Practical considerations aside, another important issue is that the Web could soon get infected with software patent traps. Web sites and Web-based applications are not like any other program that you can install and later replace or remove. If a site requires Silverlight, which in turn is riddled with patents, then it requires licences too, so that leaves Free software stuck. Microsoft, unlike Adobe or Sun, offers no free lunch. We’ll come to this in a moment.
To those who are led to believe (probably by Novell and Microsoft) that Moonlight is fine and that it’s a great step forward, mind the other side of the story. For example:
See? You can have most of .Net … but you can’t write a GUI because Windows Forms is held back. If you try to port Windows forms to another platform, so that a program originally written in .Net using Windows forms can be easily ported to that other platform … Microsoft would certainly sue.
Absolutely classic Microsoft behaviour, that.
For Silverlight … the piece of that that Microsoft have held back for themselves exclusively is the content creation part.
You can only create Silverlight content on a Windows platform.
Remember what was recently said about Windows forms, as far as software patents are concerned. Also see this from ZDNet:
Something has always bothered me about Novell’s Mono project.
Those feelings came together this week with the release of Moonlight, Novell’s implementation of Microsoft Silverlight for Linux.
It’s actually the comments that you might find more interesting. The ugly truth comes from Goldfarb’s own mouth (Microsoft senior), to which the response was this.
What Mr. Goldfarb is alluding to is Microsoft’s position that because of the MS/Novell patent covenant only users of Novell’s Linux offerings have permission to use Mono. All others (as implied by Mr. Goldfarb’s statements here) are using Mono in violation of MS’ patents.
Novell’s Bruce Lowry sort of confirmed this before (he has actually left the company since then). The above only validates what we already knew and warned about a long time ago, e.g. here. Mono and Moonlight are yet another extortion tool for Microsoft. Moonlight enables Mono — along with its accompanying Microsoft patents burden — to penetrate other desktop environments such as Xfce and KDE. Stop Novell and Mono before they spread too far and have Microsoft knocking on doors. █
Confirming what was already known (to an extent), the government refuses to put its weight behind a big push that some say could weaken or eliminate software patents, which are anticompetitive by nature. Here is an analysis.
Predictably, this has led to a flood of new patent applications. Microsoft held about 600 patents the day State Street was decided. Today it holds nearly 9,000 patents. Amazon’s much-derided one-click patent was approved the year after the decision. Patent litigation in the software industry has exploded with firms facing lawsuits over patents covering extremely broad software concepts such as wireless e-mail, web embedding, and converting IP addresses to phone numbers. Technically, these patents cover general purpose computers executing the algorithms described in the patent rather than the algorithms themselves. But because no one executes such algorithms with pen and paper, the net result has been to give the patent holders effective monopolies on the algorithms themselves.
[...]
Several parties submitted briefs urging the Federal Circuit to reject software patents outright, but none of them were invited to participate in the oral arguments.
The death of the Patent Reform Act in the Senate spells hard times for open source.
That’s because one of the act’s main aims was to end “forum shopping,” the practice of filing lawsuits in, say, the Eastern District of Texas, which never saw a patent plaintiff it didn’t like.
The act would have also streamlined reviews of patent claims and made some other important reforms. It wasn’t perfect, but it was better than nothing.
[...]
To me, the most effective form of patent reform was not on the table. That is, eliminate software patentability entirely. Copyright provides plenty of protection, and what you’re patenting, in the end, is math.
Unlike Tim Lee, I haven’t read Ben Clemens’ book Math You Can’t Use. Indeed, I just now heard of it for the first time. But good title! And it’s a good subject for a book — the case against software patents.
Cephalon spent $512,000 on lobbying in first quarter
[...]
The Frazer, Pa.-based company lobbied Congress on a bill aimed at updating the U.S. patent system. Software and computer companies supported the bill that passed the House last year, saying it would cut down on frivolous patent-infringement lawsuits. But the pharmaceutical industry argued it would weaken patent protections on drugs by reducing infringement penalties. The bill has stalled in the Senate.
Those who have the money make the rules, in order to ensure they carry on receiving more money. Attempts are being made at the moment to force software patent upon India and upon the EU, using dirty politics as a back door that dodges science. It’s not too late to respond. It’s not programmers who are voluntarily writing code that are “zealots” and “communists”; in fact, some of the world’s biggest criminals happen to be wearing suits and shades… of hypocrisy. █
“Geeks like to think that they can ignore politics, you can leave politics alone, but politics won’t leave you alone.”
Return on investment (RoI, or even return on revenue (ROR)) is an interesting economical notion when you are a monopolist. On the one hand, if you introduce a new technology, then you add risk. If you introduce new products, you need to invest in development. So why develop anything? Why ever improve?
On the other hand, how about breaking compatibility or castrating features from rival products? How can this ever be achieved? How about subverting their development process and making them financially liable/obliged (e.g. using software patents and contracts)?
“To Microsoft, as history has shown many times before, sabotage of competing products has usually been seen as the more preferable choice.”In the face of strong competition, the situation can be further complicated. What would be the more financially-viable and thus the wiser response? Would it be to make better products or to simply to break the products of that newly-emerging competition? To Microsoft, as history has shown many times before, sabotage of competing products has usually been seen as the more preferable choice. Why improve your own when you can vandalise others’? Like a totalitarian regime, one needs to identify and then eradicate dissidents while they are young, just before their roots spread too widely and reach critical mass, exposure.
Increasingly — although it’s not entirely obvious — what’s described above is a tactic which is used not only against GNU/Linux and Free software, but also against competing office suites and disruptive trends like SaaS. Microsoft spent money on generating FUD ‘studies’ which mock Web-based applications (including office suites) before realising that it must adapt to/embrace them and therefore it can no longer suppress and fight them. The same goes for many other things (not just office suites), which is why Microsoft tried (and failed) to move Office online and sustain revenue. Subscription and ads were attempted also, but they are seen as experimentation.
Microsoft just loves to rave about OOXML as though it promotes competition and permits applications to inter-operate more nicely, but that’s just utter nonsense that can be made believable if it’s repeated often enough. The reality is, as BECTA put it very recently [1, 2, 3], that Microsoft just continues to limit choice, not only using OOXML but also using predatory licences.
In 2005, the same group published a study showing that British primary schools could save up to 50 percent of their software costs by choosing open source applications over “proprietary” ones.
In a related piece of its complaint to the EC, BECTA charges that Microsoft is displaying “anti-competitive practices” by requiring all computers on a school campus to carry Microsoft licenses, if any of the computers use such licenses.
Those who were led to believe that OpenOffice.org does not hurt Microsoft needn’t look further than articles such as this new one and also take a glimpse at Microsoft’s latest report which shows a decline in Microsoft Office sales. Appended at the bottom [1, 2] are a couple of separate yet slightly repetitive messages that I posted in public an hour ago.
All in all, OpenOffice 3.0 shows that you don’t have to pay a bundle for a great office suite. In fact, you don’t even have to pay a penny.
Returning to the key subject at hand, Microsoft’s fight against competing office suite is actually very similar to the way its fights GNU/Linux. It’s not about improving its own over-priced product, but about ensuring that others cannot work properly.
___
[1] If the numbers are still correct, Microsoft has pumped $36,000,000,000 into its stock because *real* investors was leaving (buybacks). This leaves Microsoft with the possibility of going into debt of about $30,000,000,000 pretty soon (they have a proxy fighter shooting heads inside Yahoo!) and the company’s value declined another $30,000,000,000 in the past 3 months.
Is Microsoft Aura Fading?
,—-[ Quote ]
| Yesterday’s early relief rally reversed, and Microsoft’s value has now fallen
| by more than $30 billion since it unveiled its bid for Yahoo on February 1.
`—-
To the extent possible, Microsoft will continue to use the press to feed people the illusion that the company is in good shape. It’s not. At the moment it sells Windows for just $18 (laptops). It has no choice because Linux was eating its lunch. How fat can the cash cow be at $18 apiece?
,—-[ Quote ]
| A prominent example of open source software is the Linux operating system…
| To the extent open source software gains increasing market acceptance, sales
| of our products may decline, we may have to reduce the prices we charge for
| our products, and revenue and operating margins may consequently decline.
`—-
http://www.microsoft.com/msft/SEC/default.mspx
[2] Microsoft’s greatest problem revolves around profits per unit. In their SEC they said:
,—-[ Quote ]
| A prominent example of open source software is the Linux operating system…
| To the extent open source software gains increasing market acceptance, sales
| of our products may decline, we may have to reduce the prices we charge for
| our products, and revenue and operating margins may consequently decline.
`—-
http://www.microsoft.com/msft/SEC/default.mspx
Recently a leaked document showed that they give Windows away for just $18, so the warning you see above is already a reality. Ballmer called Linux the company’s number 1 threat in February. Under a months ago we came to discover that the company’s sales of Windows declined 24%.
Also see this recent one (a week ago):
Wimpy: Why is Yahoo so afraid of Microsoft?
,—-[ Quote ]
| This has everything to do with business and nothing at all to do with
| technology. Wearing my business reporter’s fedora, then, I’ll point you back
| a week or so to Microsoft’s most recent earnings announcement, which
| disappointed Wall Street. This is significant because it is hard to find a
| Wall Street analyst who remembers the last time Microsoft’s earnings were
| disappointing. It simply doesn’t happen. That’s because Microsoft has a
| myriad of tools for adjusting the numbers to look just right.
`—-
,—-[ Quote ]
| Henry Blodget at Silicon Alley Insider has posted Tuesday a good look at how
| Microsoft’s Windows and Google’s search will stack up by 2009. The results
| aren’t necessarily surprising, but they’re certainly interesting to see in
| print: By this time next year, Blodget predicts, Google search will pass
| Windows in total revenue.
`—-
,—-[ Quote ]
| Yesterday’s early relief rally reversed, and Microsoft’s value has now fallen
| by more than $30 billion since it unveiled its bid for Yahoo on February 1.
`—-
Hardly a single Linux or open source event can escape Microsoft ‘sponsorship’
It has become a classic and recurrent routine which continues to be seen once every few weeks. Microsoft offers some organisers money in exchange for the right to attend and speak out its mind in open source events, even Linux events thanks to Novell’s implicit invitation [1, 2, 3, 4, 5].
Microsoft Philippines will sponsor an open source summit in Cebu next month and this early, the software giant is bracing itself for lively discussions about openXML and the fact that the company will make its presence felt at the summit.
Let’s see. Microsoft brings its proprietary OOXML, which is deliberately a case against Free software, and then pretends that it’s part of the “open source” family. Yes, they try to become part of it and then just flush away all the things in Open Source which they don’t like, such as the GPL. Here is a quick refresher, just from the past month alone:
“When will journalists finally wake up and find all that Microsoft is hiding under its blanket?”At the moment, even some of the more pathologicalliars from the OOXML fiasco get the guts to claim openness in another self-serving new article from Disinformation Week, which seems like an attempt to sell us the idea that Microsoft is all about open source and open standards.
It’s utterly appalling how Microsoft uses theits press to ‘massage’ people’s perception while hiding behind the counter whenever those colleagues are rigging votes, bullying people, bribing people and lying to them so shamelessly. When will journalists finally wake up and find all that Microsoft is hiding under its blanket? The evidence is here to see, but the press totally ignores it. Is it shy? Afraid? █
“It’s a Simple Matter of [Microsoft’s] Commercial Interests!”
–Microsoft’s Doug Mahugh about OOXML in the fast track
On numerous occasions before, we wrote about and also showed examples of Microsoft’s vapourware tactics [1, 2, 3], which it speaks about openly (but in private). You might find the following exhibit[PDF] enlightening.
MEMORANDUM OF THE UNITED STATES OF AMERICA IN RESPONSE TO THE
COURT’S INQUIRIES CONCERNING “VAPORWARE”
This Memorandum responds to the Court’s inquiries concerning “vaporware.”(1) While “vaporware” is sometimes used as “slang for announced software that may never materialize,”(2) and other times as “a term used sarcastically for promised software that misses its announced release date, usually by a considerable length of time,”(3) it is susceptible of other definitions as well and, apparently, has no single precise meaning.(4) But, under any definition, the hallmark of “vaporware” is a “preannouncement,” e.g., a statement, before the product is available for purchase, regarding the features or expected release date of the product. This Memorandum discusses the standards under the antitrust laws for evaluating the legality of such preannouncements.(5) As we explain below, product preannouncements do not violate the antitrust laws unless those preannouncements are knowingly false and contribute to the acquisition, maintenance, or exercise of market power.
While we welcome this opportunity to address the Court’s questions regarding the legal standards applicable to vaporware, we respectfully submit that whatever the Court’s ultimate view on this subject, that view should not influence its judgment on the sole issue presented in this proceeding: whether the entry of the proposed Final Judgment is within the reaches of the “public interest.”
The Court’s public interest determination must focus on whether the proposed Final Judgment provides a reasonable and effective means of remedying the specific antitrust violations alleged in the Complaint.(6) The Complaint in this case did not allege any violations relating to vaporware.(7) With respect to the violations that were alleged in this case, the proposed Final Judgment will provide complete and effective relief. As Professor Kenneth J. Arrow(8) concluded in his Declaration, “the proposed settlement appropriately addresses and remedies the anticompetitive effects of the practices challenged in the complaint.”(9)
Approval of the proposed Consent Decree will not in any way prevent the government from suing Microsoft in the future for antitrust violations other than those alleged in the Complaint. The government is entirely prepared to bring a case relating to vaporware if a violation of the antitrust laws can be established. Although we concluded at the time we filed the Complaint that we did not have the facts needed to support additional antitrust charges, we do not foreclose any future action if evidence comes to our attention or if market conditions change in ways that support such action. To avoid, inter alia, any possible prejudice to such potential cases, this memorandum discusses only the legal standards relating to vaporware, and does not address the government’s evaluation of the evidence in its possession that may relate to specific allegations concerning vaporware.(10)
I. Product Preannouncements and the Antitrust Laws
The Elements of a Section 2 Violation
Product preannouncements generally involve unilateral conduct by the announcing firm. Therefore, they are analyzed under Section 2 of the Sherman Act, 15 U.S.C. § 2, the provision of the antitrust laws that applies to unilateral anticompetitive behavior. The relevant offenses under Section 2 are monopolization and attempted monopolization. Each violation requires proof of both “exclusionary” conduct and actual or likely market impact.
“The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). The second element of this test incorporates both a market effect (since acquisition or maintenance of market power must be shown) and what is commonly referred to as the requirement of “exclusionary” conduct.(11)
Attempted monopolization requires (1) the “specific intent to monopolize” and (2) “dangerous probability” that the defendant’s exclusionary conduct “would monopolize a particular market.” Spectrum Sports, Inc. v. McQuillan, 113 S. Ct. 884, 892 (1993).
Truthful Product Preannouncements Have Not Been Found To Be Exclusionary
In general, “`exclusionary’ behavior should be taken to mean conduct other than competition on the merits, or other than restraints reasonably `necessary’ to competition on the merits, that reasonably appear capable of making a significant contribution to creating or maintaining monopoly power.” 3 Phillip Areeda & Donald F. Turner, Antitrust Law § 626c, at 79 (1978). It should not include “non-exploitative pricing, higher output, innovations, improved product quality, energetic market penetration, successful research and development, cost-reducing innovations, and the like [which] are welcomed by the Sherman Act.” Id. § 626b, at 77.
In accord with this standard, courts have refused to find that product preannouncements violate the antitrust laws unless they are knowingly false. See, e.g., MCI Communications v. American Tel. & Tel. Co., 708 F.2d 1081, 1129 (7th Cir.) (“These cases suggest that AT & T’s early announcement of Hi-Lo must be found to be knowingly false or misleading before it can amount to an exclusionary practice.”), modified, 1983-2 Trade Cas. (CCH) § 65,520 (7th Cir.), cert. denied, 464 U.S. 891 (1983); ILC Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp. 423, 442 (N.D. Cal. 1978) (declining to find antitrust liability on a product preannouncement theory because “there was nothing knowingly false about the . . . announcement”), aff’d sub nom. Memorex Corp. v. IBM Corp., 636 F.2d 1188 (9th Cir. 1980), cert. denied, 452 U.S. 972 (1981); see alsoRonson Patents Corp. v. Sparklets Devices, 112 F. Supp. 676, 688 (E.D. Mo. 1953)
(declining to find antitrust liability where company preannounced a product, but never actually released that product).
These holdings reflect the general view that information about products that are not yet available but will be produced in the future will be helpful to consumers as they make purchasing decisions. “[R]easonable good faith statements about research, development, and forthcoming production serve the social interest in maximizing the relevant information available to buyers.” Areeda & Turner, supra, § 738i, at 284. Because of the value of such information, commentators have endorsed the principles espoused in the holdings discussed above: “[N]o liability should attach to statements that truly reflect the monopolist’s expectations about future quality or availability where that expectation is both actually held in good faith and objectively reasonable.” Id.
The Requirement of Market Impact
In discussing misleading advertising under Section 2, courts have emphasized that the practice would not violate the antitrust laws absent the requisite market impact. SeeBerkey Photo v. Eastman Kodak Co., 603 F.2d 263, 288 n.41 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980) (“[The] Sherman Act is not a panacea for all evils that may infect business life. Before we would allow misrepresentation to buyers to be the basis of a competitor’s treble damage action under § 2, we would at least require the plaintiff to overcome a presumption that the effect on competition was de minimis.”); National Ass’n of Pharmaceutical Mfrs. v. Ayerst Labs., 850 F.2d 904, 916 (2d Cir. 1988) (“[B]ecause the likelihood of a significant impact upon the opportunities of rivals is so small in most observed instances — and because the prevalence of arguably improper utterance is so great — the courts would be wise to regard misrepresentations as presumptively de minimis for § 2 purposes.” (quoting Areeda & Turner, supra, § 738a, at 279)). We are not aware of any case finding that a false product preannouncement had the required market impact.
Intent To Deny Sales To A Competitor
The Court also has asked whether an undisclosed intent to defeat a competitor might render an otherwise truthful product preannouncement misleading so as to alter its status under the antitrust laws. Tr. at 103, 106, 109-11. The case law provides little support for finding liability on the basis of intent in the absence of underlying conduct otherwise deemed exclusionary. The law has developed to avoid a mistaken imposition of antitrust liability for legitimate competition on the merits, because desirable competitive behavior (including, e.g., the development of better products and the offering of lower prices) usually has the purpose and effect of reducing competitors’ sales. “`[I]ntent to harm rivals’ is not a useful standard in antitrust. . . . Neither is `intent to do more business,’ which amounts to the same thing. Vigorous competitors intend to harm rivals, to do all the business if they can. To penalize this intent is to penalize competition.” Ball Memorial Hosp., Inc. v. Mutual Hosp. Ins., 784 F.2d 1325, 1338-39 (7th Cir. 1986).(12) Indeed, as the Supreme Court has noted, “[e]ven an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws; those laws do not create a federal law of unfair competition or `purport to afford remedies for all torts committed by or against persons engaged in interstate commerce.’” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 113 S. Ct. 2578, 2589 (1993) (quoting Hunt v. Crumboch, 325 U.S. 821, 826 (1945)).
II. Concerns Relating To Vaporware Do Not Justify Rejection of the Proposed Final Judgment
The Department, after thorough investigation, filed the Complaint herein alleging violations of law based on Microsoft’s licensing practices. It did not at that time find a legal basis upon which to include other claims, including vaporware, based on evidence then available to it, including documents presented to the Court in this proceeding. The government, as prosecutor, has the discretion to determine whether it believes a cognizable claim has been made out on the facts known to it. Its exercise of that discretion is not subject to this Court’s review in a Tunney Act proceeding. SeeIn re International Bus. Machines Corp., 687 F.2d 59l (2d Cir. 1982). This Court’s role under the Tunney Act is to determine whether the proposed Final Judgment adequately remedies the “violations set forth in the complaint.” 15 U.S.C. § 16(e)(2). In light of that limitation, it would be legal error to reject the proposed Final Judgment because of concerns about vaporware, which has not been alleged as a violation in this case.(13)
But it is equally important to note that a rejection of the proposed settlement, or the imposition of any conditions on its approval that are not accepted by both parties, would sacrifice the immediate and certain benefits to competition that the proposed Final Judgment will provide. As the Department’s economic expert, Nobel Laureate Kenneth J. Arrow, has observed:
The Department of Justice’s complaint against Microsoft and the resulting settlement eliminated unnecessary and artificial obstacles erected by Microsoft to disadvantage future competition. . . . [T]he complaint and proposed remedies addressed competitive issues that are critical to the success of new competition in this market. The most effective and economic point of entry for sales of IBM-compatible PC operating systems is the OEM distribution channel. New operating system software products should have unimpeded access to this channel.
Arrow Dec’l at 4-5.
The Court has conducted a searching inquiry, and will continue to have supervisory power under the Final Judgment, including the ability to sanction and remedy any violation of the Decree with contempt or other punishment it finds appropriate. The Department of Justice remains ready, willing and able to investigate all allegations of past, current or future conduct by Microsoft or any other company which may violate the antitrust laws, and to bring suit when sufficient evidence has been found to justify filing a complaint.
In the matter now before the Court, the government found such a violation, and obtained a proposed consent decree which offers immediate and needed relief to the market. Whatever else the Department may or may not be able to find and allege in the future, this proposed Final Judgment clearly is adequate to remedy the alleged violations, and should be entered.
All of the requirements of the Tunney Act have been satisfied. The Declaration of Nobel Laureate Kenneth J. Arrow and the government’s other filings in support of the proposed Consent Decree establish an ample basis for concluding that the proposed Final Judgment is in the reaches of the public interest. SeeUnited States v. Western Elec. Co., 993 F.2d 1572, 1582 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993). We therefore urge the Court to find that the proposed settlement is in the public interest, and to enter the proposed Final Judgment forthwith.
[...]
January 27, 1995
FOOTNOTES
1. Transcript of Motions Hearing, Jan. 20, 1995 [hereinafter "Tr."] at 145.
3. Microsoft Press Computer Dictionary 359 (1991).
4. For other definitions, see Alan Freedman, The Computer Glossary 725 (1989) (“Vaporware is software that does not exist. It usually refers to products that are advertised, but that are not ready for delivery to customers.”); Robin Williams & Steve Cummings, Jargon: An Informal Dictionary of Computer Terms 576 (1993) (“Vaporware is a product that the vendor keeps promising is about to arrive any moment (real soon now) — but it goes so long past its shipment date that no one believes it will ever really ship. Sometimes it never does. System 7 was vaporware for a while, since it took two years longer to appear than we were told. Apple’s Newton was vaporware for a long while.”).
5. We do not address specific allegations that Microsoft has used such preannouncements, or has offered “vaporware.” The government has not expressed any view regarding the validity of those allegations.
6. See Memorandum of the United States of America In Support of Motion To Enter Final Judgment and In Opposition To The Positions of I.D.E. Corporation and Amici, [hereinafter "Memorandum in Support of Motion To Enter Final Judgment"] at 7-10.
7. The government’s decision not to allege particular violations is not subject to review under the Tunney Act. See Memorandum in Support of Motion To Enter Final Judgment at 10-13. That decision, like the decision to dismiss an action filed under the antitrust laws, is committed to the discretion of the Department of Justice. SeeIn re International Bus. Machs. Corp., 687 F.2d 591, 600-03 (2d Cir. 1982) (issuing writ of mandamus to prevent review of stipulated dismissal of an antitrust case).
8. The Court of Appeals recently reviewed an analysis by Professor Arrow in a Tunney Act proceeding, and concluded that it was “enough . . . to establish an ample factual foundation for the judgment call made by the Department of Justice and to make its conclusion reasonable. Insofar as the district court may be considered to have found the contrary, the finding was clearly erroneous.” United States v. Western Elec. Co., 993 F.2d 1572, 1582 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993).
9. Declaration of Kenneth J. Arrow, attached to Memorandum in Support of Motion To Enter Final Judgment [hereinafter "Arrow Dec'l"] at 13.
10. Such discussion would also be inconsistent with the respective roles assigned to prosecutors and the courts. See Memorandum In Support of Motion To Enter Final Judgment at 10-13.
11. Common examples of exclusionary conduct include hoarding excess capacity, see, e.g., United States v. Aluminum Co. of Am., Inc., 148 F.2d 416 (2d Cir. 1945) (L. Hand, J.); United States v. United Shoe Mach. Corp., 110 F. Supp. 295 (D. Mass 1953), aff’dpercuriam 347 U.S. 521 (1954); predatory pricing, see, e.g., Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 113 S. Ct. 2578, 2587 (1993); and certain refusals to deal without legitimate business reason, see, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985); Otter Tail Power Co. v. United States, 410 U.S. 366 (1973).
12. AccordArthur S. Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1422 (6th Cir. 1990), cert. denied, 112 S. Ct. 274 (1991); Morgan v. Ponder, 892 F.2d 1355, 1359 (8th Cir. 1989); Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 232 (1st Cir. 1983) (Breyer, J.).
13. See Memorandum in Support of Motion To Enter Final Judgment at 4-16.
Bear the quote below in mind whenever Microsoft speaks of Windows 7apourware™. █
“In the face of strong competition, Evangelism’s focus may shift immediately to the next version of the same technology, however. Indeed, Phase 1 (Evangelism Starts) for version x+1 may start as soon as this Final Release of version X.”
In this week’s limelight, OpenSUSE had Marcus Hüwe.
Despite being a openSUSE member and a platinum member of the PackMan team packaging several widely-used applications he also helps the Build Service team with osc code contributions.
With no more talk, today we nominate Marcus Hüwe as part of ‘People of openSUSE’!
After knowing this news, I immediatly took YaST to update all KDE4 packages yesterday. Now, I’m going to mention how to do that in easy (GUI) way, how to install or update KDE 4 to your openSUSE machine (I’m recenty using openSUSE 10.3 right now and used in this whole tutorial). I assume You have installed KDE 4.0 before following this tutorial, see this to install KDE 4.0 in your openSUSE machine.
Kulow announced the release of Beta 3 of OpenSUSE 11.0 roughly a day ago:
The openSUSE team is proud to announce the third Beta release of
openSUSE 11.0!
Over 700 bugs were fixed since beta 2, more new artwork was added
and several new package versions were includes. The live installation
has seen great improvements and should work flawless now.
For screenshots and additional information, see the news posting at:
Remember that this is a beta. It may not be safe to run for production
systems, and should be used by users interested in testing the next
release of openSUSE for bugs.
Most Annoying Bugs
===============
See the Most Annoying Bugs[0] page on the wiki for an up-to-date list.
If you want to help testing our standard test-cases, just take a look
at openSUSE.org/Testing, and in particular the Testing:Features_11.0
[1] sub-page which includes a definitive list of the features added
into openSUSE 11.0. You can also coordinate with others and subscribe
to the opensuse-testing@opensuse.org mailing list to help with our
organized testing.
openSUSE 11.0 Beta 3 is a great time to start testing-out openSUSE
11.0 before it is officially released. You can directly help and
contribute to the openSUSE distribution by filing bug reports and
giving feedback to the developers.
* Reporting bugs: Please report all bugs you find on in our
Bugzilla as explained on bugs.openSUSE.org.
* Discussion and feedback is very welcome as well; the most
appropriate place is the opensuse-factory@opensuse.org mailing list.
Or in the #opensuse-factory IRC channel.
For other queries and ways to communicate with the openSUSE community
take a look at the http://openSUSE.org/Communicate wiki page.
The next planned release[2] is openSUSE 11.0 Release Candidate 1 on May 29.
According to Brockmeier, interest was high as the openSUSE project received more than 50 applications for its 10 allocated slots, and he is confident the students they’re working with will be valuable contributors in the long run.
Over at YouTube, an interview with Novell’s Brandon Philips has emerged. It’s embedded below and also available as Ogg now (we get better at producing these quickly, thanks to advice from reader akf).
The Linux Novell version will feature a 1.3mp webcam, 802.11b/g, 2.5 hrs battery life, 80G / 2.5” SATA hard drive, 512MB DDR2/ 667MHz memory, 10″W (1024×600) LED display, Intel 945GMS, ICH7-M chipset and weighs 2.3 lbs.
Broadwater recently faced a budget crunch at the same time he needed new Web servers and more room in his data center. His solution: new HP blade servers based on Novell’s SUSE Linux Enterprise server software, which builds in virtualization software from Xen, a leading open-source alternative to VMware’s offering.
The first public release of Moonlight, which provides a Linux client implementation of Microsoft’s Silverlight rich Internet application (RIA) technology, was made available this week.
We will reserve harsh judgment this time around. It’s Saturday after all. █
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Practical considerations aside, another important issue is that the Web could soon get infected with software patent traps. Web sites and Web-based applications are not like any other program that you can install and later replace or remove. If a site requires Silverlight, which in turn is riddled with patents, then it requires licences too, so that 
Kulow announced the release of Beta 3 of OpenSUSE 11.0 roughly a day ago:
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