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The Novell v. Microsoft Case - Statute of Limitations Explained
Sunday, November 14 2004 @ 10:14 PM EST

Now that Novell has filed suit against Microsoft, the question arises whether and to what extent Groklaw will be covering the litigation. I was thinking of hitting only the headlines, mainly because of concern about resources and how fully my time is already used, and because I didn't see a clear connection to Free and Open Source. But I got an email from Groklaw reader marbux, who, as most of you know, is an attorney, now retired, and he expressed an interest in covering the case in depth. He believes that the evidence that will be unearthed is going to be useful in the future, should Microsoft actually attack Linux with some trumped up patent infringement lawsuit, whether directly or through a proxy. Like maybe this one?

I asked him to explain the connection he sees between this case and FOSS, and while he was at it, he has provided a very clear explanation of the statute of limitations argument Microsoft has raised, and so here is his article for your consideration. I note, by the way, looking at page 5 of the Caldera v. Microsoft order he links to that Burst was one of the companies given the opportunity to copy documents prior to their destruction by Canopy Group.

*********************************

The Novell v. Microsoft - Statute of Limitations Explained
~ by marbux

On the day following the November 11 Veterans Day holiday in the U.S., Novell filed a major antitrust complaint against Microsoft, seeking mega-damages for Microsoft's alleged anti-competitive behavior destroying most of the value of the WordPerfect word processor and QuattroPro spreadsheet programs.

Novell acquired WordPerfect Corp. through a stock-swap merger in 1994 and purchased QuattroPro from Borland the same year, but sold the WordPerfect and QuattroPro programs to Ottawa developer Corel Corp. in 1996. (This history is summarized in the Novell complaint. If you'd like a more detailed review of the rise and fall of WordPerfect Corp., one of the software giants of the Microcomputer Revolution, I heartily recommend Almost Perfect, by W. E. Pete Peterson, former WordPerfect Corp. executive and part owner. The book is now out of print but the HTML version can be read online without charge.)

Microsoft officials settled anti-trust claims involving Novell's Netware operating system last week, but said they were unable to settle Novell's WordPerfect-related claims because Microsoft believes an applicable 4-year statute of limitations bars Novell from litigating those claims. PJ reported the lawsuit's filing and Microsoft's reaction the same day the case was filed in this Groklaw article.

So this article is to provide background on the case and aid discussion among the Groklaw regulars regarding the importance of this case to free and open source software (FOSS). If Groklaw takes on this case as a project, do folks think that would be a worthwhile project? If so, how might people be willing to help?

I believe the Novell-Microsoft case, regardless of outcome, could have a major beneficial impact for FOSS, providing we watch it closely. Groklaw is uniquely positioned to collect and disseminate information about the case. In a nutshell, the Novell complaint promises a bonanza of evidence that Microsoft engages in unfair competition to maintain its monopoly in the PC software operating system market and to extend that monopoly to the application markets.

At a minimum, following this case will help prepare us better to understand the IBM unfair competition counterclaims in the SCO v. IBM case. But even better, evidence of such tactics can establish Microsoft's improper motives as part of an unfair competition defense to later Microsoft lawsuits or legislative attacks on FOSS, such as lawsuits asserting Microsoft's alleged intellectual property rights like patents and copyrights as weapons against FOSS. The existence of such a database may also to some degree deter Microsoft from pursuing such tactics.

There have been previous unfair competition lawsuits against Microsoft. However, there has been no systematic effort by the FOSS community that I am aware of to gather and disseminate such evidence. History suggests, however, that such an effort is warranted. Evidence can be a perishable commodity. We already have strong indications from other cases such as Burst v. Microsoft that Microsoft has had a document retention policy that has resulted in routine destruction of corporate emails, sometimes even, according to Burst, if they related to looming litigation issues. Microsoft's response to that accusation can be read here.

Moreover, there are indications that Microsoft normally includes a requirement in its settlement documents that public access be removed to Microsoft documents acquired in litigation. Caldera, for example, developed an extraordinary online collection of Microsoft documents relating to the DR-DOS anti-trust case; however, that database -- along with Microsoft's own extensive online collection of relevant court documents -- disappeared from the Web shortly after Microsoft settled with Caldera. (A post-settlement stipulated order in the Caldera v. Microsoft case governed destruction of discovery documents, but allowed copying by other anti-trust litigants suing Microsoft before destruction.)

A public and freely available repository for such evidence would be an incredible resource for FOSS lawyers, developers, and users likely to need such evidence in the future. Unfair competition defenses to IP lawsuits require, by definition, that the motive of anti-competitive acts be proved. The acts must not only be proved to have an anti-competitive effect, but also that they were knowingly intended to have such effects. Bear in mind that it's a truism of anti-trust litigation that even lawful acts taken for an unlawful anti-competitive purpose are unlawful.

Demonstrating the existence and effect of Microsoft's acts may often be easy. But proving its motives may be more difficult because that requires a subjective inquiry into Microsoft's state of mind. Collecting evidence of Microsoft's intent driving its anti-competitive acts can be crucially important, because evidence of prior conduct is evidence admissible to show a later improper state of mind, just as subsequent conduct may be used to show a prior state of mind. See e.g., Grandstaff v. City of Borger, Texas, 767 F.2d 161, 171 (5th Cir. 1985; cert. denied, 480 U.S. 916. In other words, if and when Microsoft unleashes its lawyers on the FOSS community, evidence that surfaces in the Novell case can be used later to show Microsoft's anti-competitive intent. Many of us believe that such a Microsoft attack on FOSS is already under way and that the SCO litigation is only a thinly-disguised opening salvo.

I respectfully urge as many of you as can find the time at least to skim the Novell complaint linked above. It is unusually long (68 pages) and detailed, but it's a good read. It announces Novell's intent to rummage deeply in Microsoft's heaping hamper of soiled linen. The complaint contains a multitude of allegations describing systematic and specific efforts by Microsoft to impede third-party developers, to destroy standards, to curtail interoperability, to provide its own application developers advanced access to Windows application programming interfaces (APIs) and undocumented system API calls made available only to Microsoft's own developers. It quotes critical Microsoft emails that Novell's lawyers have obviously been collecting for years. My favorite so far is a quoted email from a Microsoft official to investor Warren Buffet:

"If we own the key 'franchises' built on top of the operating system, we dramatically widen the 'moat' that protects the operating system business."
Novell Complaint, paragraph 62.

Assuming Microsoft later goes after OpenOffice.org or other key "franchises" of the Linux desktop, do you think such a document might be admissible to show anti-competitive intent?

The complaint rehashes much of the DoJ-Microsoft antitrust case's factual rulings, but I promise you that the complaint just keeps getting better the farther you read.

You'll find the details of Microsoft's successful effort to suppress the OpenDoc open source standard and replace it with Microsoft's closed source OLE. Watch in awe as Novell tells the story of Microsoft destroying the future of the cross-platform AppWare application development tools. Be astounded by the adroit moves as Microsoft crushes the most commercially successful program of the time, as Novell describes it, deflating WordPerfect's market share from 47 percent to 10 percent worldwide in the space of two years, without bothering to develop an equivalent replacement. Here we're going to be treated to a battle of the titans over a serious claim to more than $3 billion in damages. This is nothing like SCO's near-ludicrous claim for billions of IBM's dollars. And Novell just got Microsoft to bankroll the lawsuit to the tune of the $536 million Netware settlement. No budget-minded plaintiff in this lawsuit.

Microsoft's planned assertion of the statute of limitations defense promises early disclosure of Microsoft's alleged tawdry dealings. Novell has armored up its complaint to withstand a motion to dismiss, forcing a likely summary judgment battle at the beginning of the case. So unlike the SCO v. IBM litigation, we'll likely be seeing the dirt relatively soon. Indeed, we're already seeing much of it in Novell's complaint.

Here's why Novell's complaint will likely force an early summary judgment factual inquiry by the court. Novell has raised three barriers to the statute of limitations defense. The first is unlikely to be contested, a stipulated agreement by Microsoft to stop the statute of limitations clock for the last year while the parties tried to negotiate a settlement. Novell's first real line of attack on the statute of limitations defense is part of the federal anti-trust laws, 15 U.S.C. 16(i), Section 5 of the Clayton Act, which somewhat confusingly states in relevant part:

(i) Suspension of limitations

Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private or State right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 or 15c of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.

So after finally parsing that language successfully, Novell understandably alleges facts to establish that the government's original complaint in the DoJ-Microsoft case included allegations that Microsoft had improperly attempted to crush competition in the word processing and spreadsheet markets, and that at least some of the relevant allegations were litigated to a conclusion and decided in the Feds' favor. It also pleads the date of the final consent decree entered in that action. Novell's lawsuit is timely because it was filed within one year of the final decree, the complaint argues, if you ignore the time in which the limitations period was suspended by stipulation.

All well and good, but even without doing legal research, we can infer there may be some relevant ambiguity in the case law construing the above-quoted statute, or the statute of limitations would not have been a barrier to settlement. Moreover, many of the Microsoft acts Novell complains of occurred more than four years before the DoJ filed suit. So what is the Novell complaint's second line of attack on Microsoft's statute of limitations defense? That's where things become very interesting and explains why FOSS advocates should be highly interested in this case from the outset.

In complaint paragraph 22, Novell alleges:

By agreement, the parties further tolled the running of the statute of limitations as of November 7, 2003 through the time this action was filed. Novell's claims are also tolled because Microsoft's entire course of conduct constitutes a continuing violation in pursuit of a single anti-competitive objective, namely the destruction of Novell office productivity applications in order to eliminate competition in the office productivity applications markets and to maintain its monopoly in the PC operating systems market. Microsoft's avowed campaign to "slaughter" Novell dates at least to the early 1990s, and each pattern, practice, and overt act by Microsoft alleged herein took place as part of that single continuous campaign. Novell has suffered harm within the applicable limitations period from every act that Microsoft has undertaken in furtherance of that campaign prior to the limitations period.
Elsewhere, Novell alleges that the harm it suffered is cumulative.

The key elements of Novell's theory are underscored above. Various equitable doctrines avoid harsh results of statutes of limitations in appropriate cases. The one Novell is invoking is the doctrine of the "continuing wrong." To better understand the theory involved, let's try a simpler, more down-home analogy. Let's hypothesize that you purchase a home. Several years later, the Kinder-Gentler Chemical Co. (KGCC) erects a chemical plant next door. Twenty years after that, while washing your car your liver falls out onto the ground, and investigation eventually traces the cause to benzene wastes that were injected by KGCC into the groundwater beneath its plant and subsequently migrated to your well.

Let's say there's a two-year statute of limitations for personal injury in your jurisdiction and you noticed that your water tasted funny nearly 20 years ago. KGCC can prove it because you told neighbors about it. Does this mean that you were on notice of the pollution way back then, and that KGCC escapes liability unless you can prove that the particular benzene molecules that destroyed your liver migrated through the property line only within the last two years?

That may be a literal interpretation of the relevant statute of limitations, but the courts recognize the injustice of a strict application under the circumstances. So they reason that each separate molecule of benzene that traveled from KGCC's property to your well was a separate wrongful overt act. The barrage of similar overt acts recurred more or less continually, and happened as part of a continuing single scheme of misconduct intended by KGCC to avoid the expense of proper hazardous waste disposal with a reasonably foreseeable likelihood of causing the harm you suffered. Moreover, medical testimony establishes that the harm inflicted by the benzene pollution on your liver occurred because of cumulative exposure to the benzene over the 20-year period. It is not possible to attribute the entire injury to any particular molecule of benzene trespassing on any given date, although it is fairly certain that your benzene exposure is the cause. Therefore, you have been the victim of a "continuing wrong" and the statute of limitations is tolled for the entire 20 years of trespassing pollution before your liver fell out. You need only file your lawsuit within two years of the day you first saw your liver lying on your driveway.

Notice that the theory transfers the benefit of the doubt to you rather than giving KGCC that benefit. Courts regard this as a just resolution because it was KGCC's continuing misconduct that created the doubt, not any act or omission by you.

Returning to Novell's complaint, Novell has alleged that it suffered analogous injuries in the form of its loss of sales, its sale of WordPerfect and QuattroPro at an enormous loss, and injury to its reputation and customer good will. Those injuries were cumulative in the sense that none of Microsoft's bad acts can be isolated as the sole or proportional cause of the injury. The injury is not divisible by the acts that caused them. Therefore, the harm was cumulative, and flowed from a pattern of overt acts all undertaken as part of a single unlawful scheme by Microsoft to protect its Windows monopoly and extend it to the office productivity software market. Because the harm was cumulative and some of that harm occurred within the time allowed by the statute of limitations, the complaint argues, there is no rational basis for denying the right to sue for the entire harm. In the Microsoft-Novell context, Novell also alleges facts establishing that the cumulative injury was actually intended by Microsoft, so there is an additional equitable legal argument available, that Microsoft lacks the clean hands necessary to invoke the statute of limitations. And thus, the statute of limitations should not apply.

What's important to our present discussion is the position all of that puts Microsoft in if it wishes to pursue early dismissal of Novell's case. Novell has in effect realleged its entire anti-trust complaint in support of a legal theory for overcoming the statute of limitations defense.

It will be very difficult for Microsoft to avoid litigating all of its alleged bad acts as part of asserting its statute of limitations defense. When a case is arguably subject to a statute of limitations defense, the federal courts require that plaintiffs plead the facts raising the defense and the facts that avoid it. Because Novell has affirmatively pleaded the facts constituting its avoidance of that defense, and because those facts are the same facts establishing the alleged anti-trust violations, a motion to dismiss is unlikely to succeed.

Therefore, Microsoft will be required to file a motion for summary judgment, attaching a multitude of affidavits from its officials and experts, testifying that Novell is wrong, that some of the alleged acts didn't happen, and even for those that did, Microsoft's motives were pure. This is going to be a case about Microsoft's motive. In effect, Microsoft has to early on disclose the identity of their witnesses for the trial and offer the substance of what they will testify to at trial. Whereupon Novell's lawyers file their evidence supporting the numerous allegations of the complaint, establishing a genuine dispute over material facts, requiring a trial on the statute of limitations defense. Discovery commences, and Novell's lawyers proceed to beat up on the people who executed affidavits for Microsoft, calling their credibility into question.

I suspect that the Novell negotiators never discussed in detail with Microsoft the continuing wrong theory for avoiding the statute of limitations defense, only the Clayton Act statutory grounds. So my guess is that Microsoft just got hit with the clue stick; over the next few days, it's going to begin to sink into the minds of the folks at Redmond that they just may have a tiger by the tail.

Novell, the stealth instigator of the DR-DOS anti-trust case, just demonstrated it is highly familiar with the DR-DOS evidence that caused a whopping settlement. (Indeed, one of the law firms representing Novell in its new case was also listed as a recipient of the discovery order in the DR-DOS case linked above.) Novell has the DOJ-Microsoft evidence. It knows about the Sun-Java evidence. It has the newly revealed WordPerfect evidence. And it intends to force Microsoft to litigate those issues. Let me assure you that this complaint was not researched and drafted in a single day, week, or even month. Novell has obviously been building its files on Microsoft for years. Welcome to the Novell circus, Microsoft! Just hold onto this tail for a moment, will you please? We'll be right with you.

I would not be surprised if Microsoft abruptly reconsiders its decision to break off negotiations. On the other hand, Microsoft has a demonstrated pattern of stumbling along in litigation until it is thoroughly embarrassed. Novell's lawyers have obviously thought about their strategy quite a bit. Unless Microsoft can come up with other, stronger defenses, the statute of limitations defense looks poised to unhinge Microsoft's nondisclosure policies at an early date.

FOSS could be one of the big beneficiaries of this lawsuit by assembling and disseminating the evidence. Do other folks feel that gathering and disseminating information about Novell v. Microsoft is important? Are people ready to help? Your feedback is important.


  


The Novell v. Microsoft Case - Statute of Limitations Explained | 481 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Threads Here
Authored by: chrisbrown on Sunday, November 14 2004 @ 10:17 PM EST
nt

[ Reply to This | # ]

Darn
Authored by: lifewish on Sunday, November 14 2004 @ 10:31 PM EST
Why did such a great story have to appear at 3:30AM UK time, when I'm just about
to get to bed? Murphy's Law strikes again...

---
To err is human but, to really screw up, you need a computer.

[ Reply to This | # ]

You're Hired!
Authored by: chrisbrown on Sunday, November 14 2004 @ 10:37 PM EST
PJ,

I heartily recommend you follow this case.

You're right though about your available time. I don't think *any* of us have
figured out where you get the time to do what you already are with the SCO
cases. But I'd have to say Groklaw is where I'd expect to find the best
coverage of of legal cases involving FOSS, Software Patents, Microsoft, and of
course, SCO.

I encourage you to "hire" someone to provide the articles and
coverage for this, and other, cases.

[ Reply to This | # ]

Official Scoundrel Thread
Authored by: Anonymous on Sunday, November 14 2004 @ 10:39 PM EST
OK you whiners, her's the place to lay down your input. Please ID yourself. All
other please refrain from posting directly under this parent. Wait until the
chickens come home to roost.

[ Reply to This | # ]

Official "The SCO Group" Positions - Thirty days without an official post
Authored by: AllParadox on Sunday, November 14 2004 @ 10:40 PM EST
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

If you want to comment on this thread, please post under "O/T"

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Too good to be true
Authored by: Anonymous on Sunday, November 14 2004 @ 10:54 PM EST
All Microsoft neeed to do is settle and part of the settlement caused the
evidence to be destroyed. A few billion dollars is worth it to remove
evidence.
Is there any way to keep this evidence in the public domain?
Willie

[ Reply to This | # ]

The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: BBoz on Sunday, November 14 2004 @ 10:58 PM EST
I am definately interested in hearing more...

*heads off to read the 68 pages*

[ Reply to This | # ]

WordPerfect attacks may be continuing
Authored by: Anonymous on Sunday, November 14 2004 @ 11:18 PM EST
I'm not sure if it would help Novell, but I have noticed what may be ongoing
attacks against WordPerfect even since Corel became its owner.

I am a
WordPerfect user since version 4.0, and I currently run version 10. When I first
began using version 10, it worked fine with my printer. I would keep my copy of
Windows up to date using Microsoft's update site, and at some point my printer
began to screw up: print files sent from WordPerfect would often not get to the
printer. I eventually found an update from Corel and the problem went away.

If
Corel is aware of a problem with Microsoft deliberately breaking their print
function, they might help Novell's cause by volunteering that information. I
understand that Corel is barred from pursuing its own case against Microsoft
because MS's bailout of their company a couple years back forbade further legal
action.

This sort of information could help Novell's case.

billwww (formerly
addicted to checking in)

[ Reply to This | # ]

The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: AllParadox on Sunday, November 14 2004 @ 11:24 PM EST
Marbux:

From our private emails, you already know how much I respect you and your work.

Thank you for a very nice presentation. I found it very informative and well
done.

I have a personal bias against Microsoft. I have always disliked mean-spirited
bullies, and planned dishonesty infuriates me. (Sun won a trial against
Microsoft for trying to "pollute" Java, something that Microsoft
promised in writing that it would not do, but intentionally planned from the
beginning.)

I would like to support your suggestion. What, exactly, are you suggesting?
The basic problem that I see is that Microsoft's internal emails and
communications are usually released under confidentiality or sealed document
rules.

How do you suggest that these documents be extracted into the public domain?

Another wrinkle I have been considering is an Open Microsoft prosecution
database. Not Open Source, just Open: free, and in the public domain. Once the
public owns it, nobody can suppress it.

Trial lawyers on very large lawsuits build litigation databases. It allows
attorneys and paralegals to cross-reference documents and concepts and people.
It allows them to rapidly pull together related material for depositions.

For us to do this would require an appropriate database engine, abstracters,
abstractors, and a system of people for input. There would be some legal risks:
legitimate conclusions about culpability might be actionable.

Emphatically, this would not be any kind of "wikki". Anonymous
posting would be strictly forbidden within the database.

The "engine" is a difficult matter. This would not be a typical
database like Oracle or DB2. I very much like the power of SQL, but it seems to
me that something different is required, though I know not what. What tickles
the back of my mind is something much like Lexis or Westlaw: for every document,
a broad set of abstracted information: date of creation, author, author's
relationships at the time, recipients, main topic, main legal/factual points,
plus a full text search system including sentence specific relationships
(original typos would need to be marked and the correct term substituted so that
the engine would work correctly)

Whatever.

Lead on, MacDuff.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

But is it blackmail?
Authored by: Anonymous on Sunday, November 14 2004 @ 11:32 PM EST
It seems Novell has advertised an "index" of every misdeed they think they may be evidenciarly demonstrate, and a means to assure that if the case goes very much further, all will be relevealed for the public early on. This makes me wonder, why they reveal so much of their hand so early on? My question is whether Novell has the stomach for the long and protracted legal campaign that would surely follow, or rather if it's a ploy to get a few billion more in settlement money to go away and make their files dissapear from public view. Kind of like the guy who says "I have these pictures of you with a prostitute, would be a shame if the wife should see them". That is to say I am a bit of a skeptic about Novell's actual motives and intent, but surely this will be a very interesting story to follow whatever the case may be.

[ Reply to This | # ]

Vote Here
Authored by: chotchki on Sunday, November 14 2004 @ 11:33 PM EST
Okay everyone, lets make this a semi-formal poll for or against this. Just a
simple yes or no will do.

Mine is "Yes"

[ Reply to This | # ]

Statute of Limitations in Australia
Authored by: Anonymous on Sunday, November 14 2004 @ 11:34 PM EST

An interesting comparison can be made between the US and Australian treatment of
limitations statutes.

It is usually the case in Australia that courts courts have the (residual)
discretion to address and grant extensions, but the onus is on the plaintiff to
show that it would be an injustice not to grant the extension. Although there is
no need to use equitable doctrines to show the injustice, equitable doctrines
are usually there to ensure that the interests of justice are met, and it
definitely helps if you can refer to one (eg unclean hands, unconsionability,
etc)

Further, it is the law in Australia that the statute of limitations doesn't bar
the the claim itself, just the ability of the matter to be litigated in court.
(eg, if you have a debt that is barred from recovery by the statute, you can
still take payment from that person that is ostensibly to be used for the
payment of a later debt, and apply it to the statute barred debt instead of the
more recent debt)


[ Reply to This | # ]

Yes, yes, yes
Authored by: gray_eminence on Sunday, November 14 2004 @ 11:35 PM EST
I've been really hoping some of the great minds contributing legal analysis
would dissect this new case.

Even if Microsoft is proved to be within its rights, and Novell loses the case,
it would provide great insight to those of us involved in the FOSS industry. I
don't see this as a "lets band together to attack Microsoft", although
it will be for some. There is a lot at stake, and the ordinary people can learn
quite a bit.

Like the SCO case, it's not the merrit of the case that creates a great
opportunity, it's the exercise.

Regardless of our perceptions, we all have a lot to learn about Microsoft; even
learning about Novell is important as they continue to become a larger and
larger player in FOSS.

And lets face it, I'd hate to see the legal departments of either side get lazy,
depend on trade press for news, or worse.

If I had an ounce of legal background, besides what I've learned at Groklaw, I'd
offer it; since I don't, I'll just hope this does get the full and fair Groklaw
treatment.

[ Reply to This | # ]

To be honest...
Authored by: Anonymous on Monday, November 15 2004 @ 12:00 AM EST
I didn't read the 68 pages. But this post will sure make me. From the post
and recollections of news blurbs over the years and this write-up, I'd have
to guess the Novell v Microsoft case could very well become a defining case
in more than one way. Few companies have had the access as Novell to all
kinds of parties. Perhaps Novell even had more than IBM because IBM used
to be big and bad; --and then they realized those tactics were completely
counter-productive, wrong, and did a 180 on their tune.

Well to the 68 pages!

[ Reply to This | # ]

Corrections here, please -- n/t
Authored by: marbux on Monday, November 15 2004 @ 12:33 AM EST
.

---
Retired lawyer -- Free at last! I've got my freedom of speech back! marbux paw
AT whiskers comcast teeth net (remove the animal parts).

[ Reply to This | # ]

A few questions.
Authored by: rsteinmetz70112 on Monday, November 15 2004 @ 01:26 AM EST
I have a few questions concerning the application "statue of
limitations"

1) In my understanding "statute of limitations" is limited to criminal
acts and that torts are governed under "proscription." Is this my
misunderstanding or a local (Louisiana) issue?

2) What is the application of the "doctrine of frauds" which as I
understand it in civil cases governs misrepresentations and omissions. Clearly
Microsoft has misrepresented its efforts to undermine competing applications.

3) It has been my understanding that the proscription period began with the
discovery of the cause of action, not with the initial act. I was once involved
in a suit by US government where an alleged defect was not discovered for nearly
than 20 years.

I am not a lawyer.

I have discerned that the the law generally follows a logical construction of
the facts.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: lth on Monday, November 15 2004 @ 01:35 AM EST
I am a long time reader, but seldom poster at Groklaw. I believe that what has
been exposed in the SCO cases has made an impact. I think that the same could be
done with this case. Maybe not to the extent of PJ commenting as often as she
does, but if we at least had the court documents that we could read for
ourselves and have them in a database for future use. I say go for it. The SCO
case will not last forever!

[ Reply to This | # ]

Wanna bet MS will ask that everything be sealed?
Authored by: Anonymous on Monday, November 15 2004 @ 01:37 AM EST
I'm betting Microsoft will try its hardest to make sure that any embarrassing
material is sealed for as long as possible.

Sigh.

[ Reply to This | # ]

Consult any Linux 'WINE' developers...
Authored by: Night Flyer on Monday, November 15 2004 @ 01:40 AM EST
According to the above article: "The [Novell] complaint contains a
multitude of allegations describing systematic and specific efforts by Microsoft
to impede third-party developers, to destroy standards, to curtail
interoperability, to provide its own application developers advanced access to
Windows application programming interfaces (APIs) and undocumented system API
calls made available only to Microsoft's own developers."

I believe that one of the difficulties that the WINE developers had in trying to
make an interface that would run Microsoft Windows programs on Linux is
described quite well in this statement.

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Bill Gate's personal investment company?
Authored by: Anonymous on Monday, November 15 2004 @ 01:41 AM EST
Hi,

Has anyone here heard of Cascade Investments? I read about them in MIT's
Technology Review. They don't have to report anything as a private company, but
you can read about them here:
http://answers.google.com/answers/threadview?id=15442

I think you guys might find it interesting.

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It's not an opportunity - it's a responsibility
Authored by: Reven on Monday, November 15 2004 @ 01:48 AM EST
First of all, let me admit I've contributed nothing to this site so far. That said, I see this opportunity knocking to follow this Microsoft case and I see Groklaw in a whole new light -- whether this is vision or delusion, I'll let you decide.

The bad guys... Microsoft. Microsoft is the true-bred capitalistic entity. We need to remember one thing... they exist for one purpose, and one purpose only. To make money for their shareholders. That is the only reason Microsoft exists. They are doing nothing that the "market" (that faceless, reportedly all controlling mass-conciousness that economists talk about to the point of deifying sometimes) hasn't encouraged them to do. Anti-trust laws are a social bandaid to correct the injustices that would otherwise result from what simply is the fundamental premise of capitalism -- that greed will regulate the market.

The FOSS community is much more than a group of people writing software. It's more than a license, and more than an operating system. It's almost a social system -- certainly it borders on being a new economic system. A hybrid socioeconomic system, similar to participatory economics where greed isn't the driving factor.

So you have on one hand, Microsoft, the ultimate child of capitalism. On the other, FOSS -- a movement bigger than any of us dreamed it would be twenty years ago. Of course Microsoft is scared to death of FOSS. FOSS is Microsoft's anathaema. Microsoft survives behind closed doors, in secret meetings, in under the table (not to mention underhanded) agreements. Microsoft is DRM, it's proprietary, closed, patented, keep-your-filthy-open-source-mits-out-of-my-arena. Microsft will fight it with everything it has. Which I'll go out on a limb and say is something we haven't even begun to see yet.

Any case where Microsoft is being challenged on the capitalistic rules of conduct is of immense interest to FOSS. If (capital-'C') Capitalism is by its own rules looking at litigating Microsoft, whatever it uses to do so is amour and armament that FOSS will need at some point.

Now I'm not a comunist or a socialist -- even though I live in Canada. But I do think we're seeing something emerge from the FOSS movement that is bigger than we expected -- bigger than we might be even willing to admit, even sitting here looking at it. I think we're seeing the beginning of a system where it's not greed that determines success, but actual merit. Where patents are a thing of the past, where copyright is used to secure the rights of the public. FOSS has the potential in a technological age to shape the world into something more open.

I think it's our responsibility to follow the Microsoft case, and do all we can to help.

For what it's worth, I'll volunteer my services.

---
Ex Turbo Modestum

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: moosie on Monday, November 15 2004 @ 02:15 AM EST
I'm in. Whee do I sign up.

- Moosie.

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 03:15 AM EST
> Do other folks feel that gathering and disseminating
> information about Novell v. Microsoft is important?

Yes - *very* important.

Micro$oft has a history of fighting hard and dirty.

"Knowledge is power."

KUTGW, PJ.


Regards,

David

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: codswallop on Monday, November 15 2004 @ 03:55 AM EST
I know it'a asking a lot, given how time consuming this is going to be, but
would you consider looking into the Burst case, too? It has many of the same
issues, plus what appears to be wholesale systematic failure to preserve
documents, along with false reporting of principals (misreporting who was
involved in a given negotiation so that his documents would be automatically
destroyed by retention policies explicit and covert). It's pretty raw. it's
certainly important for any database of Microsoft misbehavior.

Would it be possible to reopen settled cases if it could be proved Microsoft
failed to produce incriminating documents? If not, what would be the remedy?

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

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Evidence of intent
Authored by: stan ackroyd on Monday, November 15 2004 @ 04:11 AM EST
Anyone remember the easter egg in Word 2, where a little green Word Perfect monster popped up in the "About" dialog and got the stuffing knocked out of it by the Word logo?

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: etmax on Monday, November 15 2004 @ 04:23 AM EST
I agree.

Let's do something, even if it's only be a repository.

Even just having the PDF's with a few comments to help us non-law people
understand the depths of the depravity.

---
Max - Melbourne Australia

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A necessary exercise.
Authored by: Franki on Monday, November 15 2004 @ 04:27 AM EST
We know that Microsoft has called Linux a cancer, said it was un-american and
all matter of other names to disparage the unknowing. So there is no question
that they hate linux and wish to fight it tooth and nail. They have said as much
publically. The ways they will fight are via patents, copyright, distribution
blockage and anything else they can think of.

OSS doesn't have a patent portfolio at this stage with which to negotiate
peace, so we need another battering ram.

I think collecting all of the MS anti-competitive info in one easily searchable
extensive online presence is our best course of action at this point, and I
think that anti-competitive behaviour defense will be very important for Linux
and OSS.

I also think this should be crosslinked with the halloween docs as well, as the
intent shown in those docs is in line with what we would be trying to document.

This fight might start in the US, but its implications are world wide.. we just
have to hope that MS's attempts to influence polititions worldwide won't result
in laws changing to suit them.

I also think that the content should be mirrored.. lest a court order be able
to take a US mirror down.

Rgds

Franki

---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 06:06 AM EST
I also recommend Pete Petersons book. I should also like to point out that his
account of what happened on OS/2 v Windows in 1989 looks fairly close to what
actually happened (although the timing and detail was slightly different - from
direct personal knowledge).

I should also say it is more accurate about the 1989-1993 period than the
implied story told in the Novell claims.

For instance Novell paragraph 97 (referring to the Windows 64K limit for the
USER heap used for UI resources, including dialogs). I personally wrote some
software to get around this in 1990-1 (as did many others) as an ISV. This was
not hard and Petes comments about the state of Windows development in WP Corp.
are relevant here. For Novell to suggest that this was still an issue after they
had bought WP is plain misrepresentation of the technical knowhow at that time
(stuff was even in bookstores by then). Comments have been made here about
incompetence rather than malice often being the true explanation so we ought to
excuse the Novell lawyers for not fully grasping their subject and await the
corrections. I would be highly surprised if claims such as 97 cannot be struck
at an early stage of the procedings as errors in fact.

One interesting feature of the Novell claims (as compared with IBM-SCO for
example) is that a number of the paragraphs are fairly straightforward to decide
at a technical level - on expert evidence. There are thousands of software
developers like myself who were around at that time - many will still have
copies of documentation and software from the era so no shortage of evidence
(although I now regret clearing out a filing cabinet drawers worth of paper last
year!).

The OEM and distribution claims may be more promising.

I hope this is NOT subject to early settlement or dismissed because of the
limitation question. I would like to see the history of some of these topics out
in the open. There are many errors of fact in the Novell claim which should be
fun to see play out whether or not the overall proposition is valid - I suspect
this is why a normally ready-to-settle Microsoft has gone for litigating a case
it may actually win.

The case should also help clarify the role of the courts in such matters and the
responsibilities of dominant players in the industry. For example some claims
relate to Apples OpenDoc software. Created as a competitor to Microsofts OLE;
interesting why it failed to gain support when opened up to multi-platform as
Novell got involved. May be instructive to FOSS.

I think Groklaw could be of great service in assembling evidence and feedback. I
hope that the fact that there is less of a clear villain of the piece at this
stage than was true with IBM-SCO does not detract from such a worthwhile
activity.

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A Worrisome Thought
Authored by: micheal on Monday, November 15 2004 @ 07:04 AM EST
I hope that Novell does not use this case to obtain an unfair advantage over
other FOSS companies. As an example - MS-Novell could settle with a stipulation
that MS would not sue Novell or Novel customers (someone who has paid Novell for
a Novell product) for patent violations. I would hope that Novell commits to
giving full consideration to the entire FOSS community, especially if Novell
makes use of research from groups like Groklaw and individuals like Bruce
Perens.

(As an aside - my example is only that and can, perhaps, be attacked on the
basis of conflicting with the GPL license.)

---
LeRoy -
What a wonderful day.

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 09:15 AM EST
I remember buying new PC's from Gateway and telling the sales person we wanted
WordPerfect and not Microsoft Office on the PC. The saleman said that
Microsofts's contract with Gateway was $120 for Windows 98 and Microsoft Office.
If we wanted only Win 98 the cost for Win 98 would be $220. He said that was
the way Microsoft sold their package. I had the actual $ numbers and
saleperson's name somewhere in my notes. Maybe I can find them.

k

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How is there continuing harm to Novel??
Authored by: Anonymous on Monday, November 15 2004 @ 09:56 AM EST
While I read the analysis on why the statue of limitations defence should not be applicable when one is undergoing continual harm, how does Novell claim this since they no longer owns the products in question and haven't for a long time? It would seem to me much more logical for Corel to be in a position to make such a claim today rather than Novell.

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PJ: Very important to cover this
Authored by: nb on Monday, November 15 2004 @ 10:10 AM EST
Many thanks for this brilliant article. I agree that it's very important to
cover the MS-Novell lawsuit fully. If because of important reasons (such as
PJ's time being limited) it's not possible to fully cover all of the SCO
lawsuits as well as this one, I think that covering this lawsuit is much more
important than further detailed information about SCO's various delay tactics.
It is of crucial importance for the Free Software and Open Source movements to
have a good understanding of anti-trust law, specifically in relation to the
tactics and strategies of Microsoft Corporation.

In addition to the arguments presented by marbux, here's another reason why it's
important to cover this lawsuit: I'm curious whether Microsoft will make
counterclaims about alleged Novell misconduct, similar to how IBM used their
patent portfolio to counterattack SCO. If MS makes such counterclaims against
Free Software used or developed by Novell, that'll be a much more serious attack
than anything SCO has ever done. If on the other hand Microsoft chooses not to
assert such counterclaims, I'd like to learn as much as I can about the reasons
why Microsoft chooses not to do so.

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Links to worldwide anti-trust agencies
Authored by: marbux on Monday, November 15 2004 @ 10:19 AM EST
The U.S. Department of Justice maintains a web page providing links to numerous anti-trust agencies worldwide ranging from those of national governments to treaty organizations.

Those inclined may want to check out those site for agencies having jurisdiction over anti-trust issues in their own countries. It would be interesting to learn whether there are anti-trust actions against Microsoft underway that we haven't heard about yet.

Links to such information should be posted in this thread for now. We can always worry about translations later.

---
Retired lawyer -- Free at last! I've got my freedom of speech back! marbux paw AT whiskers comcast teeth net (remove the animal parts).

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OpenDoc
Authored by: qu1j0t3 on Monday, November 15 2004 @ 10:43 AM EST
Apple's OpenDoc (1993-14 March 1997, R.I.P.) was great technology, but I don't think it was ever open source.

Amy Wohl's 1993 discussion of the announcement is remarkably prescient:

WordPerfect has announced an architecture for compound documents, based on the Apple Amber technology (formerly known by such code names as Jedi and Exemplar). They are joined in this project by Apple, as well as by Novell, IBM, and Borland ...

You can think of OpenDoc as both an extension and an alternative to Microsoft's OLE (object linking and embedding) tool. Carl May of Apple points out that the focus of OpenDoc is on cross-platform interoperability beyond Macintosh and Windows ...

OpenDoc is part of a much larger movement ... attempting to find new strategies that will permit them to compete against the ever-enlarging, very successful Microsoft. Many of these strategies are aimed, like OpenDoc, at preventing Microsoft from gaining total control of an as-yet-unoccupied territory, merely by claiming it is an extension of the existing Microsoft Empire.

It is too soon to know whether OpenDoc will succeed. Such standards -- and wide support for them -- is a good idea, leading to flexibility and interoperability. But in the computer industry, commitment is only a necessary condition and not a sufficient one. What counts is whether software ships -- and in what quantity. If OpenDoc attracts many developers to its banner and they use it to differentiate their products, things will turn out differently than Microsoft intended, with the marketplace less focused on Microsoft's products and strategies and control more dispersed.

[ Reply to This | # ]

  • OpenDoc was cool - Authored by: Anonymous on Monday, November 15 2004 @ 10:56 AM EST
Intellectual Ventures?
Authored by: Anonymous on Monday, November 15 2004 @ 10:43 AM EST
But I got an email from Groklaw reader marbux, who, as most of you know, is an attorney, now retired, and he expressed an interest in covering the case in depth. He believes that the evidence that will be unearthed is going to be useful in the future, should Microsoft actually attack Linux with some trumped up patent infringement lawsuit, whether directly or through a proxy. Like maybe this one?

Reads more like "Intellectual Vultures" to me. It is really sad to read about this. It reminds me of those neighbourhood protection rackets where you pay "insurance" to make sure that the cartel look after you and you "don't get hurt". Something is very wrong :(

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The case of the fallen liver
Authored by: Anonymous on Monday, November 15 2004 @ 11:05 AM EST
Lets ask this question differently. What if the guy picks up his liver, goes to the doctor, gets it replaced. In the meantime, understanding the harm of the environment he lives in, he also sells his home and moves elsewhere. Years later he files a lawsuit. Clearly over the intervening years, he has not suffered any continuing damage. The new owners of his old house are now somehow friends with the people that run the evil chemical plant, and are uninterested in the case. If he doesn't own the home, hasn't been living there, and hasn't been suffering any further damage as a result, nor chose to seek any legal remedy prior, and if he is now somewhat late for the statue of limitations, would the judge really rule that they don't apply?

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 11:28 AM EST
"You need only file your lawsuit within two years of the day you first saw
your liver lying on your driveway."

Maybe its just me, but I would pick up my liver and wash it off BEFORE I filed
the lawsuit. After all, someone could easily driver over it, the cat or dog
might eat it or some other accident could befall it while it lies on the cold,
hard concrete of my driveway.

Then there is the risk of malevolent neighbors such as the likes of Hannibal
Lecter or Jeffrey Dahmer. I just bet they would covet an unclaimed liver just
lying about on the ground near the street.

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The Novell v. Microsoft Case - Is an MS win bad or good?
Authored by: Anonymous on Monday, November 15 2004 @ 11:32 AM EST
I have to ask, if MS wins their case and gets the action dropped because of
statute of limitations, does that mean that FOSS developers can use the same
argument WRT any software which has been in use for more than four years?

Yes, I know it's not the same law.

[ Reply to This | # ]

PJ, it is time to
Authored by: Anonymous on Monday, November 15 2004 @ 11:45 AM EST
Appoint case maintainers - just like the linux kernel subsystem maintainers.

We appreciate the work you've done, but if you're feeling stretched too thin,
there's nothing wrong in admitting Groklaw is a success and has grown beyond
your capability. I for one would love to be able to take a step back and see
other people continue my work. Groklaw is a wonderful legacy.

I don't mean that you should quit entirely, but develop trusting relationships
enough that other people can post and maintain whole subjects for you, leaving
you to maintina whatever you want - the SCO case for example.

[ Reply to This | # ]

The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 11:55 AM EST
Its about time Microsoft was taken to task over their actions against Novell and
Word Perfect. I hope that while we're on the subject of Word Perfect, we
continue to follow the trail over to Corel. Corel's involvement with Linux and
Microsoft's later "investment" in Corel have a "stink" about
it that very much smells of anti-trust and illegal activities.

[ Reply to This | # ]

Any info on Judge Stewart?
Authored by: overshoot on Monday, November 15 2004 @ 12:36 PM EST
It would have been beyond lucky to get Judge Kimball a third time, although from
what we've seen so far he wouldn't be Microsoft's choice if they had a say.

That said, what do we know about Judge Stewart?

[ Reply to This | # ]

Congratulations PJ!
Authored by: Anonymous on Monday, November 15 2004 @ 01:01 PM EST
To a well deserved first place in the TechWeb blog contest!
http://www.techweb.com/bl ogawards/winners.html

Just don't spend all the 500$ in coffee at once!

:-)

A Swedish Lurker @ work.

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Monday, November 15 2004 @ 01:02 PM EST
yes follow tyhis case, I think we need to start to build as big a arsenal for
use against M$ as possible. this information should not just be stored on
Groklaw but should be mirrored and distributed to as many partys for archival as
possible. The more independant hands that the evidence is in, the harder it
will be for that evidence to be swept under the rug.

[ Reply to This | # ]

Almost off topic re:BSF
Authored by: Anonymous on Monday, November 15 2004 @ 01:42 PM EST
American express suing visa/mastercard.

American Express said in disclosing its suit that David Boies, a founding
partner of Boies, Schiller & Flexner would handle the litigation.

(yahoo news)

[ Reply to This | # ]

Direct relation to SCOX vs Novell, Indirectly.
Authored by: cruss on Monday, November 15 2004 @ 02:16 PM EST
If it is decided that Novell not SCO owns the copyrights to the code in question
in their case then what does that mean for the "License" that MS
bought from SCO. I would think that they would need to buy a license from the
actually owner of the copyrights, Novell. I'm sure that they would just love to
sell them one. I'm also sure that they wouldn't send some cease and desist
orders to MS to stop what ever actions that caused them to need a license in the
first place. Some how I just don't think that MS bought a license from SCO
because of all the Linux they run.

---
--
security is directly proportional to inconvenience
cruss at hcity net

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A place to start?
Authored by: TomWiles on Monday, November 15 2004 @ 02:38 PM EST
If my memory servers me correctly there was a court case, or at least a threat
of a court case shortly after Win-95 was released.

The story was that many companies (including WordPerfect) paid Microsoft for the
Win-95 API prior to the release of Win-95 in the fall of 95. When Win-95 was
released, many of the programs (applications) failed because the API had been
changed by Microsoft without informing these companies.

I remember (if you can trust my memory) that Microsoft's response to the inquiry
of a Government Agency (Justice Department??) that Microsoft had not given out
the updated API calls because the documentation was not finished and checked.
Microsoft said that they wanted to guarantee that the documentation was correct.
As I remember Microsoft did not deliver the full API documentation to these
companies until sometime after January of 96. This had the effect of giving
Microsoft's applications a substantial (up to one year) competative edge over
their competators.

If we have anyone with a clear knowledge of this incident, plus possibly news
reports or other ducumentation it might be useful to document this incident for
the future.

Where I was interested in this at the time (I was a WordPerfect user and thus I
had a personal stake in this), anything I archived or retained at the time has
long since been distroyed. I have checked and I have found nothing. A google
search by me came up empty, although I may not be that good at finding old
documentation on the Net.

Tom

[ Reply to This | # ]

What a waste of resources; shareholders should be upset
Authored by: Gonadacles on Monday, November 15 2004 @ 03:33 PM EST

Novell is wasting critical resources on a fight that was already lost back when Novell purchased WordPerfect in 1994 and there's nothing that can be done now to make them whole (with respect to word processors anyway).

There is evidence that WP's loss of the word processor market was related to quality and not anti-trust issues:

Analysis of Word Processor Market

From personal experience I recall that WP's initial offering on Windows was pretty poor compared to it's overwhelmingly (not with me; I was a WordStar fan-boy) popular DOS version of WP. I know anecdotally that a lot of people stuck to the DOS version because they thought the Win version (not to mention being 2 years late) was awful by comparison. So the battle Novell lost was the failure to convince their own user base that they had a better Windows product than Microsoft. They had the lock-in; they had the user loyalty. WordPerfect (the program and the corporation) just didn't deliver.

Novell's going to have a hard time arguing that in 1994 (when they made the acquisition) that the market handn't already been won by Microsoft. WordPerfect's market share had already dropped to less than 10% after four years of steady declines. Novell should have known they were buying a turkey. According to this site, it was already well known in WordPerfect that they'd made a significant error in blowing off Windows 3.0:

In May Microsoft shipped Windows 3.0, and our worst fears became a reality. Just at the time we were decisively winning in the DOS word processing market, the personal computing world wanted Windows, bugs and all. To make matters worse, Microsoft Word for Windows was already on dealer shelves and had received good reviews. That little cloud on the horizon, which had looked so harmless in 1986, was all around us, looking ominous and threatening.
-- Almost Perfect by W. E. Pete Peterson

According to the same site WordPerfect's financial picture prior to acquisition was also dim. Expenses were overtaking sales, which is never a good sign.

Novell's position is further undermined by the fact that, unlike the operating system which most consumers get for "free," office suites are typically an add-on purchase. People could have selected a competing office suite, but they didn't.

Finally, Microsoft's position that Novell hasn't had an interest in WordPerfect in eight years is at least interesting. How does a company that isn't the current owner of the product and should have known they were buying a lame duck when they were the owners have standing to bring anti-trust issues now even with any extra time granted to them by the U.S. anti-trust trial?

Novell needs to be focusing on the future and not wasting time and money pursuing a Pyrrhic victory over Microsoft.

[ Reply to This | # ]

Lautreamont on plagiarism & progress
Authored by: Anonymous on Monday, November 15 2004 @ 03:55 PM EST
"Plagiarism is necessary. Progress implies it. It closely grasps an
author's sentence, uses his expressions, deletes a false idea, replaces it with
a right one." (Comte de Lautrťamont)

That was written by the franco-uruguayan poet Isidore Ducasse in 1869.
http://en.wikipedia.org/wiki/Lautreamont

He probably used the word "plagiarism" looking for a thought provoking
effect, not actually thinking of pursuing any illegal activities, but detaching
the activity of the creative process from all the boundaries that it could be
unbound.

That can be seen in his later work "Poesies" where he paraphrases a
number of philosophers, thinkers and writers that were considered sacred in the
times he lived.

His words ring so true, and we still haven't figured how to make new ideas and
information to be free for everyone to use it, even when we want to, and we need
to.

--- vruz (not logged on)
horacio.lopez (at) gmail [dot] com

[ Reply to This | # ]

Where does this leave Corel?
Authored by: Jonathan Bryce on Monday, November 15 2004 @ 03:55 PM EST
Could Corel also sue MS for the harm suffered due to loss of market share on
WordPerfect?

[ Reply to This | # ]

Groklaw II
Authored by: Anonymous on Monday, November 15 2004 @ 04:29 PM EST
Maybe this case should be followed on another site so as not to creat too
confused a jumble of info. Just a thought.

[ Reply to This | # ]

The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: eric76 on Monday, November 15 2004 @ 06:42 PM EST
After reading Novell's complaint, I wonder who in their right mind would sign a
Microsoft license agreement (such as for Sender ID).

[ Reply to This | # ]

Microsofts legal status as a monopoly?
Authored by: mrcreosote on Monday, November 15 2004 @ 07:10 PM EST
At what point did Microsoft legally become a monopoly? Was it when they were
found guilty in the DOJ vs MS trial? Does that get back dated to the time the
offenses occurred? Was it from the time of the first 'consent decree' on their
OEM contracts for Win95?

What I am getting at is does the fact that Microsoft is now a declared monopoly
have any bearing on their alleged activities wrt the Novell action? Can Novell
say that because Microsoft were in fact a monopoly in the O/S market, as
adjudicated in DOJ vs MS, that their actions in this case should held to those
more stringent standards?


---
----------
mrcreosote

[ Reply to This | # ]

Novell should buy back WP and massage it for *nix
Authored by: Anonymous on Monday, November 15 2004 @ 08:09 PM EST
Because, as I have been saying for years exactly what is in the case document.
WordPerfect was the best, and was only constrained by the anti-competitive
antics of M$.

With Linux, Novell would have carte blance' to do as they want, make it the
killer app again, and (egad, perchance) open source it?

What a happy day.

I have hated Word ever since the first time I was -forced- to use it, because it
came pre-installed on a company computer. Now, I sneak in WP and install it,
then just make all my docs PDF files. No one is the wiser.

[ Reply to This | # ]

Connections
Authored by: Anonymous on Monday, November 15 2004 @ 11:02 PM EST
Quiz questions of the day:

Who was corporate counsel of WordPerfect in 1994 ?

Who was CFO of WP in 1994 ?


Quatermass
IANAL IMHO etc

[ Reply to This | # ]

Damages, MS payouts and Market strategy: How Large are the damages?
Authored by: jdg on Monday, November 15 2004 @ 11:34 PM EST
There is a comment in Mettler's Lamlaw.com article (I do not think he will mind
the use of a paragraph but please read is whole article!) that made me think
about the monetary damages in this case. It seems possible that this situation
has the potential to be different even if Novell is "just" pushing for
a monetary settlement.

"Interestingly enough the kinds of injunctive relief sought in the DOJ
case and perhaps still in the RealNetworks and Burst cases would be of little
interest to Novell today. And that is why their prayer for relief is just about
the money, damages caused subject to tripling. But then Microsoft Corporation
thinks illegal activity is okay by them as long as they can pay the cash. That
is the same mindset as organized crime."

My speculation is that in this case the monetary damages might be particularly
large. As marbux so carefully points out, the "continuing" nature of
the conduct and of the results implies that the damages have been going on for a
long time and may amount to a very hefty sum. On top of this, these damages
could be trebled. If we start talking about hundreds of millions per year, for
the past 10 years (with interest) and damages for lost markets into the future,
tripling this very large sum might amount to MANY billions of dollars. (And
damages are often taken as lost revenues, not lost profits.)

Thus, even though it might "just" be another MS payoff, it may be that
"a big enough difference in degree is a difference in kind." That is,
this may NOT just be business as usual for MS.

Extra Credit Question: As a kicker, if knocking off WP also helped them
maintain the Windows monopoly and sour the NetWare business, are there
additional damages there? Given all of this, might MS be forced to fork over
some concessions on behavior, or, alternatively, will the loss of this case make
it easier for others both to resist MS's attacks and to persue additional
anti-trust-based cases?

As a note, IANAL (but I am an economist).


---
SCO is trying to appropriate the "commons"; don't let them [IANAL]

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Can anyone say "Class Action"
Authored by: Anonymous on Tuesday, November 16 2004 @ 02:02 AM EST
I'm wondering if a class action lawsuit would be justified if Novell wins this
case.

Presumably you could sue for the damages for amounts in excess of what a person
'should have' paid. As well as amounts paid for product not received, e.g. the
per-processor fees MS charged for Word as stated in the Novell filing?

Lawyers, ex or otherwise, what say you?

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Preventing disinformation from becoming Information
Authored by: davidf on Tuesday, November 16 2004 @ 04:23 AM EST
Do other folks feel that gathering and disseminating information about Novell v. Microsoft is important?
In a word, YES!

Much of the history of the Information Tehcnology era is being systematicaly re-written by people like M$ who with to have a user base ignorant of anything except the media hype they spin. If the facts are not clearly spelled out and documents preserved, all that will be left is the disinformation.

How many people remember the copyright infringement by Micro$oft against Apple over the QuickTime source code? I believe the case was moot because Microsoft was caught red handed. Everything was tied up in a neat bundle in an agreement that rolled all of Apple's Intelectual Property complaints against Microsoft into one.

The mainstream press remember that Microsoft "invested" $250 million dollars in Apple at a time when Apple was in finacial difficulty and don't say why they (M$) had to. Likley much of it is now bound by non-disclosure aggreements. I'd hate for this to happen with the mountains of documentation that will result from this case.

This should be a place where the open source community and other like-minded people can collect relevant information for future genterations. Not only that, but it is extremely entertaining reading!

DF

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  • Very good point - Authored by: Anonymous on Tuesday, November 16 2004 @ 08:38 AM EST
OT: Bill Gates speaks about?
Authored by: Brian S. on Tuesday, November 16 2004 @ 06:58 AM EST
"SOFTWARE MAN Bill Gates of Microsoft has had one of his attacks of the vision thing again, this time to an audience quietly listening to a speech he made in Copenhagen this morning."

"MAD, MOM, WUS and WSS. Heaven preserve us all"

The Inq.

For a horses mouth version.

"Evaluate Microsoft Windows Update Services Now"

"Be one of the first to download an evaluation copy of Windows Update Services."

"Read the Step-by-Step Guide"

"Learn how to install WUS to Microsoft Windows Server 2003 operating systems, configure WUS to obtain updates, configure clients to install updates from WUS, and approve, test, and distribute updates."

Microsoft WUS

Brian S.

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DLL Hell
Authored by: Anonymous on Tuesday, November 16 2004 @ 07:54 AM EST
Novell complaint paras 107-109 discuss what has become known as "DLL Hell". DLLs in Windows are shared run-time libraries, first introduced to Windows in 1984 to enable software modularisation and reduce memory overheads (this was the time of the 640K limit so every byte was at a premium). They are still used today, although potential for conflict has been much reduced.

Novell notes the problem that as DLLs were upgraded between one version of Windows to the next, documentation was not necessarily upgraded at the same time (107). Actually it was worse than this. For instance an update to OLE would update those DLLs without it being a 'Windows update'. DLLs could be redistributed by ISVs, not necessarily Microsoft. Many DLLs were third party, not originated by Microsoft at all. Thus the problem was not limited to Windows releases.

In 109, Novell claims that this could have been avoided if Microsoft documented version information whenever it updated a DLL They are not clear whether they just mean the version information stored in a DLL or something more.

Having had grief enough myself with "DLL Hell" as a developer (like everyone), I think it is safe to assert that this seems unlikely to be an anti-competitive act against Novell - all of us suffered.

Can anyone remember any 'silent updates' where Microsoft failed to update the version number - ideally ideas on what Novell are referring to. I recall one instance with MFC 4 around 1996 or 7 which was presumably an accident as it broke Microsoft software too (if it is ever important I have more details in my files). I also have a vague feeling about finding something similar with OLE 2 in 95 or 6.

Anyone feel Novell has any mileage in these claims? If so, presumably we can all (developers) seek a share of the action!

I for one will be interested to see what evidence they have for their claim that this was a deliberate malicious act. Was there anything uncovered in the earlier anti-trust case?

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  • DLL Hell - Authored by: Ed Freesmeyer on Tuesday, November 16 2004 @ 02:00 PM EST
  • DLL Hell - Authored by: PeteS on Tuesday, November 16 2004 @ 03:47 PM EST
    • DLL Hell - Authored by: marbux on Tuesday, November 16 2004 @ 06:28 PM EST
  • DLL Hell - Authored by: Anonymous on Wednesday, November 17 2004 @ 11:14 PM EST
The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: caldoc on Tuesday, November 16 2004 @ 08:33 AM EST
I agree that this is important. I'm a second year law student and I'd like to
know how I might contribute to the effort? If someone is organizing this effort

please be in touch so that we can discuss what I might be able to help with.

Thanks,

-Aldo Castaneda

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Replace WP with Lotus, and youv'e got another good suit
Authored by: Anonymous on Tuesday, November 16 2004 @ 12:06 PM EST
I would absolutely -love it- if IBM picked up on this, and said, "hmmm,
yea. . . Lotus plugs right into that brief".

Because if you look at it, the way Novell is arguing both WP -and-
"spreadsheet" apps, one can postulate a similar position for Lotus.
Lotus 1-2-3 was -the- defacto spreadsheet application of the 80's. None better.
It was the same kind of barriers to entry that kept Lotus one step behind in
development for the Windows platform.

I'd love to see IBM join in this one too.

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MS BIO book 'Hard Drive'
Authored by: Anonymous on Wednesday, November 17 2004 @ 11:31 PM EST
Hard Drive charts Gates's missteps as well as his successes: the failure of OS/2
and the embarrassing delays in bringing Windows to the marketplace; the highly
publicized split with IBM, which then forged an alliance with Apple to battle
Microsoft; the public relations fallout over various exploits of Gates; and the
investigations by the Federal Trade Commission. Wallace and Erickson also
examine the combative, often abrasive side of Gates's personality that has
alienated many of Microsoft's rivals and even employees, and led to his being
labeled "The Silicon Bully" by Business Month Magazine. They report:

In the early 80's, Microsoft's Multiplan lost out to Lotus 1-2-3 in the
marketplace. According to one Microsoft programmer, a few of the key people
working on DOS 2.0 had a saying at the time that "DOS isn't done until
Lotus won't run." They managed to code a few hidden bugs into DOS 2.0 that
caused Lotus 1-2-3 to breakdown when it was loaded. "There were as few as
three or four people who knew this was being done," the employee said. He
felt the highly competitive Gates was the ringleader.

The first two female executives hired at Microsoft in 1985 were recruited to
meet federal affirmative action guidelines so that the company could qualify for
a lucrative Air Force contract. One source says,"They would say, 'Well,
let's hire two women because we can pay them half as much as we will have to pay
a man, and we can give them all this other crap work to do because they are
women.' That's directly out of Bill's mouth...." Gates treated one of these
executives so badly that she asked to be transferred away from him.

Microsoft managers used the company's e-mail system to secretly spy on employee
work habits. Only those employees who worked weekends could collect bonuses. In
time word got out and some employees logged into their e-mail on weekends with a
modem from home so it would appear they had come in.

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: agent on Thursday, November 18 2004 @ 02:49 AM EST
Full disclosure.

I do own some stock in Novell. My Brother in-law owns some in Micro$oft as
well.

Linux will eventually win, and we will play nice with everyone.
http://hackaday.com/entry/4733053428552506/

My agent account here.
http://www.archive.org/iathreads/post-view.php?id=21942

Come visit me in Wisconsin, and I will buy you a beer.
http://mb.citiwireless.com/

Have a lot of fun...
-Steve

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Thursday, November 18 2004 @ 07:10 AM EST
Hello marbux,

I do believe that your idea of collecting information for the idea of continuing
damages (for lack of a better phrase) is a excellent one. I am not a lawyer,
however, common sense tells me that this information can server a multitude of
purposes other than legal. I am firm in my belief that this could and will be
used in an extensive manner when it comes anti-trust suits. Who knows, this
grow into a repository of other corporate offenses.

Just my humble opinion. Please (as always) take it with a grain of salt.

Pete

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MS threats from China
Authored by: Anonymous on Thursday, November 18 2004 @ 10:07 AM EST
Microsoft warns asian governments of Linux lawsuits

http://news.xinhuanet.com/english/2004-11/18/content_2234734.htm

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The Novell v. Microsoft Case - Statute of Limitations Explained
Authored by: Anonymous on Thursday, November 18 2004 @ 10:39 AM EST
Squire was the title given to members of local county governing councils in
Tennessee up through the 1970s at least. We once had a local county councilman
named Clyde Claiborne who was pulled over for speeding. "Do you know who
I am?" he asked the deputy so he could avoid the ticket. "I'm Squire
Claiborne." It didn't work. The deputy made the ticket out to
"Squire Claiborne."

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Are we forgetting something?
Authored by: Anonymous on Thursday, November 18 2004 @ 12:14 PM EST
Perhaps we are forgetting the true meaning of ANTI-competitive.

Competition is good. Our laws encourage competition. Successful companies are
good competitors. The most successful ones are ULTRA-competitive.

At what point does ULTRA-competitive behavior cross over into the realm of
ANTI-competitive?

Actually I think it has less to do with the behavior itself and more to do with
the competitorís position in the market. Behavior which is *perfectly legal*
for normal competitors can be illegal for monopolies.

All this talk about how Novellís position was so much better way back when...

All this talk about how Micro$oftís leadership position back could not be taken
as a given...

All this talk benefits Microsoft because the behavior in question is only
objectionable if and when Microsoft has a monopoly. You just go right ahead
talking about how Novell used to be all this and that... you are framing
Micro$oft's behavior as ULTRA-competitive instead of ANTI-competitive!

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