Summary: Controversies around OOXML gradually vanish, at least in Wikipedia; the UK is encouraged to embrace ODF for savings

Ronald Raegan’s page in Wikipedia (and other reference readings) is a good example of gradual whitewash of one’s career. See the “history” and “discussion” pages. One by one, many scandals disappear from the face of historical record and thus from public awareness. What does that have to do with OOXML?

In the years 2007-2009 we wrote almost a thousand posts about document formats, particularly about Microsoft’s crimes (bribes, extortion, etc.) in this area.

“…even Microsoft tries to distance themselves from OOXML these day.”
      –Rob WeirThe FFII has just warned that, based on Wikipedia changes, Microsoft is managing “to get rid of controversy” (we are not suggesting that Microsoft paid for these edits like it did before).

Alex Brown too played a role in such games and IBM’s Rob Weir told me today that “even Microsoft tries to distance themselves from OOXML these day. [...] Thinking of the recent OData/OOXML article”

Separately, Weir pointed to this new article about benefits ODF would bring to the UK. The figure of £51,000,000 gets mentioned.

Do you really have to standardise on ODF, I asked? Won’t the existing Microsoft formats do the job just as well?

Now Maxwell has got in touch. He’s got an interesting story to tell – and his council is one which is thinking very seriously about how to get the cost of IT in local government pushed down. The logic: reduce those costs, and you don’t have to cut other services when you’re faced with an across-the-board reduction in your grant from a central government bringing in austerity measures.

I spoke to him earlier today and asked if he was serious about the necessity of ODF being mandated before real change could happen – and how much the savings could be, and what’s happening with local government. Here’s how he explained it – and these thoughts are going to be expanded in a paper that he is preparing to release next week with much more detail.

The British police ought to seriously consider ODF now that it cuts expenses. This would also improve security. █

Update: here is more coverage on the topic (“Money makes the Wikipedia go round”).

The Open XML process is a great case study why Wikipedia is not always reliable, when money comes into play. Even before the heated phases of the Open XML discussions at ISO a scandal rocked the Wikipedia scene. Rick Jelliffe disclosed in his blog that he was offered money by a company to edit the Open XML article. At that is exactly how this article looks until this very day, a honeypot for young wikipedians who want to watch the dirty tricks.

Throughout the controversial phases the editing process demonstrated a clear bias of professional editors towards a certain corporate agenda and pushed the Open XML article towards a “shadow article” as a target, close to advertisement. So regardless what was changed by the ‘ordinary guys’ would be reversed, step by step.

Summary: The belittling of Richard Stallman follows his reminder of the Mono problem and Microsoft apologists play a part in it

IT IS NOT news that the FSF formally discourages use of Mono (and Moonlight which depends on it). Microsoft MVP Miguel de Icaza carries on bragging about new features in Mono 2.8, which is essentially co-developed with Microsoft now.

Freedom champion Glyn Moody spoke to Richard Stallman earlier this month and revealed that Stallman had not changed his mind about Mono. To quote the relevant bits:

GM: Could you please explain the problems with Microsoft’s .NET? Is all of it equally problematic, or just some, given that Microsoft has made its Open Specification Promise for parts?

RMS: Eben Moglen told me that “open specification promise” is not something we can rely on.

For the C# language that was standardized by a standards committee, Microsoft was required to make a stronger commitment. But that does not apply to the rest of .NET.

GM: Against that background, what is your current advice to people in terms of using .NET technologies, and why?

RMS: You shouldn’t write software to use .NET. No exceptions.

The basic point is that Microsoft has patents over features in .NET, and its patent promise regarding free software implementations of those is inadequate. It may someday attack the free implementations of these features.

The Source has responded to this by writing:

Team Apologista refuses to honestly acknowledge that the patent promise covering .NET is insufficient. In fact, a favorite tactic of Mono Apologists is to mention some other technology (usually AJAX or FTP) and then pretend the Mono situation is similar to AJAX, and so if one is opposed to the former, they must also oppose the latter, or are ignorant/hypocritical/whatever.

The truth of the matter is that .NET is NOT under the same “promise” that these other technologies are, so this ruse is inaccurate. Shockingly, Mono apologists continue to use this faulty “defense”.

Additionally, much of .NET (and corresponding portions of Mono) are NOT covered by any promise whatsoever – and despite Team Apologista’s occasional concession on this point (often with vague promises to “split” Mono into “covered”/non-”covered” portions), I feel it is not unfair to say Team Apologista downplays this distinction.

At a later point The Source showed that Mono boosters are censoring in Wikipedia, suppressing criticism as others did before them.

Today I was looking through the logs and it struck me I haven’t seen any Wikipedia traffic of late, so on a lark I went to the site and saw someone had (anonymously of course), removed the link to my site, with the following “explanation”:

The Source and BoycottNovell are not trustworthy “news” sites and are known to be anti-Mono/anti-Novell propagandists.)

Note that same users edit history; every edit (excluding a handful back in 2008) is a .NET/Mono-related topic and in every case that I bothered to look at are all non-factual and (in wiki-speak) non-NPOV edits.

Especially devious is how this individual edits articles to downplay patent concerns for Mono, while emphasizing the issue of patents for Portable.NET.

Gotta let people know where they can get that “IP peace of mind” I guess.

umad?

This is just more of the same from Team Apologista. Today I was looking through the logs and it struck me I haven’t seen any Wikipedia traffic of late, so on a lark I went to the site and saw someone had (anonymously of course), removed the link to my site, with the following “explanation”:

The Source and BoycottNovell are not trustworthy “news” sites and are known to be anti-Mono/anti-Novell propagandists.)

Note that same users edit history; every edit (excluding a handful back in 2008) is a .NET/Mono-related topic and in every case that I bothered to look at are all non-factual and (in wiki-speak) non-NPOV edits.

Especially devious is how this individual edits articles to downplay patent concerns for Mono, while emphasizing the issue of patents for Portable.NET.

Gotta let people know where they can get that “IP peace of mind” I guess.

umad?

This is just more of the same from Team Apologista.

Watch the comment which says:

There is no excuse for removing criticism from Wikipedia, no matter how controversial the subject is.
Heck there is even this on Wikipedia:
http://en.wikipedia.org/wiki/Criticism_of_Wikipedia
So whoever made the change you describe should instead have created a new section on the Moonlight page, called “Criticism”, and moved the content there.
Or created a new page called:
http://en.wikipedia.org/wiki/Criticism_of_Moonlight
and moved the content there, and linked to it from the main Moonlight page.

Needless to say, I am disgusted by this form of perception management, it has a stench of Microsoft.

But let’s go back to Stallman’s criticism. It appears as though Florian Müller — as misguided as he is when it comes to the subject of Microsoft — has decided to personalise and mass-mail journalists (as usual) with his thoughts on “RMS’s call to boycott .NET, C#, Mono, DotGNU” (notice the strength of the words).

“Avoid .NET and C# at all costs.”
      –FFII President“It’s kind of predictable that you and some others will interpret my latest blog posting (on Richard Stallman’s call to boycott .NET and its free implementations) in a certain way but that consideration can’t limit me in my expression of opinions,” Müller explained. “I doubt that RMS’s advice to developers hurts Microsoft but the people who do DotGNU, Mono or software running on top of those platforms may be hurt by it, at least emotionally. And for no good reason because .NET isn’t less free than Java or PHP, as I explain on my blog.”

Müller misses the point entirely for reasons we explained before. Maybe he is trying to miss the point, but deliberate misinformation is too hard to prove. Müller is conveniently ignoring Microsoft’s past and he is whitewashing instead, due to an irrational fixation. This latest post of his makes his irrational defence of Microsoft even more apparent and one of our readers broke Godwin’s law when he described what he saw here. There is more of that in the IRC logs.

“Avoid .NET and C# at all costs. Platform dependencies all the way,” told the president of the FFII to Müller, who replied with: “Platform dependencies are a different topic, I just said #swpat aren’t a particular problem of .NET, C#, Mono, DotGNU.”

Michael Widenius, the founder of MySQL who had Müller as a sidekick while serving a Microsoft board, is currently debating the whole “open core” mess and he says:

To me it’s clear that just because some of your product(s) is available under an open source license, you can’t claim to be an open source company, as that would make the term meaningless. Under such a definition even Microsoft would be an open source company, as some of their products are now available as open source.

On what platform/s? Under what conditions? What about software patents? What about Microsoft’s history of criminal abuse? Does that not count? █

Summary: Overview encompassing 3 weeks of ODF progress and victories

IT has been a long time since our last ODF update, so here is a long post catching up with key events and developments.

According to Peter Krantz, a seminar on ODF took place at Copenhagen Business School one week ago. Bart Hanssens and others noticed it and Hanssens has added this event to the ODF Web site at XML.org.

Location: Copenhagen, Denmark
Date: 12 Jan 2010 – 09:30 – 15:00
Event Type: Conference

According to published reports in Norwegian and in English, Norwegian Broadcasting moves to OpenOffice.org and ODF. This is great news, but it’s nowhere as big as the news from Munich, which was mostly covered in German (rarely in English). Coverage includes:

• Umstieg auf ODF in der Stadtverwaltung München komplett
• ODF es el formato de documentos oficial en Munich
• Münchner Verwaltung hat auf offenes Dokumentenformat umgestellt
• Munchen áttér ODF-re
• München Linux/Open Source projektje jobban fut mint valaha
• ODF es el formato de documentos oficial en Munich
• ODF es el formato de documentos oficial en Munich
• ODF es el formato de documentos oficial en Munich
• Munich se inunda de documentos ODF
• Munich trabaja oficialmente con ODF
• ODF es el formato de documentos oficial en Munich
• Munich completa la migración al formato ODF
• Munich completa la migración al formato ODF
• [Alemania] ODF es el formato de documentos oficial en Munich
• LiMux: München erreicht weiteren Meilenstein
• Umstieg auf ODF in der Stadtverwaltung München komplett

There is a lot more about this coming from individual people, with one person saying: “congrats to the #limux team for the complete switch to #odf #linux”

Wikipedia has been updated to reflect on this and the debate carries on. Over in Denmark, a decision on open standards was said to be on the eve of a final decision after the scandals. According to a rough translation from Denmark, Midtjylland is turning to ODF and possibly leaving Microsoft Office. They cite problems with interoperability between Microsoft’s versions of Office. So typical.

Some people still wonder what software is good for ODF support and Sun releases ODF Plugin 3.1 for Microsoft Office, which includes support for ODF 1.2. Microsoft itself supports MSODF, which is not ODF [1, 2, 3, 4, 5, 6, 7].

There is also freeware and GPL-licensed software that adds ODF support to Microsoft Office.

Drupal’s support of ODF was mentioned here before, but here it is again in some blog posts and in the ODF Web site, sitting there alongside another new page about OfficeReader (also see OffiViewer).

“Jesper Lund Stocholm and his friends from Microsoft are generally still trolling ODF, as usual.”Sander Marechal adds an anonymiser to Officeshots and the Microsoft provocateur Jesper Lund Stocholm trolls such a feature nonetheless.

Jesper Lund Stocholm and his friends from Microsoft are generally still trolling ODF, as usual. It seems as though Alex Brown and his buddies from Microsoft are bound to make another BSI fiasco. The Internet never forgets.

A Microsoft-sponsored ODF seminar (yes, from the company that attacks ODF) is to take place, according to Microsoft’s ODF-hostile trolls. Unlike IBM for example, Microsoft still wishes to eliminate ODF. That’s just its business objective.

Over in Brazil, there is a debate about ODF [OGG]. A rough translation of some coverage says that the “The director of the ODF Alliance Jomar Silva, @Homembit, was a guest at the table discussion on memory International Seminar of the Forum of Brazilian Digital Culture.”

Direct link

Over in the UK, the OSA’s Mark Antony is told that politicians can be believed “they’re sincere when Whitehall is running on Ubuntu & documents on govt. websites are available in ODF…”

“Currently, Microsoft does not properly support ODF and it still treats it like a second-class citizen.”SJVN has his personal interpretation of the impact of the i4i decision [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. “Maybe in the aftermath of the i4i decision,” he argues, everyone will “just have to bite the bullet & support ODF.” Currently, Microsoft does not properly support ODF and it still treats it like a second-class citizen. Google too has some catching up to do, based on D. R. Evans, not to mention Apple, which has been helping Microsoft against ODF. As one person put it earlier this month, “ISO’s current defect report for ISO 29500 (OOXML) has 809 pages. That are 71 pages more than the full specification of ODF 1.1! !” Miguel de Icaza helped Microsoft address some of these errors, but since then he has been crowned and named Microsoft MVP [1, 2]. He’s like part of that company.

The UX OpenOffice.org blog marks the beginning of the new year and reports from the UX meeting in Hamburg [1, 2] while ZDNet Germany writes about KOffice 2.1.1 (there’s more about Lotus Symphony). Bart Hanssens writes about ODF content at FOSDEM. He is preparing a talk and he has also uploaded a new draft of ODF 1.1 Interop Profile. His colleague Dennis Hamilton is happy about it.

Our reader The Mad Hatter is making valuable information future-proof right about now:

Open Formats – I’m Moving all Mom’s Poetry to Open Document Format

[...]

Of course if you do want access to Mom’s poetry, you can just go to OpenOffice.Org, and download Open Office at no cost. There’s no reason you can’t have both Microsoft Office and Open Office installed on the same computer.

In summary, even though there are no major ODF events, this international standard continues to develop and be adopted all around the world. █

Summary: Microsoft is sending partners from India to jail and also hiring from the East in order to lower expenses that are wages

THERE is nothing more absurd than a criminal company sending others to prison while managing to stay out of jail or decommissioning. Almost exactly one year ago we wrote about Microsoft sending Chinese businessmen to prison and now this is happening in India:

i. Software company MD arrested for piracy

The Central Bureau of Investigation (CBI) has arrested two persons on Friday, including the managing director of a Delhi-based software company, allegedly for carrying out piracy of Microsoft products.

ii. Partner Cheats on Microsoft

We have been covering Microsoft a lot lately. But for all the wrong reasons these days. First it was the unrest amongst channel partners in the East and North East regarding the arm twisting technique to increase sales. Now it is about the Microsoft Gold Certified partner KK Solutions in Delhi, which the brand caught recently counterfeiting not just the software but also all the certifications.

This is a sure way to drive sellers to GNU/Linux, as Microsoft recently found out in China. In India too, as Microsoft is finding out, this war on so-called ‘piracy’ (it is not piracy^*) is having a negative effect.

Related to the above we also have this news:

H1-B Enrollment Up At State Colleges

[..]

As the state lawmakers head back to Olympia this month, we take a look at how one bill passed last year is playing out. The bill granted in–state tuition to foreign professionals and their families. Many of these are H1–B visa holders who work at places like Microsoft and Amazon. Since the law passed, new enrollments among this group have shot up at the UW and at community colleges around the region.

We last mentioned this here or here. █
_____
^* When people do not like something, then they tend to assign to that something a bunch of words with very negative connotation. In the case of “piracy”, murder and rape are implied. Even the word “terrorism” is said to have been cheapened by overly extensive and broad use. Today in Slashdot we found: “Novelist Blames Piracy On Open Source Culture”

The direct link says, ‘”With the open-source culture on the Internet, the idea of ownership — of artistic ownership — goes away,” Alexie added. “It terrifies me.”‘ What does that have to do with “open-source”? Nothing. The headline says that “Digital piracy hits the e-book industry.” Open source is wrongly being associated with copyright infringement. Our reader Oiaohm says: “They are looking for someone to blame. [...] Problem is projects like wikibooks is cutting in on there normally easy payday jobs [...] Then projects creating open source text books. So writers of conflicting items with open source find no one prepared to pay for what they have made.” Goblin says: “I don’t think they are trying to blame, I think its merely ignorance and lack of understanding on their part.” Oiaohm says “it’s a mixture” of those two factors. “I.e. open source project cutting into the markets, then normal people who don’t give a rats about copyright doing there normal thing. Copy protection in media has been a losing battle. Expect authors of books to get more hostile to the open source world. Think how may books the Wikipedia has undone. I cannot say fear [of] open source based documentation is groundless.”

As newspapers are already hostile towards Wikipedia and FOSS-like economics, this explanation makes sense. These sources devalue the older ones. A lot of resistance to DRM comes from FSF and the same goes for defense of P2P (where Free software is often obtained, especially GNU/Linux distribution torrents). The RIAA/MPAA (MAFIAA for short) openly complained about the FSF more than once for no justified reason.

Summary: Peer-To-Patent skepticism, ACTA rears its ugly head with Microsoft as an excuse, the effect on the sight-deficient noted

EARLIER ON we wrote about Peer-To-Patent Australia. It was mentioned critically in this new post and others agree that “this [might] do more harm than good by legitimising “good” software patents…”

More staffing around patents is hardly a solution. Abolishment is the best option.

In the same vein of endorsement through expansion, argues Glyn Moody in relation to the news about “ACTA Secretariat”, “just what we need: *another* global intellectual monopolies body…”

The indispensable Jamie Love has posted a much more convenient version of an earlier leaked “non-paper” from Canada which proposes an ACTA “Council”, i.e. secretariat, that would stand apart from WIPO and the WTO.

We previously wrote about ACTA [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13] and about who/what WIPO represents. Here is WIPO expressing skepticism about Wikipedia, which WIPO must absolutely hate because it weakens monopolies (over information). In general, WIPO views Free software as illegitimate.

But going back to ACTA, Moody shows its connection to Microsoft:

Microsoft Gets in on the ACTA

[...]

Now it looks like Microsoft is joining in:

a common tactic of intellectual property holders is to blur the distinction between counterfeit and pirated goods (and even legal generic goods, in the case of the pharmaceutical industry). Microsoft’s press release exemplifies this, talking about “counterfeit Microsoft software purchased at resellers” and the “black market for pirated software” as if the two were synonymous. In fact, most consumers who obtain pirated goods on the black market realise that they are not original. Whilst Consumers International discourages consumers from using pirated goods, in many countries they have little choice, because originals are either unavailable or are priced far beyond their means.

We wrote about this subject the other day. Microsoft is lying.

Moody adds the observation that “Intellectual Monopolists Scorn the Blind”. This is not the first time we see (or fail to see) it.

This, then, is the reality of “modern” copyright: it fails to serve huge numbers of people, many of whom are already suffering from discrimination in other ways.

Given this situation, various organisations are not unreasonably trying to facilitate access to copyrighted works for those who are visually disabled with a new WIPO treaty that would define basic rights for this group. Who could object to such a humanitarian cause? Well, the publishers, of course.

Last but not least, Moody opines that patent power is drifting over to Asia and he uses this news report as proof.

Asian Tech Firms Buy Up Patents

The days of U.S. technology companies wielding patents to block Asian competitors from the market or collect big royalties may be waning. Ron Epstein, the chief executive and co-founder of IPotential, a San Mateo, Calif.-based patent broker, says South Korean and Taiwanese technology companies have been contacting him to purchase patents. Their goal? To ward off potential intellectual property disputes before conflicts flare.

The trend mirrors a path U.S. companies took several years ago when they first began buying patents defensively, say Epstein, who calls patents a “competitive tool.” “Asian companies have seen the success U.S. companies have had with patent purchasing and are doing it themselves,” he says. He estimates that Asian firms are two to three years behind their Western counterparts in this regard.

A wealth of patents is simply the centralisation of monopolies. Nowhere does it say anything about innovation; it’s just a monopoly, it’s a protection.█

Take a look…

And on it goes. █

Summary: OpenDocument Format (ODF) suffers more interferences and interruptions from Microsoft and its followers

A FEW days ago, Novell's and Microsoft's role in harming Web standards was mentioned, but Adobe has a similar agenda and Jan Wildeboer from Red Hat warns that “Adobe plans to redefine the Internet with their proprietary stuff.”

Adobe also has PDF for documents, which is not particularly good, but it is far less malicious than Microsoft’s attempt to control documents. As one person has put it, “rtf is as bad as .doc, ideally I’d say use ODF, but MS users will gripe it’s not supported”

“Microsoft insists on making ODF look as though it is proprietary and its lobbyists do the same type of thing in panels they invade.”Microsoft is a company far less ethical than Adobe, simply based on its actions. For instance, Microsoft subverts Wikipedia's entry on ODF such that it advances OOXML. Jomar Silva has just told Tim Bray that “the ODF entry is a mess, and don’t try to fix it, because a jerk named hAl is keeping the mess there !”

That would hardly be news, but hAl is just one among a group that carries on making the article on ODF worse and worse. John Drinkwater has undone yet another hostile and unnecessary change (“Undid revision 317727032 by Cybercobra not a useful change, standard is built upon XML”). This was done in response to a couple of edits from Cybercobra.

Here is Cybercobra removing mentions of “free” and “open” as though they are dirty words. We have seen this before. Microsoft insists on making ODF look as though it is proprietary and its lobbyists do the same type of thing in panels they invade.

ODF has sincere following (not Microsoft partners) and the ODF Toolkit continues to be mentioned a lot, as well as the next Plugfest — an event we previously mentioned in [1, 2, 3, 4, 5, 6, 7, 8 9 10, 11]. Microsoft attended the last Plugfest where it promoted its agenda along with its partners and MVPs.

A pro-Microsoft saboteur wants more access to ODF, probably hoping that people do not remember what he did. Bart Hanssens meanwhile prepares a working draft of an ODF interoperability profile and publishes the following about Xapian.

Xapian is an open source search engine library written in C++ with bindings for C#, Java, PHP and Ruby. It supports the most commonly used document formats, including of course ODF.

What’s the deal with OLE objects, which are Microsoft's way of blocking standard adoption? █

Summary: The Internet wants to be free and so do computer users; Microsoft keeps standing in their way

BACK in 2007, Wikipedia embraced ODF. The software on which it is built, MediaWiki, happens to be used by Boycott Novell and one of Microsoft’s loyal users has just decided to abandon Microsoft Office in favour of MediaWiki. This is not particularly surprising and by all means it is another win for Free software. The following is a sort of eulogy for Microsoft Office.

I chose MediaWiki, the open-source software that powers Wikipedia. It was relatively easy to install on a virtual Linux server. Since everyone has read Wikipedia, the interface was familiar and so our users needed no training. Because Wikipedia managed to efficiently store—at the time of this writing—all human knowledge, speed and scalability weren’t a problem. Finally, the price (free) was acceptable.

[...]

So farewell, Microsoft Word. Don’t feel too bad—you had a long and prosperous run. We had more than twenty years of fun together. You added feature after feature after feature, and I learned how to avoid your crazy style changes whenever I deleted an invisible formatting command. Maybe if you just had “Reveal Codes”… nah, it wouldn’t have mattered. The world simply changed.

The Microsoft-faithful crowd keeps vandalising Wikipedia’s article on ODF, turning it in favour of Microsoft. We last saw this a few days ago, but it just doesn’t stop [1, 2, 3]. Who the heck is “SmackBot“?█

On abuse against ODF at Wikipedia:

• Microsoft Starts Attacking the ODF Alliance, Sends Paid Wikipedia Editors to ODF Article (Updated)
• OOXML BRM Convenor (Alex Brown) Joins the Pro-Microsoft Wikipedia Spinners
• Microsoft Folks Rewrite ODF’s History and Build Anti-ODF Social Network
• Fraunhofer Again Lobbies for Microsoft Lock-in
• Is Microsoft’s AstroTurf Against ODF Still On?
• Microsoft Accused of Anti-ODF Whisper Campaign

“E

specially for those brainless ** who maintain that supporting the “de facto standard” means the best interoperability imaginable,” Richard Rasker says and shares this report from The Register, which aligns with what we already know (that the Mac version of Microsoft Office is not compatible with the Windows version).

Microsoft’s recently released Service Pack 2 for Office 2008 for Mac makes it impossible for many users to open Office files created on PCs.

“Yup, sounds like Microsoft to me,” adds Rasker. “And to think that Microsoft Office is actually their only reliable cash cow apart from Windows. One might expect a little better trial and testing before inconveniencing people like this, now mightn’t one?

“And to think that Microsoft Office is actually their only reliable cash cow apart from Windows.”
      –Richard Rasker“Anyway, I think I’ll stick with OpenOffice for the foreseeable future. It simply works, no strings attached. Not to mention the fact that those brainless ** from Redmond have failed to produce a viable version of Microsoft Office for Linux for what, the past decade? ‘Proves that they’re just **, deserving every bit of scorn loaded on their sorry backsides.”

The OpenOffice.org team has meanwhile come up with an interface prototype for future versions of the software, which will be released by Oracle. One of their engineers explains:

The prototyping phase, to create a new user interface for OpenOffice.org, has ended last week. See our monthly project Renaissance status presentation for July and try the prototype yourself (Java 6 required). It is not only about Impress, we are working on a UI for the entire OOo. You will be asked to give feedback when closing the prototype. Make use of it!

Microsoft is obviously nervous about OpenOffice.org because it mentions the "P" word. Microsoft is also very nervous about ODF, which it fought like fire (Microsoft still fights against ODF in more subtle ways [1, 2, 3, 4, 5, 6, 7]). Looking at the past 2 days alone, watch how unfamiliar people are stripping off remaining Microsoft criticism from the ODF article in Wikipedia [1, 2]. How familiar a sight. See for example:

• Microsoft Starts Attacking the ODF Alliance, Sends Paid Wikipedia Editors to ODF Article (Updated)
• OOXML BRM Convenor (Alex Brown) Joins the Pro-Microsoft Wikipedia Spinners
• Microsoft Folks Rewrite ODF’s History and Build Anti-ODF Social Network
• Fraunhofer Again Lobbies for Microsoft Lock-in
• Is Microsoft’s AstroTurf Against ODF Still On?

The latest malicious edits in Wikipedia are pretending that it doesn’t matter what Microsoft does to Wikipedia and what the ODF Alliance says about Microsoft’s behaviour. It gets whitewashed and John Drinkwater reverses it thusly (by calling it “vandalism”). From the first correction:

Revision as of 19:47, 31 July 2009 (edit) (undo)
Johndrinkwater (talk | contribs)
m (Undid revision 305273577 by 200.156.24.98 (talk) revert vandalism)

From the second correction:

Revision as of 21:30, 31 July 2009 (edit) (undo)
Johndrinkwater (talk | contribs)
m (Undid revision 305237624 by 201.51.5.110 (talk) why remove this?)

In other news, somebody claims that “PSPP now supports output on ODF format!”

No wonder Microsoft is so nervous. █

“It’s a Simple Matter of [Microsoft’s] Commercial Interests!“

–Microsoft on OOXML

Summary: Microsoft carries on smearing ODF in public while pretending to support it

Microsoft is still changing ODF’s history and daemonising ODF using Wikipedia. We wrote about that in:

• Microsoft Starts Attacking the ODF Alliance, Sends Paid Wikipedia Editors to ODF Article (Updated)
• OOXML BRM Convenor (Alex Brown) Joins the Pro-Microsoft Wikipedia Spinners
• Microsoft Folks Rewrite ODF’s History and Build Anti-ODF Social Network
• Fraunhofer Again Lobbies for Microsoft Lock-in
• Is Microsoft’s AstroTurf Against ODF Still On?
• Microsoft Windows Discriminates Against ODF, FSF Denounces Microsoft for ODF Abuse
• Microsoft Agents from Waggener Edstrom Airbrush Wikipedia, Glorify Paymaster
• Microsoft Seeks Experts to Corrupt Wikipedia Information on Open XML

Rob Weir has already complained about this. It is part of Microsoft’s ongoing attack on ODF [1, 2] — an attack which it is defending by buying journalists lunch (now confirmed to us by the journalist) so that is can carry on breaking ODF interoperability [1, 2, 3, 4, 5, 6, 7] without public scrutiny.

Weir has just published another rant about Wikipedia, so obviously he keeps track of the continued manipulation by Microsoft — one that we too are seeing because all edits are visible.

I have a mental model of how Wikipedia works and behaves. This may not reflect reality, but it is how I, as an end-user, expect Wikipedia to behave. I think these are reasonable expectations regarding things like standards of proof and balance and that if the real Wikipedia differs substantially from these expectations, then we have a problem.

[...]

Does anyone know whether the above statements have any basis in the aspirations or actual practice of Wikipedia editors and admins? Sadly, my recent reading of some articles suggests that these reasonable expectations are routinely flouted and bear little resemblance to reality.

It’s obvious what Microsoft must be thinking.

“All those haters…”

But to characterise opposition as “anti-Microsoft” is like describing the police as “anti-criminals” and thus “irrational haters”. Microsoft’s behaviour speaks for itself. █

“Their documents display a clear intent to monopolize, to prevent any competition from springing up. And they have used a variety of restrictive practices to prevent that kind of competition.”

–Judge Robert Bork, former US Supreme Court nominee (on Microsoft)

A reader has just sent us a pointer to the following:

Date: Tue, 09 Jun 2009 11:58:15 -0500
From: Wade Smart <wade at wadesmart.com>
Content-Type: text/plain; charset=ISO-8859-1; format=flowed
Subject: [users] Windows Vista Search doesn’t find ODF files….

Gordon wrote:
> I have two documents, one a .odt and one a .doc. (They are the same
> document, just different formats).
> If I search using Vista Advanced Search by Modified Date, (they both
> have the same Modified Date) ONLY the .doc file is shown.
>
>
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20090609 1157 GMT-5

I have noticed that too. A little preferential treatment maybe?

Wade

This just shows how much Microsoft likes ODF, does it not? Microsoft has fought against ODF all along [1, 2] and now it is trying to fragment it with its pseudo-ODF (MSODF [1, 2, 3, 4, 5, 6, 7]).

At the same time, Microsoft is subverting Wikipedia's article on ODF in order to hide the effect of its actions. Just looking at the past couple of days, there are many edits from the usual suspects, e.g.”Ghettoblaster” [1, 2] and Albert Zonneveld (most people know him as "hAl"). Look how hard he has been working in tandem with “Ghettoblaster” in the past couple of days, all to glorify Microsoft [1, 2, 3, 4, 5, 6, 7] (and not just in the article on ODF by the way).

The Microsoft proponents are editing so quickly that those correcting them with messages like “suspected advertisement in promoting microsoft’s product, please provide valid source” are being overridden vainly and swiftly. When it comes to “Ghettoblaster”, here is a person trying to correct his/her promotion of Microsoft and another one correcting an insult of OpenOffice.org.

How about interesting edits that state: “(Undid revision 295165923 by user:HAl how is it not relevent that Rick Jelliffe has admitted recieving money from Microsoft to edit wikipedia, and demanding a sources for unsourced fact)”

For more information about what the Microsoft folks have been doing in Wikipedia (to the ODF article alone), see:

• Microsoft Starts Attacking the ODF Alliance, Sends Paid Wikipedia Editors to ODF Article (Updated)
• OOXML BRM Convenor (Alex Brown) Joins the Pro-Microsoft Wikipedia Spinners
• Microsoft Folks Rewrite ODF’s History and Build Anti-ODF Social Network
• Fraunhofer Again Lobbies for Microsoft Lock-in

What Microsoft is doing gets noticed too. Make no mistake. Microsoft "technical evangelists" (TEs) and staff are participating in this from a distance. We offered proof.

The FSF has meanwhile joined wide opposition to what Microsoft is doing to ODF. The headline states, “Microsoft Office tries to break ODF.”

Just a quick update to our OpenDocument campaign, with news that Microsoft Office has added support for ODF, but in a state that leaves it incompatible with every other ODF capable application out there, including OpenOffice.org and KOffice.

Microsoft has many reasons to be afraid of ODF (which is interoperable). Brazil makes more obvious moves to ODF and as Tony Manco puts it, “open office brasil (BrOO.org) adopts odf and uses more foss software like firefox. [...] BB accepted foss since 2001. 60% of there computers use Linux [...] the rest use another os but have OOo and Firefox installed.”

In other very interesting ODF news, there is more support for this standard from Google.

Google Translator Toolkit currently only allows users to upload HTML, Microsoft Word, OpenDocument Text, Rich Text and Plain Text documents up to 1MB for translation. Alternatively, it’s possible to enter the URL of a file on the web, select a Wikipedia article or a Knol for translation.

Google was among those publicly opposing OOXML, which is proprietary. █

“It’s a Simple Matter of [Microsoft’s] Commercial Interests!“

–Microsoft on OOXML

MICROSOFT hardly believes in unrestricted sharing, so the following case of legitimate copying by Microsoft Bong[sic] is not only an admission of defeat (neglect of Encarta) but it is also a case of Microsoft linking to a GNU licence, which is just so ironic. Microsoft owes Richard Stallman some credit.

We all know that Google’s search engine likes to push Wikipedia links to the top of its results pages. But Microsoft has gone a step further.

[...]

Microsoft doesn’t appear to be editing Wikipedia pages and it’s linking back to the GFDL license, so it would seem that Redmond is free to reproduce the content and even serve ads against it. “An inherent part of our license structure is that downstream commercial uses are allowed,” one longtime Wikipedian tells The Reg. But the GFDL isn’t easily navigated – even for the sharpest legal minds.

GNU is not UNIX and Bing is not Google, but there is more to it than just a playful recursive acronym. Goblin from Boycott Novell reminds us of the meaning of the word “Bing” (he is a Brit by the way).

Bing – “–noun British Dialect. a heap or pile.”

Bing is really quite a pile of something [1, 2, 3, 4, 5, 6, 7] (not a Dogpile). It also piles up other people’s resources. █

“The negative impact of standards for competition are mostly caused by a biased endowment with resources available for the standardization process itself. Therefore. even when the consensus rule is applied, dominant large companies are able to manipulate the outcome of the process, the specification of a standard, into a direction which leads to skewed distribution of benefits or costs in favor of their own interests.” –Prof. Dr. Knut Blind, Fraunhofer

SOME months ago we wrote about the incestuous relationship between Fraunhofer Fokus-DIN-Microsoft. This passionate love affair bears fruit.

Together with Fraunhofer FOKUS, Microsoft is working to streamline the process of exchanging data among organizations leveraging disparate systems. This is why technology industry experts participating in the Document Interoperability Initiative (DII) forum have stressed the need for independent resources set up to offer both testing and validation of files based on IS29500 and ECMA-376 standards implementations. The new tools and website produced by Fraunhofer FOKUS will come to fill this need.

Fraunhofer has made it clear (repeatedly in fact) where it puts its chips. Earlier in the week (and last week) we also showed examples where Microsoft rewrites the history of ODF in order to injure the standard. See for example:

• OOXML BRM Convenor (Alex Brown) Joins the Pro-Microsoft Wikipedia Spinners
• Microsoft Starts Attacking the ODF Alliance, Sends Paid Wikipedia Editors to ODF Article (Updated)
• Is Microsoft’s AstroTurf Against ODF Still On?
• Microsoft Folks Rewrite ODF’s History and Build Anti-ODF Social Network
• From MSODF to MSPDF?

Albert Zonneveld (“hAl”) keeps censoring Wikipedia for Microsoft today. How kind. █

Microsoft has become exceptionally transparent in its anti-ODF activity as of late [1, 2, 3, 4]. It’s not just technical fragmentation of ODF which Microsoft causes [1, 2, 3, 4, 5, 6, 7] in order to reduce interoperability. It is actual out-in-the-open smearing of opposition to Microsoft’s proprietary OOXML, which Microsoft has been breaking many laws for.

“Looking at Wikipedia, we mostly see new changes from the usual Microsoft folks, such as edits from Ghettoblaster, from “hAl” ( Albert Zonneveld), and from Alex Brown too (he is strongly pro-Microsoft).”Looking at Wikipedia, we mostly see new changes from the usual Microsoft folks, such as edits from Ghettoblaster, from “hAl” (Albert Zonneveld), and from Alex Brown too (he is strongly pro-Microsoft). Who are they kidding? These changes are not invisible.

At the same time, Microsoft + Ecosystem is founding an “ODF” area from which to smear ODF. Wouter is starting an online pro-Microsoft tribe, but it is more like unprofessional tripe from people who pretend to be dissociated from Microsoft. All the usual Microsoft folks (Alex Brown, Jesper Lund Stocholm and so on) are soon joining. Even prominent Microsoft employees immediately join in. Of course they are joined by their likes, e.g. SharePoint developers. Yes, they are joining places that go under the “ODF” heading. Why the fear? Like the frantic talk about “Linux”? It’s obsessive. Only later some other people join in, probably in attempt to add balance. In response, Rob Weir also jokingly creates an equivalent group for the opposite direction.

Why is Microsoft so afraid of ODF? And why does it still pretend to have befriended ODF? And if it claimed truthfully that “ODF ha[d] truly win”, then why does it spend so much time smearing it with endorsement and encouragement from Microsoft “Technical Evangelists” (paid cheerleaders and conductors of AstroTurfs), even managers like Gray Knowlton? There is no “New Microsoft”. █

“Pamela Jones [...] has told Infoworld that Microsoft will be the next SCO Group”

–Heise

Summary: New (but familiar) people join Microsoft’s cause against ODF interoperability

LAST NIGHT we saw that Alex Brown, the BRM convenor for OOXML, had joined the anti-ODF cat fight. He has also just become a Wikipedia editor for the article on “OpenDocument”. Any conflict of interests where his relationship with Microsoft comes into play? This morning we found some more mischief in Wikipedia. This carried in in the afternoon (a lot more activity than usual). Here is a removal of Microsoft’s self-referencing smears against ODF and some edits from the vehemently pro-Microsoft “Ghettoblaster“. Joining him again is Rick Jelliffe, to whom Microsoft previously offered money for Wikipedia edits.

“Most people would not suspect a thing because they don’t understand who is involved.”It’s truly fascinating to see how many people or entities serve Microsoft from the outside. Most people would not suspect a thing because they don’t understand who is involved. History matters. Take Black Duck Software for example. Few people know that the genesis of this company is a Microsoft employee. Black Duck Software is currently being used to usher Microsoft into open source software, despite and against the wide opposition to it^*. We wrote about this twice before [1, 2] and we also worry somewhat about SourceForge, which has just acquired some former Microsoft employees.

Microsoft’s activity aside, as was pointed out this morning, Ecuador embraces ODF and IBM is happy about it.

What prompted me to realize this just today? I receive the ODF Alliance Newsletter regularly in my inbox. Today, I noticed the following:

(note that while the URL is in Spanish, the translation can be seen here thanks to Google)
ECUADOR CHARTS PATH TO ODF ADOPTION

More ODF in the news:

i. Audit report on Government’s accessibility raises RTF Vs ODF debate

A recent audit of government documents found there is room for improvement in making government documents accessible. The ANAO is suggesting that the government uses RTF or HTML instead of PDF formats to make its documents more accessible online, but Linux users say better still would be to opt for Open Document Format (ODF).

ii. Standards for Change

I will be happy to work on all this with my colleagues at the OASIS, and also with you, members of the broader Internet community: Citizens, small and large businesses, government, developers, and others. If you are a voting member of the OASIS consortium, don’t forget to cast your ballot this month, it is important.

It will be interesting to see how Microsoft will try to sneak into this one. The monopolist is more likely to send one of its faithfuls into the opposition’s panel. Just watch how they tried to expel Rob Weir and how they hijack ISO [1, 2]. █
____
^* Such opposition is very much justified because Microsoft is suing open source software. It has already sued a European company over software patents and Linux.

Summary: Microsoft — as a group of people — resorts to shooting down all opposition to its subversion of ODF interoperability while Rick Jelliffe, who makes a living from Microsoft contracts, changes Wikipedia to reflect on Microsoft’s convictions

YESTERDAY we saw a Microsoft Most Valuable Professional attacking ODF while joined by a Microsoft "Technical Evangelist" and familiar Microsoft cronies [1, 2, 3]. They are all employees or appendages to this company and they are paid for this in all sorts of ways.

Things intensify even further today. Microsoft folks start discrediting the ODF Alliance. Where does it come from? A Microsoft Most Valuable Professional (see the sidebar) and part of the “Microsoft Regional Director Program”. What a surprise.

“Where does it come from? A Microsoft Most Valuable Professional (see the sidebar) and part of the “Microsoft Regional Director Program”.”Rick Jelliffe, to whom Microsoft offered money to edit Wikipedia, is now tilting the article about OpenDocument in Microsoft’s favour. Here are today’s edits from him [1, 2, 3, 4]. He is joined joined by at least a couple of edits today from another known shill, Albert Zonneveld (aka "hAl").

Microsoft hates ODF and it is trying to destroy it [1, 2, 3, 4, 5, 6, 7]. But it never does such things directly, by its very own admission. █

“It could be argued that Microsoft’s unethical Technology Evangelism (TE) practices are “old news”—i.e., that Microsoft stopped using these questionable TE practices long ago. This is very unlikely to be the case, for at least three reasons.”

–James Plamondon, former Microsoft shill (aka ‘Technology Evangelist’)

Update: First thing in the morning we also find no less than 6 edits [1, 2, 3, 4, 5, 6] from a pro-Microsoft user who goes by the name “Ghettoblaster“. We have previously shown that this is likely a Microsoft person of some kind.

A new survey has just been published.

-Glassdoor.com®, a career and workplace community bringing greater transparency to company cultures and compensation, today released its first annual Employees’ Choice Awards¹, listing the top 50 “Best Places to Work” based on surveys² collected from employees at more than 11,000 companies operating in the United States. General Mills had the highest rating from its employees, followed closely by Bain & Company, Netflix, Adobe, and Northwestern Mutual, which round out the top five companies on Glassdoor’s inaugural list.

Novell is not ranked particularly well and its CEO did not receive an impressive approval rating, perhaps due to the poor decisions that he makes with Microsoft. For those in Novell who are not popular, there is always the possibility of corrupting Wikipedia. From the news:

On top of it all, some critics are still jaded over incidents that surfaced earlier this year in relation to Wikipedia and Jimmy wales. Former Novell scientist and Wikipedia donor Jeff Merkey issued a statement earlier this year essentially accusing Wales of extortion—he claims Wales offered him “special protection” for his Wikipedia entry “in exchange for a substantial donation and other financial support of the Wikimedia Foundation projects.”

Novell is also rewriting history for Microsoft's gain. █

“Our partnership with Microsoft continues to expand.”

–Ron Hovsepian, Novell CEO

–Bill Gates [PDF]

“Another suggestion In this mail was that we can’t make our own unilateral extensions to HTML I was going to say this was wrong and correct this also.”

–Bill Gates [PDF]

“Here’s another which is good to have handy. You’ll probably want to track down the original,” he writes, pointing to:

http://www.kegel.com/remedy/archive/fullstory/vaporwre.PDF.gz
http://www.kegel.com/remedy/archive/fullstory/vaporwre.html.gz

“I [was] commenting in 1995 [while] talking with a co-worker about vaporware screwing up the market and wanted to study it. It seems from the above that someone else got paid to do just that. It would also be good to have handy an itemized list with the items Microsoft has promised enough to hobble competition but failed to deliver, like WinFS for example.”

We have covered several examples of Microsoft vapourware before. It’s endemic. Here is a very partial list that will surely grow over time:

• Imaginary Software Patents as the Modern Equivalent of Vapourware
• If You Lack Good Software, Then Produce “Scareware”
• Vapourware Warning: Old Tricks Persist or Make a Comeback
• BoycottNovell Watches What the Press Says About Service Pack 1 of Windows Vista
• Interesting Old Document About Microsoft’s Vapourware Tactics
• Beware the Vapourware (Microsoft to Save ODF Bunnies, End Global Warning)
• Taking Stock of Microsoft’s Vapourware Announcement
• Groklaw: Microsoft’s ODF Moves Vapourware, Possible Trojan Horse for Software Patents

Some of the posts above contain antitrust exhibits which back the assertion that Microsoft does this deliberately. “Midori” and “7″ are good example of the vapourware du jour.

“We have covered several examples of Microsoft vapourware before.”We have asked the reader if the document can be disseminated better, and if so, how. He asked about our readership and, well… it depends on the statistics package. Webalizer says 60,000 hits per day, or about 15,000 Web pages on average. We flush the logs every night though, for privacy reasons.

As the above seems to be a court record, it can be appended below (uncompressed). but it would be best to be able to prove the provenance of the document. “Best of all would be to be able to point to a government web site with the same content,” our reader adds. Can anyone help identify the source?

“There also might be some finding of fact material which might have more weight. This appears to be the complaints against Microsoft,” the reader concludes. █

STEPHEN D. SUSMAN CHARLES R. ESKRIDGE III JAMES T. SOUTHWICK HARRY P. SUSMAN SUSMAN GODFREY L.L.P. 1000 Louisiana, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 www.SUSMANGODFREY.COM RALPH H. PALUMBO MATT HARRIS PHIL McCUNE LYNN M. ENGEL SUMMIT LAW GROUP PLLC WRQ Building, Suite 300 1505 Westlake Avenue N., Suite 300 Seattle, Washington 98109-3050 Telephone: (206) 281-9881 www.SUMMITLAW.COM PARKER C. FOLSE III SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3090 Seattle, Washington 98101 Telephone: (206) 516-3880 www.SUSMANGODFREY.COM STEPHEN J. HILL (A1493) RYAN E. TIBBITTS (A4423) SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, 11th Floor P.O. Box 45000 Salt Lake City, Utah 84145 Telephone: (801) 521-9000 www.SCMLAW.COM Attorneys for Caldera, Inc. IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION CALDERA, INC., Plaintiff   vs MICROSOFT CORPORATION, Defendant       CALDERA INC.’S MEMORANDUM, IN OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S “PRODUCT PREANNOUNCEMENT” CLAIMS Judge Dee V. Benson Magistrate Judge Ronald N. Boyce Case No. 2:96CV 645B FILED UNDER SEAL TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION RESPONSE TO MICROSOFT’S “STATEMENT OF UNDISPUTED FACTS” ARGUMENT I. CALDERA’S FIRST AMENDED COMPLAINT COMPLIES WITH RULE 9(b) II. TO ESCAPE LIABILITY, MICROSOFT MUST DEMONSTRATE THAT ITS PREANNOUNCED EXPECTATIONS WERE BOTH ACTUALLY HELP IN GOOD FAITH AND OBJECTIVELY REASONABLE A. The Legal Standard Has Both Subjective and Objective Components B. Industry Background: A Context for Procompetitive Product Preannouncement III. MICROSOFT’S PRODUCT PREANNOUNCEMENTS WERE NOT MADE IN GOOD FAITH AND WERE OBJECTIVELY UNREASONABLE A. Microsoft knew what vaporware was and how it could be used effectively to curtail adoption of competitive products by deceiving end users B. Microsoft had a strong motive to lie C. Microsoft lied to trade publications and the government on this exact issue D. Microsoft knew that its internal schedules were “fake” E. Microsoft’s product preannouncements were objectively unreasonable and were not good faith estimates of product availability F. Microsoft’s vaporware dramatically impinged sales of DR DOS 21 IV. MICROSOFT’S ASSERTION OF AN IN PARI DELICTO DEFENSE IS TO NO AVAIL CONCLUSION CERTIFICATE OF SERVICE ATTACHMENT R. Prentice, Vaporware: Imaginary High-Tech Products and Real Antitrust Liability in a Post- Chicago World, 57 Ohio St. L. J. 1163 (1996) TABLE OF AUTHORITIES CASES AD/SAT v. Associated Press 920 F. Supp. 1287 (S.D.N.Y. 1996) American Tobacco Co. v. United States 328 U.S. 781 (1946) Berkey Photo, Inc. v. Eastman Kodak Co. 603 F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980) Bonjorno v. Kaiser Aluminum & Chemical Corp. 752 F.2d 802, 811 (3d Cir. 1984), cert. denied, 477 U.S. 908 (1986) Coleco Industries, Inc. 111 F.T.C. 651 (1989) Commodore Business Machines, Inc. 105 F.T.C. 230 (1985) Dasko v. Golden Harvest Products, Inc. 965 F. Supp. 1467 (D. Kan. 1997) Eastman Kodak Co. v. Image Technical Svcs 504 U.S. 451, 112 S. Ct. 2072 (1992)\ Greyhound Computer v. IBM 559 F.2d 488, 498 (9th Cir. 1977), cert. denied, 434 U.S. 1040 (1978) ILC Peripherals Least Corp. v. IBM 458 F. Supp. 423 (N.D. Cal. 1978) aff’d sub nom. Memorex Corp. v. IBM, 636 F.2d 1188 (9th Cir. 1980), cert denied, 452 U.S. 972 (1981) Image Technical Services, Inc. v. Eastman Kodak Co. 125 F.3d 1195, 1207 (9th Cir. 1997) Intergraph Corp. v. Inhtel Corp. 3 F. Supp. 1255, 1277 (N.D. Ala. 1998) MCI Communications Corp. v. AT&T 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891 (1975) Metal Trading Svcs. v. Trans-World Svcs. 781 F. Supp. 1539, 1543 (D. Kan. 1991) Michael Anthony Jewelers v. Peacock Jewelry 795 F. Supp. 639 (S.D.N.Y. 1992) Oahu Gas Service, Inc. v. Pacific Resources, Inc. 838 F.2d 360, 368 (9th Cir. 1988), cert. denied, 488 U.S. 870 (1988) Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 (1968) Southern Pac. Communications Co. v. AT&T 556 F. Supp. 825 (D.D.C. 1983), aff’d, 740 F.2d 980 (D.C. Cir. 1984) Stonehill v. Security National Bank 68 F.R.D. 24 (S.D.N.Y. 1975) Todaro v. Orbit Int’l Travel, Ltd. 755 F. Supp. 1229 (S.D.N.Y. 1991) United National Records, Inc. v. MCA, Inc. 609 F. Supp. 33 (N.D. Ill. 1984) United States v. Aluminum Co. of America 148 F.2d 416 (2d Cir. 1945) United States v. Griffith 334 U.S. 100, 68 S.Ct. 941 (1948) United States v. Grinnell Corp. 384 U.S. 563, 86 S. Ct. 1698 (1966) United States v. Microsoft 159 F.R.D. 318 (D.D.C. 1995), rev’d, 56 F.3d 1448 (D.C. Cir. 1995) STATUTES Fed. R. Civ. P. 9(b) Fed. R. Civ. P. 12(e) Sherman Act § 2, 15 U.S.C. § 2 OTHER P. Areeda & H. Hovenkamp, Antitrust Law (1996) ¶ 782j J. Moore, Moore’s Federal Practice (2d ed. 1984) Vol. 2A, ¶ 9.03 (and cases cited therein) .3 R. Prentice, Vaporware: Imaginary High-Tech Products and Real Antitrust Liability in a Post-Chicago World, 57 Ohio St. L. J. 1163 (1996) 5A C. Wright & A. Miller, Federal Practice and Procedure (2d ed. 1990) Vol. 5A, § 1394 COMES NOW Caldera, Inc. complaining of Microsoft Corporation, and files this Memorandum in Opposition to Defendant’s Motion for Partial Summary Judgment on Plaintiff’s “Product Preannouncement” Claims, and would show the Court as follows: Return to Table of Contents INTRODUCTION Long before April 1990, Microsoft had grown complacent and was resting on its MS-DOS monopoly. DRI’s announcement of DR DOS 5.0 caught Microsoft by surprise. DR DOS 5.0 was far superior to any product that Microsoft had on the market, and had many compelling features Microsoft did not even have under development. Moreover, Microsoft’s current version, MS-DOS 4.01, was widely regarded as a buggy, bloated product. Microsoft realized that OEMs and end users had a compelling reason to switch from MS-DOS to DR DOS and that if they switched, they might never switch back. In order to preempt the adoption of DR DOS 5.0, Microsoft engaged in a continuous and systematic preannouncement plan designed specifically to injure DRI. Because the truthful release date of MS-DOS 5.0 would not preempt DR DOS sales, Microsoft did not tell the truth. When DR DOS 6.0 later leapfrogged MS-DOS 5.0 shortly after it shipped, Microsoft preannounced a version of MS-DOS that never shipped until four years later, and only then as the DOS component of Windows 95. And when Novell DOS 7.0 loomed on the near horizon, Microsoft preannounced both MS-DOS 7.0 and Windows 95. MS-DOS 7.0 never shipped. As to Windows 95, Microsoft again missed its announced release-date by over a year. Worse, Microsoft falsely informed the world Windows 95 would not need DOS to run. In each instance, Microsoft’s modus operandi remained largely the same: (1) preannounce a new release immediately after DRI announced a new release; (2) falsely promise a shorter-than-expected release date to curtail DOS users from buying DR DOS; (3) study the new DR DOS version to ascertain its features in order to add those features to its promised version; and (4) deliberately slip the release date in small increments to keep MS-DOS users within the fold. In some instances, Microsoft went further by promising features on a release that it knew would not be included in the next release. Caldera has overwhelming evidence that Microsoft made preannouncements about their products that were not only in bad faith and objectively unreasonable, but also were knowingly false and misleading. This evidence is more than sufficient to raise a genuine issue of fact regarding the legality of Microsoft’s vaporware practices. Summary judgment should be denied. Return to Table of Contents   RESPONSE TO MICROSOFT’S “STATEMENT OF UNDISPUTED FACTS” Caldera disagrees in every material respect with Microsoft’s purported “Statement of Undisputed Facts.” Caldera incorporates by reference its Consolidated Statement of Facts as if set forth here in its entirety. Caldera responds to the numbered paragraphs in Microsoft’s purported “Statement of Undisputed Facts.” as follows: 1. Disagreed. The testimony and exhibits referred to confirm only that, prior to November 1989, Mircosoft had entirely abandoned architectural design and control of future MS-DOS versions, but that at some point after December 1989 took such control back from IBM. See Consolidated Statement of Facts, 20-26,33-33. 2. See response to ¶ 1, supra. Microsoft also ignores that its only plans by the end of 1989 were to release MS-DOS 4.1 in 1990. See Consolidated Statement of Facts, ¶ 87. 3. Disagreed. The cited testimony does not support Microsoft’s assertion. To the extent that more developers were assigned to the MS-DOS team, such assignment was made only after DR DOS 5.0 was announced. Lennon Depo. at 42. 4. Agreed. 5. Lennon’s testimony speaks for itself. Caldera disagrees that the cited testimony supports Microsoft’s assertion. At best, by April 1990 Microsoft had been thinking about a next version of MS-DOS for only four months. See Consolidated Statement of Facts, ¶ 87. Microsoft also ignores all evidence that its witnesses’ self-serving testimony was not credible, and that testimony about purported schedules was neither objectively reasonable nor actually held in good faith. See id. at ¶¶ 87-101, 307-318, 353-374. Moreover, Microsoft ignores that its internal schedules are “fake.” See id. at ¶¶ 85-86, 101, 309, 311, 315, 361-363, 368, 370. 6. Werner’s testimony speaks for itself. See response to ¶ 5, supra. 7. Chestnut’s testimony speaks for itself. See response to ¶ 5, supra. 8. The status report is quoted accurately. See response to ¶ 5, supra. The “MS-DOS 5.0 Postmortem Report” confirmed this schedule was false and not realistic. See Exhibit 195; Consolidated Statement of Facts, ¶ 86. 9. See response to ¶ 8, supra. 10. See response to ¶ 5, supra. Microsoft also ignores that it was adding significant features in response to DR DOS 5.0, and that this would necessarily delay the schedule. SeeConsolidated Statement of Facts, ¶¶ 88-89, 95-96, 99. 11. Disagreed. MS-DOS 5.0 was nowhere near “code complete” by May 1990. Important features were still being added at least until July 1990. See Consolidated Statement of Facts, ¶¶ 95-97, 99. 12. The document is quoted accurately. But see response to ¶¶ 5 and 8, supra. Microsoft was clearly ignoring what impact features added in response to DR DOS 5.0 would have on its schedules. See Consolidated Statement of Facts, ¶¶ 99-100. 13. Caldera agrees only that a bogus first beta shipped on June 11, 1990. The beta was nowhere near a final product, and Microsoft knew that. See Consolidated Statement of Facts, ¶¶ 95-97, 99.   14. A beta version may generate “talk” within the industry. Such fact has absolutely nothing to do with Microsoft’s conduct in proactively contacting the media to announce an imminent ship date, and to contact its OEMs around the world to fully disclose its plans and purported schedule. See Consolidated Statement of Facts, ¶¶ 90-94, 102.   15. Disagreed. The exhibit cited is merely a public relations memo, and itself suggests a release to manufacture in 1991. Feedback from the first beta revealed numerous bugs, and Microsoft already knew that its schedule was going to be much-delayed. See Consolidated Statement of Facts, ¶¶ 95-97, 99.   16. Caldera’s First Amended Complaint speaks for itself.   17. Disagreed. The DR DOS 5.0 beta test cycle lasted five months. Microsoft’s cited exhibits do not support a shorter time estimate. Moreover, Microsoft ignores the fact that no significant new features were added to DR DOS 5.0 after the first beta.   18. Disagreed. Exhibit 25 refers only to a “retail” product, which Microsoft at the time was planning to be MS-DOS 4.1. See Consolidated Statement of Facts, ¶ 87. Exhibit 26 contains within it no reference to DRI’s purported perception of availability of any MS-DOS product in Summer 1990.   19. The document says what it says. Microsoft’s interpretation is incorrect. By “announcement,” it is clear DRI was at best asserting an understanding that Microsoft planned to ship a beta version by May 22, 1990.   20. Agreed that DRI discussed DR DOS 5.0 publically on April 23, 1990, and May 14, 1990.   21. Disagreed. DRI released DR DOS 5.0 in June 1990. See Consolidated Statement of Facts, ¶ 73. Indeed, Microsoft states this elsewhere as an undisputed fact. See Disparagement Memorandum, ¶ 13. Moreover, the delay was not because of any known incompatibility problem, but was simply to ensure the fact that DR DOS 5.0 was compatible with Windows 3.0, which shipped in May 1990. See Consolidated Statement of Facts, ¶ 90 n.15.   22. The document says what it says. Microsoft wishes to downplay the devastating testimony elicited in regard to this document’s content. See Consolidated Statement of Facts, ¶¶ 90-93, 108.   23. Disagreed. The industry’s perception of Microsoft’s neglect and stagnation of MS-DOS 5.0 was accurate. See Consolidated Statement of Facts, ¶¶ 15-16, 20-26, 30-33, 71-73.   24. The magazine articles say what they say. Microsoft ignores the fact that its employees initiated contact with these magazines to “leak” plans. See Consolidated Statement of Facts, ¶¶ 90, 91, 98, 107-108.   25. As to the truthfulness of Chestnut’s statements, see response to ¶ 5, supra.   26. Microsoft did not just discuss its plans with “various OEMs,” but with virtually all of its OEMs worldwide. See Consolidated Statement of Facts, ¶¶ 90-94, 100, 102. Microsoft ignores the nature of the presentations given, and the fact that they were given specifically to diffuse interest in DR DOS 5.0. See Id., ¶¶ 91-93, 102, 104. Moreover, Microsoft ignores that disclosure to an OEM under a non-disclosure agreement is a fiction insofar as Caldera’s vaporware allegations are concerned. See Id., ¶ 104.   27. Discussing plans with ISVs is not a “public announcement” per se. But Microsoft ignores that its own witnesses have stated such disclosure under NDA is a complete fiction, and that Microsoft expects there to be leaks. See Consolidated Statement of Facts, ¶¶ 104, 314.   28. Agreed.   29. The articles speak for themselves. Mark Chestnut provided the information regarding estimated ship date, which by that time was contradicted even by Microsoft’s internal records. SeeConsolidated Statement of Facts, ¶¶ 98-100.   30. See response to ¶ 5, supra. The credibility of these witnesses is clearly at issue.   31. The document speaks for itself. See response to ¶¶ 5 and 8, supra. This schedule is clearly of the “fake” variety explained in the Consolidated Statement of Facts, ¶¶ 85-86.   32. See response to ¶ 31, supra.   33. Agreed.   34. Disagreed. Microsoft has long attempted to use the arrival of Brad Silverberg as an after-the-fact alibi for its knowingly false and misleading preannouncement of MS-DOS 5.0. Microsoft would have this Court believe that an outsider from Borland came to Microsoft and knew more about getting the Microsoft core product which accounted for over forty percent of its yearly revenue to market than did the senior Microsoft officials in charge of the product. It is utterly a matter of credibility. Whether the jury wishes to believe Microsoft’s self-serving explanations in this regard is up to them. Brad Silverberg is clearly the least credible of all of Microsoft’s many veracity-challenged witnesses. See Consolidated Statement of Facts, ¶¶ 106-107, 210, 214-215, 236, 238, 310 n. 29, 330-331.   35. See response to ¶¶ 5 and 34, supra.   36. See response to ¶¶ 5 and 34, supra.   37. See response to ¶¶ 5 and 34, supra.   38. See response to ¶¶ 5 and 34, supra. A full explanation regarding the schedule for MS-DOS 5.0 appears in Caldera’s Consolidated Statement of Facts, ¶¶ 83-109.   39. Agreed that MS-DOS 5.0 was commercially released on June 6, 1991. Evidence in the case shows that Microsoft announced the product would be available as early as August 1990. See Consolidated Statement of Facts, ¶ 91. Accordingly, counting the month of August 1990, there was actually a delay of eleven months. Microsoft also attempts to downplay that MS-DOS 5.0 did not ship until fifteen months after being originally “leaked” to media and OEMs.   40. Some delay and slight schedule slips may be normal. However, the delay attendant to MS-DOS 5.0, 6.0, 7.0 (which still has not shipped) and Windows 95 are not at all normal and common.   41. Only truthful product preannouncements are a common industry practice.   42. The announcement of DR DOS 5.0 was entirely truthful. To the extent its schedule was delayed for less than a month it was to ensure compatibility with Windows 3.0, a major product that happened to ship immediately prior to the planned shipment of DR DOS 5.0. SeeConsolidated Statement of Facts, ¶ 90.   43. DRI’s announcement of DR DOS 6.0 was truthful, and the predicted dates were met. See Consolidated Statement of Facts, ¶¶ 186, 307. Microsoft makes no assertion to the contrary.   44. Novell’s announcement of Novell DOS 7.0 was truthful. The delay in its release arose when Novell decided to more closely integrate the product with networking capabilities. SeeConsolidated Statement of Facts, ¶ 349 n. 33.   45. Edwards’ testimony speaks for itself. He explicitly confirmed that the Novell DOS 7.0 feature set was largely complete, and had in fact entered early beta tests. Edwards FTC Decl. ¶ 65. A larger question, however, was whether the FTC could fashion relief to make its marketing worthwhile. Id. ¶ 73.   46. The testimony is quoted accurately. But see response to ¶ 44, supra.   47. Disagreed. Microsoft’s plans for Windows 95 never changed after June 1992. SeeConsolidated Statement of Facts, ¶¶ 328-331. Microsoft’s plans for Windows 95 were constantly and ceaselessly communicated to OEMs and the entire world. See Consolidated Statement of Facts, ¶¶ 356-360, 364-367, 369, 371-373.   48. Only truthful product preannouncements serve procompetitive functions.   49. See response to ¶ 48, supra. Return to Table of Contents ARGUMENT Caldera has set forth the controlling summary judgment standards in its Consolidated Statement of Facts at 7-11. As shown above, numerous issues of fact exist, requiring jury trial. More importantly, as to Caldera’s allegations concerning vaporware, a controlling issue is the credibility of Microsoft’s witnesses. Doubts as to the credibility of Microsoft’s witnesses infect these summary judgment proceedings, especially as to whether its personnel have been candid about their beliefs when Microsoft products would be available. Such doubts are only to be resolved by the jury, and the Court should deny summary judgment for this reason as well. See Id., at 9-11; Metal Trading Svcs. v. Trans-World Svcs., 781 F. Supp. 1539, 1543 (D. Kan. 1991) (“summary judgment is rarely appropriate where the factfinder must determine state of mind”). I. CALDERA’S FIRST AMENDED COMPLAINT COMPLIES WITH RULE 9(b) Microsoft argues in passing that certain of Caldera’s preannouncement allegations are not pleaded with the particularity required by Fed. R. Civ. P. 9(b), and thus should be dismissed as a matter of law. Preannouncement Memo. at 9-10. Rule 9(b) states: (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Fed. R. Civ. P. 9(b) (emphasis added). Caldera has not pleaded fraud. As discussed below, Caldera need only prove, at most, that Microsoft’s product preannouncements were “knowingly false or misleading” when made. Both “knowledge” and “intent” are specifically exempted from Rule 9(b)’s specificity requirement. Fed. R. Civ. P. 9(b). Beyond this, Microsoft has waived any objection to the particularity of Caldera’s preannouncement claims. The proper vehicle to raise such a challenge is by a Rule 12(e) motion for a more definite statement. Fed. R. Civ. P. 12(e). Microsoft filed a detailed answer to Caldera’s First Amended Complaint on January 23, 1998. Although it raised 12 affirmative defenses, Microsoft raised no Rule 9(b) objection. Only now over one year later has Microsoft identified this purported pleading deficiency. It is too late for Microsoft to raise this challenge. See Dasko v. Golden Harvest Products, Inc., 965 F. Supp. 1467, 1474 (D. Kan. 1997): “Defendants cannot argue almost a year later that plaintiff failed to plead fraud with particularity.” The specificity requirements of Fed. R. Civ. P. 9(b) have been imposed to ensure that a defendant is apprised of the fraud claimed in a manner sufficient to permit the framing of an adequate responsive pleading. A party who fails to raise a timely Rule 9(b) objection normally waives the requirement. See Todaro v. Orbit Int’l Travel, Ltd., 755 F. Supp. 1229, 1234 (S.D.N.Y. 1991); United National Records, Inc. v. MCA, Inc., 609 F. Supp. 33, 39 (N.D. Ill. 1984); see also Stonehill v. Security National Bank, 68 F.R.D. 24, 44 n.38 (S.D.N.Y. 1975); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1394 at 778 (2d ed. 1990); 2A J. Moore, Moore’s Federal Practice ¶ 9.03 at 9-35 (2d ed. 1984) (and cases cited therein). Beyond waiver, Microsoft is clearly on notice of Caldera’s allegations in this regard. Microsoft propounded, and Caldera answered, an interrogatory specifically addressing this claim. Brad Silverberg, Brad Chase, Mark Chestnut, Tom Lennon, Russ Werner and Rich Freedman senior Microsoft employees responsible for various versions of MS-DOS and Windows 95 were each subjected to extended cross-examination on Microsoft’s vapor practices regarding MS-DOS 5.0, 6.0, 7.0 and Windows 95. Caldera’s allegations regarding vaporware are of no surprise to Microsoft. Return to Argument Return to Table of Contents II. TO ESCAPE LIABILITY, MICROSOFT MUST DEMONSTRATE THAT ITS PREANNOUNCED EXPECTATIONS WERE BOTH ACTUALLY HELD IN GOOD FAITH AND OBJECTIVELY REASONABLE Microsoft disclosed false and misleading information prior to releasing three separate products in order to divert purchasers from buying superior DOS products marketed as DR DOS 5.0, 6.0 and Novell DOS 7.0. Microsoft engaged in this conduct with the intent to maintain a monopoly in the DOS market. See Goodman Report at 6. Product preannouncements are analyzed under Section 2 of the Sherman Act. 15 U.S.C. § 2. “The offense of monopoly under Section 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, 86 S. Ct. 1698, 1704 (1966). The second element refers to “the use of monopoly power ‘to foreclose competition, to gain a competitive advantage, or to destroy a competitor.’” Eastman Kodak Co. v. Image Technical Svcs, 504 U.S. 451, 481, 112 S. Ct. 2072, 2089 (1992) (quoting United States v. Griffith, 334 U.S. 100, 107, 68 S. Ct. 941, 945 (1948)). Microsoft does not contest that it has possessed and maintained monopoly power in the relevant market. Alcoa was decided under unique circumstances that enhance its weight and as precedent. The Second Circuit sat under a statute that authorized it to render a decision “in lieu of a decision by the Supreme Court,” and provided that such decision “shall be final and there shall be no review of such decision by appeal or certiorari or otherwise.” 28 U.S.C. 21§ 09 (formerly 15 U.S.C. § 29). Microsoft has not contested the fact that its many preannouncements were, indeed, false. Microsoft supports its motion for summary judgment solely on the contention that there is no evidence of Microsoft’s knowledge that its statements were false when made. Preannouncement Memo. at 4-5. As developed below and in its Consolidated Statement of Facts, Caldera has compiled a massive record that easily withstands summary judgment. Return to Argument Return to Table of Contents A. The Legal Standard Has Both Subjective and Objective Components A monopolist, like any other vendor, is free to make or not to make advance announcements of new products. Such announcements are lawful so long as they “truly reflect the monopolist’s expectations about future quality or availability where that expectation is both actually held in good faith and objectively reasonable.” P. Areeda & H. Hovenkamp, Antitrust Law ¶ 782j, at 267-68 (1996) (emphasis added). Although Microsoft cites several cases discussing predatory product preannouncements under Sherman Act § 2, the appropriate standard of conduct that suffices as “willful maintenance” of Microsoft’s monopoly is more relaxed than that distilled by Microsoft. Areeda & Hovenkamp discuss predatory product preannouncement at length in their highly regarded antitrust treatise. They specifically address and condemn the precise tactics identified by Caldera here against Microsoft: Consider a rapidly evolving product, such as a computer. A monopolist’s announcement that a greatly improved model will soon be available may discourage present sales of a rival’s product that is superior to the monopolist’s present product. Buyers may prefer the monopolist’s promised model. If that new model appear later than announced and is actually comparable to or only slightly better than the rival’s unchanged product, buyers may nevertheless purchase it, although they would have dealt with the rival at the time of the monopolist’s original announcement if they had known then the actual deliver dates or quality of the monopolist’s new model. In that event, rivals would have been unfairly disadvantaged by the monopolist’s false statements or predictions about its future product quality and availability dates. If the monopolist’s original announcement was a knowingly false statement of material fact designed to deceive buyers, it would easily qualify as an exclusionary practice when potentially significant in effect. Ordinarily, however, the monopolist would not be describing a present state of facts. It would be making an estimate about the quality and production timetable of products not yet in existence. Statements leading the reasonable buyer to believe future quality or availability of the product will be better than the monopolist expects should be treated just like a false statement of present fact. But no 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. Such reasonable good faith statements about research, development, and forthcoming production serve the social interest in maximizing the relevant information available to buyers. P. Areeda & H. Hovenkamp, Antitrust Law ¶ 782j, at 267-68 (1996) (emphasis added). As such, a monopolist clearly may not make advance product announcements that are “knowingly false or misleading.” MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1129 (7th Cir.), cert. denied, 464 U.S. 891 (1975). Such preannouncements amount to exclusionary conduct in violation of Section 2 of the Sherman Act. Id.; accord Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 288 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980): “A monopolist is not forbidden to publicize its product unless the extent of this activity is so unwarranted by competitive exigencies as to constitute an entry barrier.” But Microsoft fixates only on the “knowing falsehood” standard, and thus loses sight of the more important, overarching enquiry: whether its preannouncements were not actually held in good faith or otherwise were objectively unreasonable. Even under the “knowing falsehood” standard, Caldera clearly meets its burden merely by showing some evidence of misleading statements. None of Microsoft’s cases are to the contrary, and indeed, the opinions are filled merely with skepticism about the quantum of evidence there presented. For instance, in ILC Peripherals Leasing Corp. v. IBM, 458 F. Supp. 423, 442 (N.D. Cal. 1978), aff’d sub nom. Memorex Corp. v. IBM, 636 F.2d 1188 (9th Cir. 1980), cert. denied, 452 U.S. 972 (1981) (emphasis added), the court stated “[i]t was never entirely clear to the court what Memorex claimed was inaccurate about the announcement of NCP.” See also MCI, 708 F.2d at 1129 (“Neither AT&T’s application to the FCC for permission to file the Hi-Lo rate, nor the accompanying press release contains any false or misleading information about Hi-Lo or its availability”); Berkey Photo, 603 F.2d at 287-88 (“Advertising that emphasizes a product’s strengths and minimizes its weaknesses does not, at least until it amounts to deception, constitute anticompetitive conduct violative of § 2″); AD/SAT v. Associated Press, 920 F. Supp. 1287, 1301 (S.D.N.Y. 1996) (“There is no evidence in this case to support the claim that AP knowingly made false statements in announcing AdSEND, and there is some evidence to contradict it”); Southern Pac. Communications Co. v. AT&T, 556 F. Supp. 825, 965 (D.D.C. 1983) (“as the Court views the evidence, it was the FCC and the specialized carriers, not AT&T, that brought about the delay of which plaintiffs complain here”), aff’d, 740 F.2d 980 (D.C. Cir. 1984). Caldera’s case suffers from no such similar evidentiary deficiency: Microsoft’s practices are well-documented, long-standing, and replete with willful deception. Return to Argument Return to Table of Contents B. Industry Background: A Context for Procompetitive Product Preannouncement In order to appreciate the impact of Microsoft’s vaporware campaign, the Court must understand the importance of the market introduction period to a software vendor in general, and in particular, to a competitor in the DOS market. The effort required to build and bring to market a new piece of operating system software is substantial, in terms of both human and financial capital, and requires an investment of tens of millions (and possibly hundreds of millions) of dollars in development and marketing. Because of the particular competitive situation that DRI foresaw when it decided to bring a directly competitive DOS product to market, it knew that the product’s market introduction period would be critical. See Consolidated Statement of Facts, ¶ 74. Given Microsoft’s size, resources, and monopoly position in the DOS market, DRI reasonably expected that Microsoft would not sit idly by in the face of a major technological advance. After some period of time, DRI expected that Microsoft would be able to bring a competitive product to market and that competition would likely grow intense. The key was thus to recoup some if its investment and obtain a return reflecting the product’s innovations in the window between introduction of successive versions of DR DOS and the introduction of a competitive Microsoft product an opportunity that a competitive marketplace should reasonably be expected to provide. See Consolidated Statement of Facts, ¶¶ 71-75. In a very real sense, Microsoft’s preannouncement campaign slammed DR DOS’s window of opportunity shut indeed, never even allowed it to be opened. Neither DRI nor Novell was allowed their rightful marketplace recognition or reward for the very real advances made with DR DOS 5.0, 6.0 and Novell DOS 7.0 particularly in regard to the lucrative, high-volume OEM channel. Without such recognition or reward, little incentive exists to continue to bring such technological advances to computer users throughout the world. See Goodman Report at 6. Before considering Microsoft’s preannouncements of MS-DOS 5.0, 6.0, 7.0, and Windows 95, the Court should also understand the nature of the software development process. There are a number of milestones recognized in the industry: specification a written description of the functions and structure of the program prototype a program that actually provides a sample of the product as it would function coding writing of the actual code to be used in the commercial product alpha fully functional, stable program with all features contained in specification; in the alpha stage the code may be sent to a limited number of users who often have a close relationship with the developer alpha 1.x – x.x revisions of original alpha code beta fully functional, stable code, sufficient to allow productive work and outside testing; beta test sites are normally unrelated to the developer and often include major customers beta 1.x – x.x revisions and enhancements to original beta based on beta site input and internal testing finished code code frozen for commercial production and distribution See generally Ivie Report at 14-19; Goodman Report at 4-5. The above milestones inform whether a product preannouncement is made in good faith and objectively reasonable. Within this system of milestones, an “announcement” which suggests the imminent availability of a commercially viable product must be judged to be, at a minimum, clearly misleading until the product’s development has at least resulted in a stable, fully functional, program containing all of the features anticipated to be in the finished code. In terms of the above milestones, this would mean a product which has reached an advanced beta state. Prior to this point, there is simply too much chance for problems to arise which would require deletion or major revision of a feature or function and postponement of commercial availability to allow a representation of this type to be made. One of Microsoft’s own chief developers confirmed this exact point: “at least until the feature set was completely defined for a new release like [an operating system], any schedule is going to be largely meaningless.” Lipe Depo. at 90. Indeed, the “schedule slips” Microsoft now tries to foist on the Court as excuses arose only because Microsoft made its preannouncements during the “specification” and “prototype” phase of development while at the same time making specific representations of imminent availability of the commercial product. See Consolidated Statement of Facts ¶¶ 87-89, 95-97, 100, 309, 310-313, 315, 357-363, 368. Withholding predictions as to availability would in no way prevent Microsoft or any other developer from releasing information about a product under development at any stage of its process. The developer simply cannot assert that a product is nearing commercial viability until it has reached a stage that is close enough to its final commercial form to allow reasonably accurate claims to be made. Federal Trade Commission consent orders under Section 5 of the FTC Act have taken this general approach, and banned announcements concerning product availability when made without a basis in fact. For example, in Commodore Business Machines, Inc., 105 F.T.C. 230, 244 (1985), the Commission alleged that Commodore had falsely stated that it had developed a microprocessor that permitted its computer far greater software processing capability. In its consent order, Commodore agreed not to represent that a “product will be available for sale to the public or will have any capability, unless at the time of such representation respondent possesses and relies upon a reasonable basis for said representation.” See also Coleco Industries, Inc., 111 F.T.C. 651, 660 (1989) (same language as to false claim that certain product enhancements were presently available for sale). Microsoft’s actions should similarly be condemned. Microsoft has a legitimate right only to communicate honest information about real products. It cannot use lies and disinformation to insulate its monopoly position against competition. Any restriction on false and misleading product preannouncements in no way threatens to chill the procompetitive conduct of successful firms, for false and deceptive statements can never serve a procompetitive purpose. Even Microsoft’s own economist agrees with this proposition. Schmalensee Depo. at 183-184. Return to Argument Return to Table of Contents   III. MICROSOFT’S PRODUCT PREANNOUNCEMENTS WERE NOT MADE IN GOOD FAITH AND WERE OBJECTIVELY UNREASONABLE A. Microsoft knew what vaporware was and how it could be used effectively to curtail adoption of competitive products by deceiving end users Microsoft is well-versed in the use of vaporware tactics to dampen interest in the products of its competitors. Microsoft’s use of vaporware traces back to the very origins of the company, when Bill Gates informed MITS the manufacturer of the world’s first PC that he had a version of BASIC ready to run on the first personal computer, when he had yet to write a single line of code. See Consolidated Statement of Facts, ¶ 5. Gates received a mock honor of the “Golden Vaporware Award” for his preannouncement of the first version of Windows to preempt entry by VisiOn, a GUI announced in 1983 when by 1985 it still had not shipped. See R. Prentice, supra n.3, at 1181 (attached). When Microsoft entered into the Consent Decree with the DOJ in 1994, Judge Sporkin refused to enter it based on the DOJ’s refusal to address Microsoft’s rampant vaporware practices. See United States v. Microsoft, 159 F.R.D. 318, 334-36 (D.D.C. 1995), rev’d, 56 F.3d 1448 (D.C. Cir. 1995) (finding district court to have exceeded permissible scope of review). Moreover, Microsoft frequently appears on industry “vaporware” lists, and has a long list of vaporware “kills” to its credit. See R. Prentice, supra n. 3, at 1178-1184 (attached). These aprocryphal stories are confirmed by documents produced by Microsoft in this case. On October 1, 1990 five months after Microsoft begins its vaporware campaign against DR DOS 5.0 Nathan Mhryvold (in discussing a threat from Sun Microsystems) sent the following memo to the Microsoft executive staff, explaining why and how Microsoft could use preannouncement to crush the demand for a competitive product: The purpose of announcing early like this is to freeze the market at the OEM and ISV level. In this respect it is JUST like the original Windows announcement. This time we have a lot better development team, so the time between announce and ship will be a lot smaller. Nevertheless we need to get our message out there. We certainly do need to follow this announcement up with a good demo in 6-8 months when the SDK ships, but preannouncement is going to give Sun a real problem. Exhibit 83 (X0195817-821) (emphasis added) Mhyrvold elsewhere explained at length how Microsoft killed VisiCorp with vaporware: Microsoft “preannounced Windows, signed up the major OEMs and showed a demo to freeze the market and prevent VisiOn from getting any momentum. It sure worked VisiOn died, VisiCorp died, and DOS kept on chugging.” Exhibit 21. By Spring 1991, Microsoft’s executive staff considered a fpresentation from Jeremy Butler a senior executive that “business tactics” of “destroying the competition” with “preemptive announcements” was a “questionable” practice. Exhibit 121 (emphasis added). But by that time, egregious damage had been inflicted on DR DOS sales. Return to Argument Return to Table of Contents B. Microsoft had a strong motive to lie Microsoft had a tremendous motive to lie. In June 1990, DR DOS surged ahead of MS-DOS in the “feature war,” and never fell behind. Microsoft at every point thereafter had a motive to lie about forthcoming, imminent availability of new versions of MS-DOS. DR DOS 5.0 shipped in June 1990. In April 1991, Joachim Kempin confirmed that DR DOS 5.0 had been “a far superior product to MS-DOS for the preceding nine months.” Kempin Depo. at 263. Moreover, the MS-DOS 5.0 Post Mortem Report noted that the compelling DR DOS 5.0 feature set was “[o]ne of the most important stimulants for adding features” to MS-DOS 5.0. Exhibit 195; see Consolidated Statement of Facts, ¶ 96. DR DOS 6.0 shipped in September 1991. Microsoft executives had already recognized that it would be available “at least a year ahead of MS-DOS 6.” Exhibit 153; see Consolidated Statement of Facts, ¶ 307. Bill Gates also acknowledged that, for Microsoft’s next version of MS-DOS to be competitive to DR DOS, they would have to “match the garbage that DR DOS does.” Exhibit 285; see Consolidated Statement of Facts; ¶ 188. Yet, the specifications for MS-DOS 6.0 were not even on the drawing board until February 1992. Consolidated Statement of Facts, ¶¶ 311, 315-318. When Novell announced its feature set for Novell DOS 7.0 in March 1993, Microsoft knew again that DR DOS had hit the mark. Richard Freedman MS-DOS product manager since MS-DOS 6.0 wrote Chase and Silverberg: if they really release a version with all this junk in it, it will mean that for three ms-dos releases in a row (5, 6 and 7), DR will have had our key features in their product 12-18 months before us (kernel in HMA, compression, VxD/multitasking). given that track record, it’s going to be impossible to shake this “MS as follower” image. it’s been very difficult so far as it is. Exhibit 350 (MS7085933-934) (emphasis added) In each instance, Microsoft realized it was behind. In each instance, the record confirms that Microsoft deliberately chose to begin leaking its “plans” to dampen interest in the products. SeeConsolidated Statement of Facts, ¶¶ 87-109, 307-319, and 353-374. Return to Argument Return to Table of Contents C. Microsoft lied to trade publications and the government on this exact issue Caldera’s Consolidated Statement of Facts sets forth at great length the evidence pertaining to Microsoft’s preannouncement of MS-DOS 5.0 to kill DR DOS 5.0 sales. As explained there, the industry became rightly suspicious of Microsoft’s conduct, and PC Week investigated, ultimately writing an article entitled “Microsoft Outlines DOS 5.0 to Ward Off DR DOS.” Consolidated Statement of Facts, ¶ 105. Brad Silverberg replied in a letter submitted to PC Week shortly thereafter. Id. ¶ 106. Because Silverberg knew that his letter would be reprinted for everyone in the industry to read, the Court may assume Silverberg knew he was, in fact, addressing the entire industry. His misrepresentations are set forth alongside directly contradictory evidence in the record: What Brad Silverberg said: The truth of the matter is: “The feature enhancements of MS-DOS version 5.0 were decided and development was begun long before we heard about DR DOS 5.0″ Exhibit 90. “One of the most important stimulants for adding features was competitive pressure from DR DOS 5.0, which we first learned of in the Spring of 1990. The DR DOS feature set led us to add UMB support, task swapping, and undelete.” Exhibit 195(MS-DOS 5.0 Post Mortem Report); Consolidated Statement of Facts, ¶ 96. “As for the timing of the leaks, it was not an orchestrated Microsoft plan nor did the leaks come from Microsoft.” Exhibit 90. “On the PR side, we have begun an ‘aggressive leak’ campaign for MS-DOS 5.0. The goal was to build an anticipation for MS-DOS 5.0, and diffuse potential excitement/momentum from the DR DOS 5.0 announcement.” Exhibit 49(DR DOS 5.0 Competitive Analysis); Consolidated Statement of Facts, ¶ 90. “Aggressive it means that we were calling them, basically.” Chestnut Depo. at 118; Consolidated Statement of Facts, ¶ 108. “Thus, to serve our customers better, we decided to be more forthcoming about version 5.0.” Exhibit 90. “. . . diffuse potential excitement/momentum from the DR DOS 5.0 announcement.” Exhibit 49 (DR DOS 5.0 Competitive Analysis); Consolidated Statement of Facts, ¶ 90. “We are distributing to you a comparison between MS-DOS 5.0 and their version. Inform your customers as discussed. Keep them at bay.” Exhibit 51 (Kempin directive to domestic and international OEM sales force); Consolidated Statement of Facts, ¶ 94. “Virtually all of our OEMs worldwide were informed about DOS 5, which diffused DRI’s ability to capitalize on a window of opportunity with these OEMs.” Exhibit 62(Chestnut performance review); Consolidated Statement of Facts, ¶ 102. Microsoft misled the government in the exact same way. The Department of Justice briefly looked into vaporware allegations. Bill Neukom submitted a letter to the Department of Justice on May 19, 1994. His misrepresentations are emphasized: Reporters from PC Week, Infoworld and Computerworld contacted Microsoft for comments on MS-DOS 5.0. At the same time, Microsoft was concerned about reports that DRI was telling OEMs that Microsoft had no ongoing commitment to MS-DOS, and Microsoft’s PR Department was advising product groups to be more responsive to inquiries about products under development to avoid a repeat of the problems caused by Microsoft’s ‘no comment’ approach to questions about Windows 3.0 prior to its May 1990 release. Prompted by these concerns, Microsoft responded to the unsolicited inquiries of these three publications. Articles disclosing Microsoft’s work on MS-DOS 5.0 were published in the April 30 editions of PC Week, Infoworld and Computerworld. Microsoft conducted no ‘proactive’ briefings on MS-DOS 5.0 with any reporter who wasn’t under NDA. Exhibit 423 (emphasis added) Mark Chestnut directly contradicted these statements in his deposition in this case, and he (not Bill Neukom) was the man in charge of this campaign at the time Microsoft took it. Chestnut Depo.at 118 (“Aggressive it means that we were calling them, basically”). Microsoft was clearly not telling the truth. Moreover, doubts as to Microsoft’s credibility infect the testimony of all of Microsoft’s witnesses on this issue. If Caldera is right that Silverberg, Chestnut, Lennon, Werner and others were lying at the time or more gently stated, were making claims not actually held in good faith or which were objectively unreasonable then, not surprisingly, those witnesses would continue that self-same lie in this case. Indeed, that appears to be Microsoft’s true defense: consistently repeat the same falsehood, and maybe some day, someone will believe it is true. See Preannouncement Memo. at 5-6. Whether the jury chooses to believe Microsoft at trial is up to them. Under controlling summary judgment standards, however, this Court is not to assess credibility, but must instead simply view the evidence in the light most favorable to Caldera. See Consolidated Statement of Facts at 7-11 (Summary judgment standards). This Court is entitled to send the matter to trial based solely on the severe damage Caldera has inflicted on Microsoft’s credibility on the whole. See, e.g., Consolidated Statement of Facts, ¶¶ 45, 58, 106-108, 115, 210, 214-215, 236, 238, 246-247, 253, 258-259, 266-270, 310 n. 29, 314, 330-331, 334, 342, 389-390, 400. Return to Argument Return to Table of Contents D. Microsoft knew that its internal schedules were “fake” One of the chief architects of Windows 95 testified that “at least until the feature set was completely defined for a new release like Windows 95, any schedule is going to be largely meaningless.” Lipe Depo. at 90 (emphasis added). Because Microsoft always preannounced long before its feature set was complete, its predictions were always misleading: The Windows 95 feature set was changing all the way into mid-1994. Lipe Depo. at 90. Microsoft began its preannouncement in August 1992. Consolidated Statement of Facts, Id., ¶ 356. The MS-DOS 7.0 feature set was never finalized. Id.,¶ 368. Microsoft began its preannouncement at least by August 1993. ¶ 367. The MS-DOS 6.0 feature set was not final until at least February 1992. Id.,¶317 Microsoft’s first leaks were in September 1991. Id. ¶¶ 310-312. The MS-DOS 5.0 feature set was not final until July or August 1990 Id. ¶ 99. The “aggressive leak” campaign began in April 1990. Id. ¶ 90. Microsoft repeatedly suggests that its own internal schedules reflect the “truth” of the preemptive announcements its executives were making. See, e.g., Preannouncement Memo. at 5-7. Internal records, however, amply demonstrate that Microsoft’s schedules do not in any way reflect reality. For instance, Windows 3.0 had shipped in May 1990 just as Microsoft began its vaporware announcements concerning MS-DOS 5.0. The “Windows 3.0 Post Mortem” contained the following remarkable admissions: Schedule *Set by BillG (upper management) before feature definitions are outlined. *Problem motivating people to achieve “fake” ship dates. *Need to be more realistic in our schedules. *Lying to people on the team about schedules. Morale hit to the team. *How to separate out development schedules and the schedules we give to other groups (USSMD or upper management) without appearing to “lie” to the product team. Exhibit 47 (emphasis added) The “MS-DOS 5.0 Postmortem Report” similarly reveals a “fake” schedule had been set up for MS-DOS 5.0: [I]t did seem at times that individuals were confused about how Program Management intended to use their time estimates. Some individuals produced estimates that represented best-case scenarios, rather than realistic ones, and then were surprised to see their best-case guesses show up on schedule charts. Others felt a lack of trust when they found their estimates questioned by Program Management. Better explanation of the goals and methods of scheduling could have helped clear up some of these problems. Exhibit 195 (emphasis added) Microsoft suggests that Brad Silverberg’s arrival is an after-the-fact alibi for its knowingly false, misleading, bad faith, objectively unreasonable preannouncement of MS-DOS 5.0. See Preannouncement Memo at 6-7. Microsoft would have this Court believe that an outsider from Borland came to Microsoft and knew more about getting the Microsoft core product which accounted for over forty percent of Microsoft’s yearly revenue to market than did the senior Microsoft officials in charge of the product. It is utterly a matter of credibility. Whether the jury wishes to believe Microsoft’s self-serving explanations in this regard is up to them. Brad Silverberg is clearly the least credible of all of Microsoft’s many veracity-challenged witnesses. SeeConsolidated Statement of Facts, ¶¶ 106-107, 210, 214-215, 236, 238, 310 n. 29, 330-331. And Phil Barrett a senior developer put on the MS-DOS 5.0 team in May 1990 testified that he knew then that neither the schedules, the beta test plans, nor even the overall assignments of responsibility were reasonable. Id. ¶ 97. As to DR DOS 6.0, Microsoft initially responded by leaking plans about MS-DOS 5.1 a product for which no final specifications or schedules even exist. See Consolidated Statement of Facts, ¶ 309. Brad Silverberg as early as September 6, 1991, was making presentations to OEMs stating that a new version of MS-DOS was “coming soon.” Yet he had been specifically advised that version 6.0 “was not defined yet and we need to know what it is before we ship it.” Exhibit 162. Silverberg admitted that disclosure of a version as “coming soon” does not comport with shipping eighteen months later as was the case with MS-DOS 6.0. Silverberg Depo. at 128. Even as late as February 1992, Silverberg was acknowledging the falsity of the prior preannouncements: “but realistically, msdos6 is still quite a ways off. . . . i presume msdos won’t be until mid-to-late ’93.” Exhibit 274 (MS7022698). As to Novell DOS 7.0, Microsoft frequently leaked and discussed its “plans” for MS-DOS 7.0, although no final, confirmed specification even exists. See Consolidated Statement of Facts, ¶ 368. Richard Freedman MS-DOS product manager at the time specifically testified that any leak as to MS-DOS 7.0 alone (as opposed to “Chicago”) would have been vaporware, because “there was never a formal schedule and a launch plan and a marketing team and the whole nine yards for this thing.” Id. at 118; see also id. at 125, 134, 161-162. Moreover, leaks as to Windows 95 began as early as August 1992, predicting a late 1993 release. See Consolidated Statement of Facts, ¶ 353-356. The leaks continued unabated through the launch of MS-DOS 6.0 in March 1993. See Id., ¶¶ 357-360. Direct evidence shows internal awareness that such schedules were never realistic. For instance, in April 1993, David Cole reported to Bill Gates that internal schedules were, as always, of the “fake” variety he had identified as long ago as May 1990 with Windows 3.0, see Consolidated Statement of Facts, ¶ 85: Getting this product out quickly is serious business for us. The original RTM goal we established was Dec 93. I don’t think anyone believed this date, but we built our feature set and scheduled for that goal. As expected the minimum compelling feature set could not be completed and tested in time. The team was not making the optimistic progress planned for in the schedule. Exhibit 353 (emphasis added) Also in April 1993, Cole sent the following e-mail to Paul Maritz and Brad Silverberg to not reveal that the Windows 95 schedules were unrealistic and would not be met: I’m really counting on you to keep mum about the potential Chicago schedule slip, even within systems. All plans should proceed toward April. Apparently carl stork knows about the situation and will probably loosen his belt, if he even hints at this to Intel we are really screwed. The pressure must stay on. Making statements to the Cairo group really has potential to screw us up. Same for OLE. For now it must be M4, M5, M6 then April. ok? Exhibit 352 (emphasis added) Indeed, the leaks and promises that continued all the way into 1994 were based on fake schedules that continued to be out of step with developers’ internal views. On April 7, 1994, a schedule circulated to Microsoft marketing personnel that “Chicago” would be released to manufacturing on September 30, 1994, provoking the following comment: WOW If you are REALLY still telling the field the RTM is Sept 30 and if you are REALLY serious we have a ton of work to do VERY fast?!! Is this just propaganda mail??? Making me nervous about getting the channel lined up this fast if you are serious. . . . . Exhibit 418 Return to Argument Return to Table of Contents E. Microsoft’s product preannouncements were objectively unreasonable and were not good faith estimates of product availability Caldera’s technical expert, Evan Ivie, has looked at the facts and circumstances surrounding Microsoft’s preannouncement of MS-DOS 5.0 in connection with the evidence showing the work required to be done to ship a product meeting the announcements. His opinion is that Microsoft’s preannouncements were objectively unreasonable. Ivie Report at 38. As to MS-DOS 5.0, Silverberg confirmed the schedule was unreasonable, as did Phil Barrett. See Consolidated Statement of Facts, ¶ 97. Similar recognition appears as to MS-DOS 6.0, 7.0 and Windows 95. Microsoft musters no evidence in its summary judgment papers to counter this opinion, which the jury is entitled to hear and consider when it weighs the evidence. Return to Argument Return to Table of Contents F. Microsoft’s vaporware dramatically impinged sales of DR DOS The entire purpose of Microsoft’s vaporware campaign was to stifle sales of DR DOS. Microsoft had seen these tactics work before. See Consolidated Statement of Facts, ¶¶ 84, 109. They also acknowledged, especially in regards to DR DOS 5.0, that these tactics snuffed out DRI’s sales. Caldera’s industry expert, John Goodman, emphasizes the severe damage inflicted by preannouncement of MS-DOS 5.0, 6.0, 7.0 and Windows 95. Goodman Report at 6. Microsoft began preannouncing MS-DOS 5.0 in May 1990. By the end of August 1990, Microsoft knew its tactics were working indeed, OEMs were already actually licensing MS-DOS 5.0, over ten months before launch. See Id., ¶ 102. Chestnut’s self-evaluation in his performance review for the period ending June 15, 1990 was quite candid: “virtually all of our OEMs worldwide were informed about DOS 5, which diffused DRI’s ability to capitalize on a window of opportunity with these OEMs.” Exhibit 62; see also Exhibit 94 (“DR-DOS has not yet been able to gain any momentum in Korea. We have slowed them down with consistent seminars on MS-DOS 5.0 . . .”). See generally Goodman Report at 6. Silverberg, too, acknowledged that vaporware puts a competitor behind, and keeps him behind: “Once you lose a lot of ground it is very very hard to pick up.” Exhibit 274. As to DR DOS 6.0, Silverberg knew that by February 1992, Microsoft’s vaporware had thus far been effective in keeping DRI at bay: “We can’t just sit on the sidelines ’til MS-DOS 6, hoping FUD and leaks will carry us.” Exhibit 273. As to preannouncement of MS-DOS 7.0 and Windows 95, Paul Maritz and Brad Silverberg as early as July 1992 had identified vaporware of “Chicago” as the best way to keep Novell DOS 7.0 at bay. See Consolidated Statement of Facts, ¶¶ 353-354. But apart from misrepresentation about when the products would ship, Microsoft told the world “Chicago” was a Windows operating system that would not require MS-DOS to run. See, e.g. Exhibit 316 (“Maybe we need a corporate Chicago tour later this year that under NDA shows how we are going to mate DOS and Windows and shows how Chicago technically can’t work on DR-DOS?”); Exhibit 347 (“The next version of Windows . . . will not need DOS to run, Maritz said”); Exhibit 364 (“Code-named Chicago, the next version of Windows will not need DOS in order to run”). This signal from Microsoft that the DOS market would be destroyed under Windows 95 led Novell to withdraw from active development and marketing of successor versions of DR DOS. See Consolidated Statement of Facts, ¶ 374. As shown in Caldera’s forthcoming Response to Microsoft’s Motion for Partial Summary Judgment Regarding “Technological Tying,” all of these many preannouncements were false. Return to Argument Return to Table of Contents IV. MICROSOFT’S ASSERTION OF AN IN PARI DELICTO DEFENSE IS TO NO AVAIL Microsoft appears to suggest that both DRI and Novell also preannounced successive versions of DR DOS to preempt Microsoft. Preannouncement Memo. at ¶¶ 18-20, 42-46. Yet this allegation, even if true, would present no defense for Microsoft. First, Microsoft is a dominant monopolist with 90% market share. See Consolidated Fact Statement at 2 n.2. As one court recently observed in a case involving a similarly dominant monopolist (Intel), the antitrust law imposes “affirmative duties”on monopolists to refrain from anticompetitive conduct. Intergraph Corp. v. Intel Corp., 3 F. Supp. 1255, 1277 (N.D. Ala. 1998). As noted there, even conduct by a monopolist that is otherwise lawful may violate the antitrust laws where it has anticompetitive effects. Image Technical Services, Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1207 (9th Cir. 1997) (“Legal actions, when taken by a monopolist, may give rise to liability, if anticompetitive.”); Greyhound Computer v. IBM, 559 F.2d 488, 498 (9th Cir. 1977), cert. denied, 434 U.S. 1040 (1978) (otherwise lawful conduct may be unlawfully exclusionary when practiced by a monopolist); Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 811 (3d Cir. 1984), cert. denied, 477 U.S. 908 (1986) (“When a monopolist competes by denying a source of supply to his competitors, raises his competitor’s price for raw materials without affecting his own costs, lowers his price for finished goods, and threatens his competitors with sustained competition if they do not accede to his anticompetitive designs, then his actions have crossed the shadowy barrier of the Sherman Act”); Oahu Gas Service, Inc. v. Pacific Resources, Inc., 838 F.2d 360, 368 (9th Cir. 1988), cert. denied, 488 U.S. 870 (1988) (“Because of a monopolist’s special position the antitrust laws impose what may be characterized as affirmative duties”). Second, Microsoft’s argument is nothing more than the assertion of the long-discredited “in pari delicto” defense: “Although in pari delicto literally means of ‘equal fault,’ the doctrine has been applied, correctly or incorrectly, in a wide variety of situations in which a plaintiff seeking damages or equitable relief is himself involved in some of the same sort of wrongdoing.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138 (1968). The Supreme Court has been emphatic: “[W]e held in Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211 (1951), that a plaintiff in an antitrust suit could not be barred from recovery by proof that he had engaged in an unrelated conspiracy to commit some other antitrust violation.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138 (1968). At best, Microsoft is simply asserting that DRI and Novell also engaged in vaporware practices similar to Microsoft. As Perma Life points out, such assertion, even if true, provides absolutely no defense against Caldera’s antitrust claims. And clearly, DRI’s and Novell’s practices are in no way similar. DR DOS 5.0 was delayed, at most, one month to confirm compatibility with Windows 3.0, a major software introduction that occurred just prior to the intended release of DR DOS 5.0. See Consolidated Statement of Facts¶ 90 n. 15. Dr DOS 6.0 shipped exactly as announced. Id. ¶ 186. Although originally slated for release in late Summer 1993, Novell briefly delayed release of Novell DOS 7 until December 1993, see Exhibit 394, due primarily to Novell’s decision to include Novell’s peer-to-peer networking product, Personal NetWare, in the final version of Novell DOS 7. Personal NetWare was also released as a standalone product in January 1994. Tucker Depo. at 273; Corey Depo. at 231-232; Exhibit 380. See Consolidated Statement of Facts ¶ 349 n. 33. Significantly, Microsoft makes absolutely no argument that any announcement by DRI or Novell was anything but completely truthful. Return to Argument Return to Table of Contents CONCLUSION For all of the foregoing reasons, Microsoft’s Motion for Partial Summary Judgment Regarding Plaintiff’s “Product Preannouncement” Claims should be denied. Max D. Wheeler (A3439) Stephen J. Hill (A1493) Ryan E. Tibbitts (A4423) SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, Eleventh Floor Post Office Box 45000 Salt Lake City, Utah 84145 Telephone: (801) 521-9000 Ralph H. Palumbo Matt Harris Phil McCune Lynn M. Engel SUMMIT LAW GROUP WRQ Building, Suite 300 1505 Westlake Avenue North Seattle, Washington 98109 Telephone: (206) 281-9881 Return to Table of Contents Respectfully submitted, SUSMAN GODFREY L.L.P. Stephen D. Susman Charles R. Eskridge III James T. Southwick Harry P. Susman SUSMAN GODFREY L.L.P. 1000 Louisiana, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 Parker C. Folse III SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3090 Seattle, Washington 98101 Telephone: (206) 516-3880 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on April ____, 1999, true and correct copies of the above and foregoing instrument (Case No. 2:96CV0645B, U.S. District Court, District of Utah, Central Division) were sent via Federal Express to: Richard J. Urowsky Steven L. Holley Richard C. Pepperman, II SULLIVAN & CROMWELL 125 Broad St. New York, N.Y. 10004 James R. Weiss PRESTON, GARES ELLIS & ROUVELS MEEDS 1735 New York Avenue, N.W. Washington, D.C. 20006 Return to Table of Contents James S. Jardine Mark M. Bettilyon RAY, QUINNEY & NEBEKER 79 South Main, Ste. 500 (84111) Post Office Box 45385 Salt Lake City, UT 84142 William H. Neukom Thomas W. Burt David A. Heiner, Jr. MICROSOFT CORPORATION One Microsoft Way Building 8 Redmond WA 98052   Charles R. Eskridge III

Novell’s Jeff Merkey

Wikipedia deals with a controversial story of drama and misconduct. In thus latest episode, Wikipedia suffered a major blow after this incident involving an indirect exchange of money. Jeff Merkey (of “Novell fame”) and Jimmy Wales come under the radar.

The toughest two weeks of Wikipedia co-founder Jimmy Wales’s career just became a whole lot worse, with a former chief scientist at one of the world’s biggest technology companies claiming Wales traded Wiki edits for donations.

Jeff Merkey, a former computer scientist at Novell, claims Wales told him in 2006 that in exchange for a substantial donation from Merkey, he would edit his uncomplimentary Wikipedia entry to make it more favourable.

Novell, Novacoast and Other Partners

A Novell Platinum Partner, Novacoast, acquires a company.

Bill Long, President of Integrated Network Systems, commented, “We look
forward to becoming part of the Novacoast family and are eager to continue
and grow our relationship with Novell. This partnership will provide us
access to greater resources and expertise in order to grow our business and
provide a broader range of solutions and expertise to our customers through
Novell product offerings.”

Tim Wolfe, North American President of software manufacturer Novell,
Inc., said, “The growth of Novacoast into these new markets is good news
for Novell and our customers. Novacoast is one of our top solution partners
in North America and Integrated Network Systems has been a strong Novell
partner in the Gulf Coast for over a decade. The merging of these two great
partners will result in a broader adoption of Novell technologies into new
and existing customers. It’s great to see our partners successfully growing
their business by partnering with Novell to develop world-class solutions
to their customers’ business problems.”

Another Novell (and Microsoft) partner, Warren Wyrostek, writes about certifications, including Novell’s.

If you have ever taken a Novell exam, a Microsoft exam, a Cisco exam, and/or a CompTIA exam, you probably have been told to answer the questions on the exam the way the given vendor wants you to answer the questions.

Don’t worry if the answer is ridiculous; if you want to get certified, give the Novell answer, or the Microsoft answer, or the Cisco answer, or the CompTIA answer. For the same question, each vendor could potentially have different correct responses. This is maddening at best.

Customers and Products

Novell’s software sneaks its way into Corpus Christi.

The City of Corpus Christi chose Touchpaper primarily for its ITIL expertise, and its tight integration with Novell desktop management tools and CiscoWorks Network Management.

GroupWise gets a hand with another new software integration.

Omni Technology Solutions Inc. (Omni) www.omni-ts.com and The Long Reach Corporation, www.infoathand.com, announced the immediate availability of Riva GroupWise Integration for info@hand.

Riva GroupWise Integration for info@hand provides transparent, server-side, bi-directional synchronization of appointments, tasks, notes and contacts between info@hand Customer Relations and Business Management (CRBM) and Novell GroupWise. Opportunities, quotes and cases are synchronized from info@hand to GroupWise. The Riva ConnectBar™ allows users to open info@hand opportunities, quotes and cases directly from their GroupWise clients. There are no modules to install on the info@hand CRBM server, on the GroupWise server or on the GroupWise clients.

That’s about all for this week. Next week will be busier and nosier because of BrainShare. █