Caldera update: MS condemned by its own emails
There's a 1916 precedent dealing with corn and starch, appropriately...
MS on Trial Microsoft is likely to lose its cases against the DoJ and Caldera for a number of reasons. High on that list is the contrast between Microsoft's internal communications and what its witnesses have said in evidence (or introduced in written testimony), and what Microsoft's lawyers have written in court-filed pleadings. All Microsoft's witnesses now have little credibility, especially Bill Gates. Any innocent company would expect its CEO to appear as a witness, but Gates has been persuaded, so far at least, not to appear. It is known from the Stack case, and of course from the present DoJ trial, that he makes a poor witness. An important precedent known to all law students was established in 1916, when Judge Learned Hand [really, that was his name] ruled in the antitrust dispute in United States v. Corn Products Refining Company, that the starch producer had engaged in illegal monopolisation. Corn Products had preserved evidence on typewritten memoranda from company executives. Judge Hand wrote: "The documents were never intended to meet the eyes of anyone but the officers themselves, and were, as it were, cinematographic photographs of their purposes at the time they were written." A witness's attempts to contradict the validity of these memos, Judge Hand wrote, "served only to affect the general credibility of his testimony". The parallel with Microsoft's emails is exact. As Caldera's court documentation says: Those internal communications tell the story of Microsoft's predatory actions, contradicting in every material respect the 'legitimate business justifications' put forth in Microsoft's various summary judgment motions. Judge Hand's conclusions over 80 years ago apply perforce today to a new industry dominated from its inception by Microsoft." Many of the legal documents in the Caldera v Microsoft case are unnecessarily under seal. Microsoft has resorted to making its filings as long and as contorted as possible. Where Microsoft has decided to file a document publicly, albeit redacted, it makes them into slide images so that each page (there are hundreds) has to be printed separately from very slowly-rendering pages. They cannot of course be searched since the text is an image. Another childish trick - particularly where Microsoft's legal ice is thin - is to record its argument as an "undisputed fact", as though anybody would be fooled about this sleight of hand. There is considerable new information revealed in Caldera's filings however, much for the first time. A sample of Gates' pronouncements about DR-DOS is of considerable interest, for it documents the intent of Microsoft from the beginning, and by virtue of Judge Hand's decision against Corn Products, Microsoft appears to have no effective defence. In 1987, Microsoft decided to drop MS-DOS. Microsoft realised its mistake, and Gates said on 6 June 1991: "We thought OS/2 would replace MS-DOS. We were wrong. We got distracted and didn't pay enough attention to the DOS standard." It was most unwise of Gates to have written on 22 September 1988: "You never sent me a response on the question of what things an app would do that would make it run with MSDOS and not run DR-DOS. Is there any version check or API they fail to have? Is ther [sic] feature they have that might get in our way? I am not looking for something they cant get around. I am looking for something their current binary fails on." Gates admitted on 6 August 1989 that DRI's version of DOS was developed legally, and drew attention to the financial effect on Microsoft : "DOS being fairly cloned has had a dramatic impact on our pricing for [MS-]DOS. "I wonder if we would have it around 30-40% higher if it wasn't cloned. I bet we would!" We know from BJ Bahk that on 9 August 1989 "Bill Gates ordered to all application business units to include checking routines of operating environments and if it is Microsoft DOS, nothing will happen. But if it is non MS-DOS (such as DR-DOS), application will display messages saying that 'This application has been developed and tested for Microsoft MS-DOS. Since you use different environment, this application may not work correctly.'" Gates knew where his money was coming from, since he wrote on 29 November 1989, "While DOS continues to be our most important and most profitable product over the last four years we have done very little with it technically." Gates privately admitted on 1 December 1989 that DR-DOS was a quality competitor: "DOS remains the backbone though of both our software businesses. It is under extreme attack by high quality clones like DR-DOS." By 6 March 1992, Gates was admitting that MS-DOS was behind DR-DOS: "I think to be successful a DOS update has to... match the garbage that DR DOS does." After Microsoft had been roughed up in the FTC investigation, Gates wrote on 21 July 1993: "Who at Microsoft gets up every morning thinking about how to compete with these guys in the short term -- specifically cut their revenue. Perhaps we need more focus on this... After their behavior in this FTC investigation I am very keen on this." With his own immortal words, Gates established the bona fides of DR-DOS, the intention to assassinate it, and issued orders to minions to do so. It would be foolish of Microsoft to go to a jury trial with these smoking guns (and there are many more from other Microsoft executives). The problem for Microsoft however is that it is most unlikely that Caldera would agree to anything but a full settlement of its claim. Let's hope the case does go to trial, and that we are not deprived of more juicy revelations about the business ethics of Microsoft, for that would be a pity. ® Complete Register Trial coverage
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