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The Microsoft Minnesota Antitrust Trial
Saturday, March 20 2004 @ 03:58 PM EST

Microsoft is on trial in Minnesota regarding overcharging for Windows and the Word and Excel programs. Because of the leaked Halloween X memo, and the subsequent revelation that Microsoft was instrumental in finding funding for SCO, something I simply couldn't believe until BayStar admitted it, it's obvious Groklaw needs to pay more attention to the Microsoft part of the SCO story.

For that reason, I will be covering the Minnesota trial, Gordon, et al. v. Microsoft (Court File No. MC 00-5994), as well as the Lindows situation, as I am able. You can help. It seems that the Fourth Judicial District Court is quite enlightened about the Internet, and they are making all the exhibits available on their website. The plaintiff's have a website too, where you can find the Complaint and a FAQ.

Here's what their website says their policy will be:

"Opening arguments began on Monday, March 15, 2004. All electronic trial exhibits will be available on this website the day after they are admitted and published to the jury during the course of the trial, unless otherwise ordered by the Court.

"All transcript requests should be addressed to Paradigm Reporting (612) 339-0545 or 1-800-545-9668. Please be advised that the Court does not provide free copies of transcripts.

"Normal hours for the trial are 9:00 am to 4:30 pm Monday through Thursday. The courtroom is C1556. The public is welcome as space permits.

"The Court has implemented a case information line to provide daily updates of this case's status. Call (612) 348-2363 after 4:30 pm to listen to a recorded message."

Some exhibits are already available, unfortunately as TIFFs instead of PDFs. If the court has a suggeston box, I would like to request PDFs. Here's the page for Plaintiff's exhibits. And here is Microsoft's exhibits page. There is some audio from the opening day available too, from Minnesota Public Radio, for those who use Real Player. Some local coverage in the Duluth Superior informs us that the judge is District Judge Bruce A. Peterson. The article says the judge told the jurors on opening day that the case differs from the federal antitrust case in that it is about certain products and covers a slightly different time period. The plaintiffs' website says: "If you purchased, in Minnesota, Microsoft Windows, MS-DOS, Word, Excel, or Office software, or a personal computer on which this software was already installed, from May 18, 1994 through December 15, 2001, you may be affected by a class action lawsuit."

More details from MPR:

"Inside the courtroom, Grossman's law partner, Eugene Crew [representing the plaintiffs], offered a spectacularly detailed opening statement. On a giant screen jurors saw dozens of internal memos from Microsoft, Intel and other technology companies. Clips from video depositions gave a hint of the hours of such tape that are to come, including a deposition from Microsoft Chairman Bill Gates originally recorded for the federal case. Gates is expected to testify in person in Minneapolis.

"Crew tried to put the case in terms familiar to the Minnesota jurors. He asked them to consider Xcel Energy, their sole energy provider. Now imagine, he said, that Xcel gets into the business of making toasters. And every time another toaster-maker built a toaster that could be plugged into the power outlet in your home, Xcel changed the shape of the outlet so that only their toasters would work.

"This, Crew said, is much like the charges of technical sabotage against Microsoft: That deliberate booby traps in Microsoft software kept competitors' products from functioning correctly."

Suburban Herald News has quite a bit of detail, including the news that Microsoft's opening statement was an apology for past behavior:

"Microsoft Corp. apologized to jurors for its past anticompetitive practices during opening statements Wednesday in a case alleging the company's antitrust violations include word processing and spreadsheet software.

"'Yes, we acknowledge that and we apologize for it,' said David Tulchin, a Microsoft attorney. 'The conduct involved competition that went over the line. The question for you is whether or not consumers were overcharged.'"

The question SCO watchers have is: Is the anticompetitive behavior in the past? Or is it continuing and this time against GNU/Linux? What grabbed my attention is a detail in this article, that the plaintiffs opened by testimony about the DR DOS case:

"The plaintiffs began their case on Tuesday with videotaped testimony from former Microsoft executive Phil Barrett, who talked about a memo from Gates directing software engineers to find a way for Windows to tell whether the underlying operating system was Microsoft's or a competitor's. Early versions of Windows required a DOS operating system, typically purchased separately.

"Testimony from Barrett outlined during opening statements said Microsoft sought a way to have Windows warn users that it might not be compatible with non-compatible operating systems.

"Barrett said in the May 17, 2002, testimony that Microsoft's MS-DOS was nearly identical to the competitor, DR-DOS. It countered Microsoft's efforts to portray DR-DOS as incompatible with Windows. 'DR-DOS was a pretty darn good clone of MS-DOS,' he said. 'It was compatible.'

"Barrett gave similar testimony when DR-DOS owner Caldera sued Microsoft. That case was settled in 2000.

"Tulchin told jurors that Barrett now works for Microsoft competitor RealNetworks Inc. And he said several computer makers chose MS-DOS over DR-DOS because there was no customer demand for DR-DOS."

Ah, Microsoft. Some things never change, I see. Some of the exhibits already available are about this deliberate and totally unnecessary "warning" to users of DR DOS so they would imagine something was wrong with their software. I can't help but wonder if the MS-proposed DRM isn't just another way to make sure you only use their products.

Evidently, despite Canopy Group successfully petitioning the court to let it destroy all the DR DOS evidence, some of it survives, and they have it in Minnesota. You might find the Caldera Statement of Facts useful information, because it lays out specific tricks Microsoft used against DR DOS, including the bogus warning. Here's just a small part of what it says they did:

"FUD: Breaking Windows

"195. FUD -- and specifically, claims that DR DOS would actually cause Windows to break -- became the focus of an intense Microsoft attack following the DRI/Novell merger announcement. On November 7, 1991, David Cole summarized the plan, and the need for appropriate PR 'spin':

"There is an obvious conflict quickly approaching us, and I get the feeling we are not very prepared PR wise. The conflict is Windows 3.1 and DR-DOS. Apparently DRI is quite aware of our plans to not test with DR-DOS, our plan to not let them enter the Win 3.1 beta program, and our plan to detect the presence of MS-DOS and warn the user they are on an un-tested OS if MS-DOS is not detected.

"Exhibit 238

"In addition, Microsoft also made several code changes to Windows 3.1 to ensure that DR DOS 6.0 would not run with either betas or the final release version of Windows 3.1. See infra 262-264.

"196. To block out DR DOS, Microsoft began explicitly informing OEMs that Microsoft 'would guarantee that Windows would not work with DR DOS, and that if they licensed DR DOS they would be making a vital mistake in the marketplace having a product that wouldn't work with Windows.' Dixon Depo. at 337; see Reichel Depo. at 61-62, 101. . . .

"Exhibit 158

"210. Microsoft knew that it faced a dilemma: Windows and DR DOS did not compete, and thus no legitimate pro-competitive reasons existed to withhold the beta. Discussions among the Microsoft executive staff led to a most Orwellian resolution. On August 15, 1991, Silverberg reported to his development team dealing with the beta blacklist issue:

"We recently decided to start referring to Windows as an operating system in our communications, not a graphical environment or user interface for dos. we should be consistent in the new usage. thanks.

"Exhibit 164

"Microsoft thus began propagating the fiction that continues to this day: Windows and DR DOS somehow competed, and so it was 'okay' to exclude DRI from the beta test cycle.(25)

"211. When beta testers called in with questions concerning the interoperability of Windows 3.1 and DR DOS, they were explicitly informed that Microsoft did not want Windows to work with DR DOS. On October 31, 1991, Andy Hill told his Windows 3.1 beta staff:

"For beta testers that report problems w/ DR DOS and 3.1:

"DR-DOS is an untested and therefore unsupported operating system. MS-DOS (or OEM versions of it) is required for Windows. Using DR-DOS with Microsoft Windows is at the sole risk of the user. We don't support it."

It's no wonder these proprietary dudes can't grok the FOSS concept of community and sharing knowledge. They think like generals in a war. But, as ugly as it is, and it is, we probably need to pay attention. There will likely be information that involves GNU/Linux that will show up in Minnesota. There was a memo that the judge in the federal antitrust trial wouldn't allow in (presented too late, she ruled), that showed that Linux was on their radar back in 2000:

"In the August 2000 e-mail, Microsoft vice president Joachim Kempin complained that chipmaker Intel was contacting computer makers 'who are not (Microsoft) friendly in the first place and ... encouraging them to go to Linux,' a free operating system that competes with Microsoft's Windows.

"Kempin wrote to Gates that Kempin planned to 'stop any go-to-market activities with Intel (and) only work with their competitors.' Kempin also suggested that Microsoft withhold technical information from computer makers, an issue brought up by the states.

"'I would further try to restrict source code deliveries where possible and be less gracious when interpreting agreements again without being obvious about it,' he wrote."

Another reason to pay attention is that there may be a class action lawsuit someday against Microsoft regarding anticompetitive behavior against GNU/Linux. I'm beginning to suspect that if they keep supporting SCO, it's almost inevitable.

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