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Comes v. MS Antitrust Trial Begins in Iowa
Tuesday, December 05 2006 @ 11:41 AM EST

The antitrust trial against Microsoft, Comes v. Microsoft Corporation, Inc., has now begun in Iowa. The first day was November 30, Thursday.

The link takes you to Friday's opening statement by the plaintiffs' attorney, Roxanne Conlin, who will be presenting 9 stories of how Microsoft has treated competitors, to show how Iowans ended up paying too much for Microsoft products:
"Microsoft didn't come into Iowa and do things directly" to raise prices, Conlin told jurors. "They acted to destroy competition" with "illegal choke holds, one on input and one on output." Those illegal activities allowed the company to charge higher prices than it could have if there had been competition, she said.

Conlin has said that expert witnesses, including a Nobel Prize-winning economist, will present evidence showing that the cost to Iowans of that loss of competition is as high as $330 million during the 12-year period covered by the lawsuit....

Conlin used a variety of computer-generated illustrations, including one that showed 15 icons, each representing what she said was an illegal action taken by Microsoft in pursuit of its bid to become and remain a monopoly. The icons had titles like "exclusionary contract," "technical sabotage," "buying out the competition," "espionage," and "deception and misinformation."

There will be a story about Linux, one about IBM, and also some about lesser known competitors like GO Computers and Acer. In Monday's opening statement, Conlin read from a Jim Allchin memo, from the DRI-Novell story. Here's part of what Allchin said about how to deal with the competitive threat from Novell then:

"We need to slaughter Novell before they get stronger....If you're going to kill someone, there isn't much reason to get all worked up about it and angry. You just pull the trigger. Any discussions beforehand are a waste of time. We need to smile at Novell while we pull the trigger."

Yoo hoo. Novell. In case you need that for the your antitrust lawsuit against Microsoft, there you go.

We'll have regular reports on Groklaw from now on, thanks to the Wixted Pope Nora Thompson & Associates, which is assisting the Plaintiffs attorney Roxanne Conlin in this class action lawsuit against Microsoft. They will have someone in the courtroom every day. Court TV Extra, a subscription service, is also carrying the trial live. What has happened already includes the news that the jury will be played the 10 hour deposition of William Gates from the US antitrust trial. That is the video we tried and tried to find but couldn't. It seems to have been erased totally from the free Internet, which is odd. But now, we will get to see it. That isn't all we'll get to see. Microsoft has turned over 25-million plus documents to Conlin.

The plaintiffs allege that Microsoft has violated Iowa’s anti-trust laws by abusing its monopoly power, with the result that Iowa consumers have been overcharged and had their choices unfairly limited. Another allegation is that Microsoft inhibited innovation in the market and created more security vulnerabilities. Also, the case is, so far as I know, the first ever to allow consumers directly to sue Microsoft.

The suit was granted class-action status on September 6, 2003 and divides plaintiffs into two categories: Iowa indirect purchasers of Microsoft operating system software and Iowa indirect purchasers of Microsoft applications software (Word and Excel including Office). They are indirect, in that they bought from someone, not directly from Microsoft, just like you probably do. You get your Microsoft software, most of the time, when you buy from Dell or HP or whoever.

The full title of the case is: Joe Comes, Riley Paint, Inc., an Iowa corporation, Skeffington’s Formal Wear of Iowa, Inc., an Iowa corporation, and Patricia Anne Larsen vs. Microsoft Corporation, a Washington Corporation. If you wish to see the docket list of documents filed in this case go to www.iowa.gov, and click on the judicial page to conduct a search. The case is in Polk County, and the ID number is 05771 LACL082311. Search by Comes, Joe as Plaintiff and Microsoft, Defendant in Polk County and you'll get there. Unfortunately, you can't get the filings there, or at least I can't with my browsers.

Of course Microsoft says it's changed since 1999. But in the information provided by Wixted, there is this intriguing bit:

Microsoft turned over several discs to Conlin’s staff that contained the Nimda computer virus. The virus could have wiped out her electronic records. Microsoft told Judge Rosenberg on November 9, 2006 in a hearing that the problem came from an outside vendor, but that the virus was actually in the original source code.

Here's the court schedule, in case you wish to attend:

Court schedule: Monday – Friday. Court will begin at 8:30 a.m. and end at 11:00 a.m. for a lunch break. Court will resume at 12:00 p.m. and end at 2:30 p.m. There will be no court over winter break, December 21 – January 3, 2007.

There is one other unusual aspect to this case. The judge has ruled that jurors will be able to ask questions during the trial. So if they have any technical questions, they can ask and get clarity. Here's the complete notes from the trial on Monday, December 4, 2006:

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

Ms. Conlin continued with her DRI (Digital Research, Inc.) story. She read several documents and e-mails to show proof that Microsoft successfully ran DRI/Novell out of the DOS business. Here are some quotes from her story.

A few months earlier, a day after the announcement of the DRI/Novell merger, we have discussed a blunt statement from high level executive Jim Allchin…”We need to slaughter Novell before they get stronger.” Listed below is a transcript excerpt regarding Jim Allchin:
Jim Allchin, who you've heard from

22 before -- inside Microsoft -- he's doing the

23 NT, networking, and the NT Windows new

24 technology called NT was facing its own battle

25 against Novell


1 And he says on September 18th, 1993,

2 he surveys the state of the competitive

3 situation between them, and concludes the time

4 has come for decisive action.

5 This is Plaintiffs' Exhibit 1793.

6 Here is what he says. “Sentiment is

7 against us. We can and must turn this around.

8 As we become more aggressive against Novell

9 product and marketing-wise, we must get our

10 mouth in order. The press, et cetera, is very

11 skeptical of us.

12 So one slip up, and we get set back

13 quite a ways.

14 This really isn't that hard. If

15 you're going to kill someone, there isn't much

16 reason to get all worked up about it and angry.

17 You just pull the trigger.

18 Any discussions beforehand are a waste

19 of time. We need to smile at Novell while we

20 pull the trigger.

21 There are thousands of documents that

22 show the truth.

23 Microsoft is not just a tough

24 competitor. It's not just an aggressive

25 competitor. It is a competitor who is willing


1 to break the law and commit anticompetitive

2 acts in order to destroy competition.

“Windows/DOS Beta Blacklist developed by Microsoft includes DRI on the list as of July 13, 1991”. She also states later that the blacklist includes customers of DRI so they are not able to buy Window software without purchasing MS-DOS instead of DR-DOS.

“Microsoft also knows that its use of the beta blacklist against DR DOS has been quite effective.”

“Microsoft may also say that DRI failed because there was no customer demand for the product…Microsoft had the OEM’s locked into long term per processor licenses with huge minimum commitments, those golden handcuffs they used to prevent OEM’s from ever getting away.”

“The evidence in this case, including Microsoft’s own internal documents and deposition testimony of Microsoft’s own employees, and former DRI and Novell employees, and disinterested witnesses – proves that Microsoft has maintained its monopoly in the desktop operating systems business through predatory conduct that excluded competitors from the DOS market, a market in which Microsoft has monopoly power.”

Ms. Conlin continued her opening statement with her second story about the GO Computer.

Ms. Conlin used an old GO Computer as a visual for the jury. It was not workable, but was very effective in understanding what the first portable tablet looked like.

Ms. Conlin introduced several e-mails and documents proving GO had a very smart successful product and that Microsoft felt they were a threat to their success.

Below are some quotes from Ms. Conlin during her GO story.

“…we will see some of the identical anticompetitive tactics that we saw in Microsoft’s actions against DRI…we will see these tactics over and over.”

“…(Microsoft) drives GO out of business with illegal anti-competitive tactics…the victims are different but they share one common characteristic – they somehow threaten Microsoft’s monopolies.”

“The Penpoint operating system is developed on a desktop and will also run on a desktop PC. Unbeknownst to GO, Microsoft sees it as an OS competitor and sets out to do what it does to competitors. Drive it out of business.”

In an e-mail from Bill Gates, Subject: GO threat…”In reviewing some sketchy stuff on the GO machine it is clear that the threat posed by GO is as much an integration threat as a handwriting threat…I can’t believe we don’t have this as part of our architecture when a real architecture would allow for these things.”

In an e-mail from August 9, 1990 from one Microsoft employee to another…”I sent a memo to you last week which had a bunch of info on GO corp. Turns out some of it was confidential and I was not supposed to make copies. Could you please return all of it to me that I can destroy it?”

Court adjourned at 2:30. Ms. Conlin will continue with her GO story on Wednesday, December 6, 2006 at 8:30 am.


  


Comes v. MS Antitrust Trial Begins in Iowa | 519 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Errors here
Authored by: lordshipmayhem on Wednesday, December 06 2006 @ 11:47 AM EST
To make finding them fast

[ Reply to This | # ]

Off topic thread
Authored by: lordshipmayhem on Wednesday, December 06 2006 @ 11:49 AM EST
Please make all links clickable <a
href="http://www.example.com/">like this</a>

[ Reply to This | # ]

Can someone explain this to me?
Authored by: PJ on Wednesday, December 06 2006 @ 11:52 AM EST
Someone sent me a link to a page about how Microsoft can't open some WordPerfect documents. But I get the following message in stead of the page:
One Moment Please...

To help optimize how your Web pages are displayed, we are checking to see if a Microsoft Office 2007 program is installed.

If this page does not automatically redirect, you have scripts disabled. See more information on scripts.

Follow this link if the page is not redirected.

Of course, I do indeed have scripts turned off and I don't have Windows anything. But why would my browser need an Office 2007 program?

[ Reply to This | # ]

Bill Gates is quite the comedian
Authored by: Anonymous on Wednesday, December 06 2006 @ 12:32 PM EST
<br><br>
<i>e-mail from Bill Gates, Subject: GO threat…”In reviewing some sketchy
stuff on the GO machine..."</i>

<br><br>

"some sketchy stuff"... about a handwriting recognition based OS... ha
ha ha ha ha ha ... Was the pun intended?

[ Reply to This | # ]

Comes v. MS Antitrust Trial Begins in Iowa
Authored by: rsmith on Wednesday, December 06 2006 @ 12:41 PM EST

This is really odd.

Microsoft turned over several discs to Conlin’s staff that contained the Nimda computer virus. The virus could have wiped out her electronic records. Microsoft told Judge Rosenberg on November 9, 2006 in a hearing that the problem came from an outside vendor, but that the virus was actually in the original source code.

Anyone who still has nimda on his machines or in his data, five years after it was first spotted and the holes it relies on were patched is extremely incompetent.

Nimda relied on bugs in ISS and MS software's MIME handling. So users of FLOSS OSs and webservers are in the clear, as usual. :-)

The bit about the virus being in the original source code looks like nonsense. Unless it is some kind of script (which nimda isn't), a virus's source code is harmless. A listing of nimda's source code couldn't spread itself. Nimda can hide itself as a DLL in any directory containing word documents, though. Maybe that is what is meant here.

It might just be a goof from a technically clueless person, though. Enough of them around, unfortunately.

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

Jim Allchin speaks the Truth
Authored by: SpaceLifeForm on Wednesday, December 06 2006 @ 02:02 PM EST
It is a competitor who is willing to break the law and commit anticompetitive acts in order to destroy competition.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

GO Computer
Authored by: red floyd on Wednesday, December 06 2006 @ 03:01 PM EST
For more on the GO computer, see Jerry Kaplan's Startup: A Silicon Valley Adventure.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United States of America.

[ Reply to This | # ]

I wonder if she will bring up the lotus memo
Authored by: Anonymous on Wednesday, December 06 2006 @ 03:36 PM EST
minutes of a discussion that came out in the DRI case where it had Gates and
several engineers suggesting the planting of a logic bomb (like the Win31 Beta
bomb against DRDOS) that would "crash Lotus after a few minutes - when
people would call up we could tell them to use Excel". Speaking of which,
Excel ran faster than Lotus for a long time until they discovered Excel used a
secret (undocumented) API call under windows that was 10x faster.

All this was before netscape and java.

And I'm forced to use XP, and haven't succeeded in exorcising iexplore.exe from
its directory - it gets recreated faster than I can delete it (or replace it
with a copy firefox.exe - which is overwritten by IE).

[ Reply to This | # ]

EU?
Authored by: Anonymous on Wednesday, December 06 2006 @ 03:48 PM EST
I am very glad to see Microsoft being sued in Iowa. I wish the EU competition
comission would take some similar action.

[ Reply to This | # ]

  • Er... - Authored by: Sean DALY on Wednesday, December 06 2006 @ 04:08 PM EST
  • EU? - Authored by: Anonymous on Wednesday, December 06 2006 @ 11:19 PM EST
    • EU? - Authored by: MathFox on Thursday, December 07 2006 @ 05:09 AM EST
  • Eu Action - Authored by: Anonymous on Thursday, December 07 2006 @ 11:19 AM EST
sounds familiar...
Authored by: Anonymous on Wednesday, December 06 2006 @ 04:21 PM EST
“Microsoft may also say that DRI failed because there was no customer demand for the product…Microsoft had the OEM’s locked into long term per processor licenses with huge minimum commitments, those golden handcuffs they used to prevent OEM’s from ever getting away.”

isn't that similar to what they're saying about there being no consumer demand for Windows XP N edition... the one they were forced to produce with media player stripped out...

Probably never gave the OEMs any volume discount or market development funds if they wanted to produce PCs with XP N edition on them...

[ Reply to This | # ]

"...used a variety of computer-generated illustrations..."
Authored by: gfim on Wednesday, December 06 2006 @ 04:34 PM EST
I wonder if she used Powerpoint.

---
Graham

[ Reply to This | # ]

MS Antitrust Case History
Authored by: Anonymous on Wednesday, December 06 2006 @ 05:26 PM EST
I'm looking forward to having this case history examined under the Groklaw
microscope--it happened so long ago, that i've forgotten the details, and only
remember the big stuff, such as MS prevaricating that IE was tied to the OS,
and
getting caught fabricating video evidence. Also, IIRC, wasn't judgement
against
MS suspended by the then-incoming Bush DOJ?

We live in interesting
times!

[ Reply to This | # ]

diseased history - collectable quotes
Authored by: grouch on Wednesday, December 06 2006 @ 05:28 PM EST

Anybody interested in collecting juicy tidbits that have resulted from Micro soft court cases over the years? With references, of course.

If this evidence seems damning, consider the ones that got away. Stefanie Reichel, a former Microsoft account manager in Germany, testified under oath that Microsoft intentionally deleted email to hide evidence from the Dept. of Justice. Destroying evidence to impede a federal investigation makes Bill Clinton's alleged offenses--which he may be impeached for--pale in comparison.

-- Microsoft Plays Hardball , by Brian Dellert, October 21, 1998

I think they repeated the same tactic in the Burst case not long ago.

---
-- grouch

http://edge-op.org/links1.html

[ Reply to This | # ]

Groklaw in Iowa?
Authored by: rjhansen on Wednesday, December 06 2006 @ 06:43 PM EST
Who do we have for Groklaw members in Iowa who can report on this firsthand?

If worst comes to worst, I'd be happy to make the two-hour drive to Des Moines
to report on the proceedings. But if there are plenty of others who live closer
to Des Moines than I do, well, then I can stay home. :)

[ Reply to This | # ]

This should be interesting
Authored by: The Mad Hatter r on Wednesday, December 06 2006 @ 06:55 PM EST


Note that Microsoft always settles. This enables them to make the argument that
they are clean now, after all no one has won a court case against them.

The question is will Iowa settle? If it doesn't it could hurt Microsoft far more
than just the cost of the fines.


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

Comes v. MS Antitrust Trial Begins in Iowa
Authored by: Anonymous on Wednesday, December 06 2006 @ 07:02 PM EST
I was certainly very frustrated and disappointed when the Dept of Justice
effectively halted the anti-trust proceedings against Microsoft. It will be
interesting to see whether, after another 5+ year legal slogfest, the US court
system can actually find against and deliver meaningful punishment to such a
wealthy defendant.

I've just about had my fill of legal bastardry with this SCO case, we'll just
have to fortify ourselves for this next lot.

Sorry about the anonymous user - can't create one...

[ Reply to This | # ]

Cluestick to Novell
Authored by: Anonymous on Wednesday, December 06 2006 @ 07:14 PM EST
"We need to slaughter Novell before they get stronger....If you're going to kill someone, there isn't much reason to get all worked up about it and angry. You just pull the trigger. Any discussions beforehand are a waste of time. We need to smile at Novell while we pull the trigger."

Somebody should tell Novell... Oh, they aren't paying attention? Well, too bad then. They were warned...

[ Reply to This | # ]

Comes v. MS Antitrust Trial Begins in Iowa
Authored by: Anonymous on Wednesday, December 06 2006 @ 07:41 PM EST
Link to the Iowa state code governing antitrust:

CHAPTER 553 IOWA COMPETITIOn LAW

http://www.legis.state.ia.us/IACODE/1999SUPPLEMENT/553/

553.5 Monopoly prohibited.
A person shall not attempt to establish or establish, maintain, or use a
monopoly of trade or commerce in a relevant market for the purpose of excluding
competition or of controlling, fixing, or maintaining prices.


[ Reply to This | # ]

Novell Screws Up Big
Authored by: The Mad Hatter r on Wednesday, December 06 2006 @ 09:07 PM EST


Another interesting article from Andrew at Automation Access, in his inimitable style: HERE

---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

two questions
Authored by: Anonymous on Wednesday, December 06 2006 @ 11:16 PM EST
Here is something I am wondering about. In all the previous anti-trust pricing
cases, Microsoft has settled before trial. I wonder why it is going to trial
this time?

Also, from what I understand, in all the settlements, the class-action
plaintiffs were paid for Microsoft's over-pricing in the past, but Microsoft got
to continue to over-price in the present and future. Why can't someone get a
settlement or ruling that it keep its prices legitimate permanenently, or at
least for some extended period like 10 years?

[ Reply to This | # ]

Espionage?
Authored by: Khym Chanur on Thursday, December 07 2006 @ 01:34 AM EST

Though illegal, what exactly does espionage have to do with anti-trust laws?

---
Give a man a match, and he'll be warm for a minute, but set him on fire, and he'll be warm for the rest of his life. (Paraphrased from Terry Pratchett)

[ Reply to This | # ]

political connections...
Authored by: Sean DALY on Thursday, December 07 2006 @ 09:43 AM EST
I have no doubt that Microsoft would support politicians of any political stripe
who they believe would further their goals. For example: MS lobbies the US
government intensively to bring up "intellectual property" issues with
China, Russia, India, Brazil, etc. -- all high-growth markets. Microsoft is a
fellow-traveler with the record and film industries in this regard.

Microsoft spent many years considering Washington, DC irrelevent; in fact Gates
and Ballmer were candid on this topic a few years ago when they finally decided
lobbying was good for business.

For my part I think it would be best not to bring the Republicans and Democrats
into it. Although individual connections are worth scrutiny -- the US ambassador
to the EU for example who is a former MS consultant (for all the good it has
done them) -- I daresay Microsoft's motives will always be pragmatic profit over
ideological sympathies.

Sean DALY.

[ Reply to This | # ]

What the penalty SHOULD be
Authored by: Superbiskit on Thursday, December 07 2006 @ 10:37 AM EST
The single action that would have the most positive effect would be to rule that Microsoft's "OEM contracts," requiring a per-processor tax, etc., are contrary to public policy / the public interest, and are invalidated.

Let Windows, etc., appear on the shelf beside Linux, OpenOffice.org, and like products. In an honest retail market, I believe open source software is more than a match for the crap out of Redmond.

I even filed this recommendation in response to the DoJ public comment period in US vs. Microsoft — a complete waste of time, sad to say.

[ Reply to This | # ]

Certain details are only shown to subscribers ..
Authored by: Anonymous on Thursday, December 07 2006 @ 11:02 AM EST
"Search by Comes .. Unfortunately, you can't get the filings there, or at least I can't with my browsers", PJ

IE6 bring up a page bare of details and this msg ..

"Certain details of case data are only shown to subscribers. You may logon at this time if you are a subscriber, or you may become a subscriber by registering at this time. There is a $25.00 per month subscription fee"

[ Reply to This | # ]

Why is this in State court?
Authored by: DMF on Thursday, December 07 2006 @ 12:53 PM EST
.. given the recently passed law allowing the removal of most class actions to
Federal court?

[ Reply to This | # ]

Comes v. MS Antitrust Trial Begins in Iowa
Authored by: Anonymous on Thursday, December 07 2006 @ 01:35 PM EST
I was a Win 3.1 Beta for Microsoft and recieved both the version that ran with
DRDOS and the one that followed immediately that detected DRDOS and refused to
run - same windows functionality, just designed to kill DRDOS. It was my
impression that they also detected Borland compiler products and caused pseudo
random failures and slowdowns. Gates makes Putin look like a choir boy.

[ Reply to This | # ]

Micro$oft Joins Open Sores Community
Authored by: SirHumphrey on Thursday, December 07 2006 @ 08:37 PM EST
Also released by M$ is:

Open Warfare,
Open Hostility,
Open Fire,
Open Hatred,
Open Subterfuge,
Open Sesame (although Disney has filed suit for (C)opyright infringement),
Open infringement,
Open Sewers,
Open Old Wounds,
Open Mantrap,
Open Mouth Insert Foot
and finally...
Open Pandora's Box (Hope Module deleted)

[ Reply to This | # ]

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