alive. We are pushing them to sign the amendment on a processor-based license. This will block out DR once signed." - Joachim Kempin Status Report, October, 1990. "It looks like DRI is urging them [Vobis] to focus on DR-DOS ... ; Lieven [Vobis' president] is complaining about the per processor license - he does not want to pay $9 with every computer and thinks about shipping DR-DOS and MS-DOS." - Joachim Kempin (in charge of Microsoft OEM Sales) to Mike Hallman (Microsoft President). "I took the opportunity to negotiate with him [Lieven] in German, sign our offer as is... Second option - scratch the DOS clause [refuse Microsoft's demand that Vobis sign a per processor license for MS-DOS]; and pay $35 for Windows instead of $15... I have a bet with Jeff that they will sign as is. In my judgment they will hurt if they do not ship WIN and paying $35 for it is out of the question." -- Kempin to Butler, March 26, 1991. It is hardly surprising that MS has claimed that it expects to have to pay $1.6 billion to settle this case. If this potential liability assessment does not appear in Microsoft's 10Q for the SEC, it would risk a shareholder suit of great magnitude against the Directors. ® Complete Register trial coverage

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