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Comes v. MS: Plaintiffs Get Right to Inform US DOJ of Alleged MS Noncompliance on APIs
Wednesday, January 17 2007 @ 06:36 AM EST

Plaintiffs in the current Iowa antitrust trial against Microsoft told the court yesterday that it is in possession of certain materials, obtained in part in discovery in that case, that they believe is evidence of Microsoft failing to disclose APIs (application programming interfaces) to competitors in violation of the 2002 Final Judgment [PDF] in United States v. Microsoft.

Because there is a protective order in this case, in order to inform the Department of Justice about the evidence, they needed to bring a motion to get the court's permission to let the authorities know about Microsoft’s alleged failure to comply fully. The court granted [PDF] the Plaintiffs' motion, which by my reading gives the Plaintiffs' attorneys and expert witnesses, like Ronald Alepin, the right to inform the Department of Justice that it has certain materials that may be relevant regarding Microsoft non-compliance. If the Department of Justice then requests the information or subpoenas it, they are now free to reveal all such information.

Here's the latest Joint Status Report on Microsoft’s Compliance with the Final Judgments [PDF], which as usual documents the difficulty in getting Microsoft to write documentation, with Microsoft alleging that the new schedule, which dragged out the proceess, may need to be adjusted again if Microsoft finds it can't meet the new schedule either. In the document, you find this paragraph:

Since the prior full Status Report, filed on May 12, 2006, 25 third-party complaints have been received by the United States. All of the complaints were non-substantive and did not raise any issues regarding Microsoft's compliance with, or the United States' enforcement of, the Final Judgment. Each of the non-substantive complaints received a simple response acknowledging their receipt. The New York and California Groups do not believe that they have received any additional substantive complaints since the prior full Status Report.

Well, they've got a substantive complaint on their desks now, or they will if they ask to see the evidence compiled by the Plaintiffs in Comes v. Microsoft.




JOE COMES et al,







This matter comes before the Court upon the motion of the Plaintiffs to modify the protective order in this case for the limited purpose of disclosing certain findings concerning the Defendant's alleged non-compliance with a judgment and order entered in another case involving the Defendant.

The Court finds that the Plaintiffs and its expert witnesses may contact the appropriate authorities responsible for the enforcement and compliance of any orders, judgments or decrees in the other judicial matter concerning the Defendant and inform such authorities that it is in possession of information that may be relevant to such enforcement and compliance. The Plaintiffs and its expert witnesses may then reveal the information it has only to the appropriate enforcement and compliance authorities and only upon request of said authorities or in compliance with a court order or subpoena. The Plaintiffs and its expert witnesses shall not reveal the information to anyh other persons or entities.

Dated this 15th day of January 2007.

Fifth Judicial District of Iowa

Copies to

Roxanne Conlin

Richard Hagstrom

David Tulchin

Brent Green


Comes v. MS: Plaintiffs Get Right to Inform US DOJ of Alleged MS Noncompliance on APIs | 178 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Erwan on Wednesday, January 17 2007 @ 06:44 AM EST
If any


[ Reply to This | # ]

Off Topic here
Authored by: Erwan on Wednesday, January 17 2007 @ 06:45 AM EST
Groklaw adicts like clickies...


[ Reply to This | # ]

Entertaining proceedings
Authored by: clueless on Wednesday, January 17 2007 @ 07:12 AM EST
I am not sure where this development will lead us, but have at least found the
court proceedings, esp. cross-examination of Mr.Alepin on 9th Jan 2007 to be
rather entertaining.

Some of the exchanges between the defendants' attorneys and the expert witness
were funny, and I enjoyed reading how the Court ruled that MS had opened the
door for Mr.Alepin to give expert testimony about economic / competitive aspects
of the trial by asking him about value and pricing, in direct contradiction of
its earlier objection (and hence the Court's ruling) to him testifying about
these very issues on direct examination.

It seems that MS' dirty courtroom tactics will lead to it getting more than what
it bargained for, eventually.

{insert favourite .sig here}

[ Reply to This | # ]

  • Quick sand - Authored by: Anonymous on Wednesday, January 17 2007 @ 01:09 PM EST
Maybe Neelie Kroes' would be interested too?
Authored by: Winter on Wednesday, January 17 2007 @ 07:37 AM EST
I can imagine that the EU dg for competition would be interested in these
materials too.


Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.

[ Reply to This | # ]

  • pub dues - Authored by: Anonymous on Wednesday, January 17 2007 @ 01:56 PM EST
    • pub dues - Authored by: mtew on Wednesday, January 17 2007 @ 02:28 PM EST
Time to market
Authored by: tiger99 on Wednesday, January 17 2007 @ 07:37 AM EST
It seems to me that M$ are unable to create proper documentation for several reasons.

Firstly, Bill created M$ as a super-size clone of himself, and I have had to use some of the documentation that he wrote, many years ago, which was undescribably awful. It was only a manual for Basic, which other suppliers invariably were able to produce to a decent standard.

Secondly, and again due to Bill's obsessive behaviour, and inability to document things, he can't understand how you can document an interface properly without revealing source, and of course will never, ever reveal source, despite the fact that Unix and other systems comprehensively documented their APIs, even to binary-only licensees, from a very early date. Therefore, he probably genuinely believes that producing comprehensive documentation is impossible.

But thirdly, and most important now, as few people care about Bill's attitude and incompetence any more, it is simply an issue of time to market. As we have discussed here before, that is the key issue with any new product, assuming that there is competition. Now by conjuring up feeble and imaginary excuses for why the documentation is late, and either doing a very inadequate job, or intentionally incorporating serious errors where they will do the most damage, M$ are able to gain weeks, maybe even months, every time some stuff is produced and has to be sent back for rework. All of this of course seriously delays access to the correct APIs by their competitors, and hence delays their competitors products. But notwithstanding the alleged Chinese Walls etc, you can be sure that any application developer in M$ need only ask his counterpart on the OS side of he encounters a problem or lack of information. So M$ will get their applications to market well ahead of the competitors, thus continuing to propagate the Illegal Monopoly.

This will continue, both in the US, and in the EU, until and unless the courts are able to apply severe penalties such as jail sentences to senior people at M$. Otherwise they will continue to treat the court system with contempt, and stall for time on the documentation until eternity.

It is unfortunate that it is not a UK court that is involved, because here there would have been severe action for contempt of court long ago. M$ are simply making a mockery of legal systems worldwide, and it really needs to be stopped.

Hopefully some of the stuff that the Iowa experts are uncovering will be so incriminating that there will have to be swift and decisive action.

[ Reply to This | # ]

protective order ..
Authored by: Anonymous on Wednesday, January 17 2007 @ 07:57 AM EST
PJ, could you tell us something about protective orders, how they relate to this
case, how they are obtained and by who etc ..

[ Reply to This | # ]

A cynical response re the DOJ
Authored by: OmniGeek on Wednesday, January 17 2007 @ 08:54 AM EST
Seems that not only do the Plaintiffs have to notify the DOJ that they have
evidence of MS violations, the DOJ must request that information before it can
be disclosed. While this appears reasonable per se when dealing with otherwise
privileged information, I'd be somewhat surprised if the DOJ actually follows up
on this one.

Given the current administration's less-than-stellar record regarding political
interference with science, and their evident willingness to subvert the due
process of law for their own convenience, I think it rather likely that this
request will be binned with the rest as "not containing responsive
information," and will be ignored. (Strictly speaking, it's true; the
request itself doesn't contain the information.) If one is looking for an excuse
for inaction, or has been ordered by the political leadership not to act, this
two-step process inadvertently provides a useful loophole.

Now, this is a VERY cynical take on the DOJ's recent handling of the MS case,
but the trouble with cynicism these days is that it is frequently not cynical
enough to match the reality. I hope I'm wrong, but...

My strength is as the strength of ten men, for I am wired to the eyeballs on

[ Reply to This | # ]

Will Feds ask for the evidence?
Authored by: lordshipmayhem on Wednesday, January 17 2007 @ 08:55 AM EST
Forget the politics of "Microsoft buying off government" for a moment.
Will the prosecutor in this case really, REALLY want to know that he's had the
wool pulled over his eyes? Will the bureaucrat responsible for this case REALLY
want to look to the universe like a too-trusting mark, a patsy?

Possibly not, but then again, they might use this as a stepping-stone to
promotion, trying to build up a reputation as the new Eliot Spitzer, especially
if the prosecutor in charge of this file isn't the same one who had it when the
original agreement was signed.

Odds, anyone?

[ Reply to This | # ]

Don't Bother with the DOJ -- Tell the Judge
Authored by: Anonymous on Wednesday, January 17 2007 @ 09:48 AM EST
Way back in October 2001 when the DOJ snatched defeat from the jaws of victory,
it became obvious that Bush's DOJ got new marching orders to play nice with M$.

If the plaintiff's lawyers want to see action, tell it to the judge.
Kollar-Kotelly does take her job seriously, even if the DOJ does not.

[ Reply to This | # ]

Vague to the degree of being covert
Authored by: DaveJakeman on Wednesday, January 17 2007 @ 09:54 AM EST
What stikes me odd about this ruling is the vague, non-communicative language it
is couched in. Had PJ not explained it, I probably wouldn't have guessed what
it was about. Why so vague? Is there some good reason for that, or is it just
the Judge's habit?

I would rather stand corrected than sit confused.
Should one hear an accusation, try it on the accuser.

[ Reply to This | # ]

source code
Authored by: Anonymous on Wednesday, January 17 2007 @ 11:21 AM EST
Jan 10 transcript:


10 It's the motion, Your

11 Honor, to modify the protective order to permit

12 the Plaintiffs to communicate certain

13 information to the Department of Justice

14 concerning alleged noncompliance with the 2002

15 final judgment.


16 And it's based upon

17 Mr. Schulman's findings from reviewing the

18 source code.

19 THE COURT: Okay.


4 Mr. Schulman is the man who got access to all

5 of this Windows XP source code. And we are

6 very concerned, Your Honor, that that

7 information not find its way into the hands of

8 competitors and the open source community and

9 hackers and God knows who else.

[ Reply to This | # ]

Undocumented API's
Authored by: papafox on Wednesday, January 17 2007 @ 12:08 PM EST

The following has been taken from Comes vs. Microsoft case website. It gives an overview of what the Ronald Alepin's testimony regarding the API's,

Ronald Alepin testified that Microsoft applications developers enjoyed a significant advantage over competing software developers like Lotus. Microsoft used undocumented APIs (Applications Programming Interfaces) in Windows that allowed its developers to write programs that worked better with with the Microsoft operating system than the competitors. According to one series of email messages, to the extent these APIs were provided to developers at all, they were simply inserted into several megabytes of notes onto a CD-ROM, in a “very low profile” intended to “discourage” developers from using them and to provide enough “air cover” to allow Microsoft to say they were documented. One Microsoft product manager noted the number of APIs at issue: “All I can say is holy API batman…I’m not kidding…we are talking about literally 500-800 APIs here, no joke.”

Just keep in mind folks, that this quote comes from a partisan press release. You can get a better understanding by reading the transcript starting around page 8080.

[ Reply to This | # ]

MS Windows: Platform or Application?
Authored by: filker0 on Wednesday, January 17 2007 @ 01:53 PM EST
I've long been of the opinion (since the mid 1990s, when I was doing development for the MS platforms) that Microsoft has viewed its Windows line (in which I include Win95 and all of the Win NT family) as a platform for Microsoft applications, with an emphasis on Office. The fact that third party applications can be hosted is of secondary importance.

A number of the APIs appear to have been added specifically for MS Office, MFC/ATL and Doc/View are very MS Office oriented, and the systems come out of the box configured to optimize the behavior of those MS applications. Even if MS then documents these APIs, they are less useful to the competition because they're tailored to how the MS app is going to use them, and since the app group requested the API in the first place, they have a significant lead in using it.

The remedy that seemed to be in the offing back before the change of administration in 2001 was that MS would be required to erect a less permiable wall between the platform and applications groups, either by splitting up the company into separate platform/tools and applications companies, or by something with a similar outcome for the development process, thereby leveling the playing field. Once the Bush DoJ took over, this remedy was off the table.

To me it comes down to whether you view the OS platform as a "Common Carrier" that is required to be application neutral, or as an application that is able to host extensions and third party programs. I believe that the former is how the law should view it, but I also believe that Microsoft views (or at least treats) it as the latter.

I should note that this opinion was formed back in the 1990s, and that I chose to leave the business of writing applications for MS platforms because of this in 1996. It may have been a poor career move, but I'd come to the conclusion that that segment of the industry had "lost its collective mind". Nothing that has happened since has altered my opinion of this, though I stopped tracking MS development documentation when I could no longer afford to pay for MSDN subscriptions.

Standard disclaimers apply, such as "IaNaL", "the opinions expressed here are my own and do not reflect those of my employer or previous employers", and "no animals were harmed in the composition or transmission of this message".

Still one of those things that goes "BUMP! (ouch)" in the night.

[ Reply to This | # ]

what do you think?
Authored by: Anonymous on Wednesday, January 17 2007 @ 04:56 PM EST
Will they ask for the evidence or cover their ears/close their eyes and shout 'i
don't hear it! i don't hear it!'

[ Reply to This | # ]

Comes v. MS: Plaintiffs Get Right to Inform US DOJ of Alleged MS Noncompliance on APIs
Authored by: Anonymous on Thursday, January 18 2007 @ 10:43 AM EST
It seems to me that if the complaintsplaintiffs thought that microsoft was so
bad, malicious and evil; that they would then turn and play with the other kids
in Unix or Apple land instead. Really a no brainer.

This is business, not bullying the market share. Capitalism at it's finest. Just
like some companies don't share their secret recipe for steak sauce. You can try
to pick it apart as many ways as you want but it is as simple as that.

[ Reply to This | # ]

Comes v. MS: Plaintiffs Get Right to Inform US DOJ of Alleged MS Noncompliance on APIs
Authored by: Anonymous on Thursday, January 18 2007 @ 12:13 PM EST
you mean microsoft didn't follow the DOJ ruling and just did what they wanted
because they are above the system.

naaah! not microsoft.

[ Reply to This | # ]

It's become obvious that SCO is a Wookiee
Authored by: Anonymous on Thursday, January 18 2007 @ 02:43 PM EST
This is the real show. It's time to leave Darl and company to the Nazgul(Mixed
movie metaphors????) and get serious about Emperor Gates and Darth Ballmer. The
Novell agreement isn't a Deathstar, but it's probably the first major move in
the next phase of the war.

[ Reply to This | # ]

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