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Where is Judge McConnell when you need him? | 185 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Fix?
Authored by: lnuss on Monday, July 16 2012 @ 03:30 PM EDT
While I know of no specific evidence, the impression I take away from all this
is that "the fix" is in. An impartial judge he does not seem to be.

It's unfortunate that it seems this way, but even the judicial system is run by
humans.

---
Larry N.

[ Reply to This | # ]

Corrections go here
Authored by: ilde on Monday, July 16 2012 @ 03:31 PM EDT
If any.

[ Reply to This | # ]

Off Topic Here
Authored by: lnuss on Monday, July 16 2012 @ 03:32 PM EDT
Please keep these posts off the topic in the article.

---
Larry N.

[ Reply to This | # ]

JMOJPO
Authored by: Anonymous on Monday, July 16 2012 @ 03:36 PM EDT
Judgement as a matter of judge's personal opinion. It may be that he simply
denies the possibility of anticompetitive behavior ever occuring. The almight
market could never allow such a thing, after all. Or maybe he was bribed.
Maybe the bribe is the feeling of power he gets when he writes his own laws.
Maybe he actually got money from Microsoft. Either way, it is certainly not
judgement as a matter of LAW.

If Novell appeals, and if the judge gets reversed yet again, I wonder what will
happen when he again jumps through hoops to make sure that he is the judge in
the case. Hey, at least the lawyers will make tons of money.

[ Reply to This | # ]

Where is Judge McConnell when you need him?
Authored by: Anonymous on Monday, July 16 2012 @ 03:39 PM EDT
Curious to see how long a reach Judge McConnell's SCO opinion goes.

[ Reply to This | # ]

Why PJ, have you reached a frustration limit?
Authored by: rocky on Monday, July 16 2012 @ 04:23 PM EDT
This seems like a bit of a...let's say..."course correction".
Usually, it is only commenters here who make statements about a judge possibly
being corrupt and "the fix is in", and such, and you are the one who
admonishes them to not say such things and be more respectful of the judges,
etc. The tone seems to be different here. Is this ruling so far off the deep
end that you are no longer willing to give the benefit of the doubt to Judge
Motz? I suppose since this is the latest in a long pattern, there is cumulative
evidence of his bias. This is not a negative at all. I actually think it's
refreshing to see that a judge can finally get on your nerves enough for you to
go ahead and call it like it is--that he's playing favorites.

[ Reply to This | # ]

But, but, but, ...
Authored by: Anonymous on Monday, July 16 2012 @ 05:42 PM EDT
Microsoft’s position is based upon the Findings of Fact made in the government case, upon which Novell’s claim is founded. Judge Jackson found that “[c]urrently, no middleware product exposes enough APIs....
Ummm, but if the jury weren't allowed to know those Facts, how can they now be used in a finding of Law?

[ Reply to This | # ]

no reasonable jury
Authored by: Anonymous on Monday, July 16 2012 @ 06:01 PM EDT
In short, no reasonable jury could find, on the basis of the evidence presented at trial, that Microsoft’s withdrawal of support for the namespace extension APIs caused Novell’s failure to develop its applications within 90 days of the release of Windows 95.
So, is Judge Motz saying that he had an unreasonable jury? Or that their finding was based on evidence withheld from trial? Either way it's a kick in the teeth for the poor jury.

[ Reply to This | # ]

Don't foget that most of Novell's case was already thrown out earlier
Authored by: Anonymous on Monday, July 16 2012 @ 06:08 PM EDT
As you are reading this and wondering how someone could think that Microsoft
wasn't guilty of anti-competitive behavior, please remember that four of
Novell's original six claims were thrown out early on because Novell didn't file
early enough. Unfortunately for Novell, they were the easy ones. The problem was
that Novell didn't file early enough to allege that Microsoft sabotaged
WordPerfect (and Quattro Pro, etc.) in order to help Microsoft office compete
against WordPerfect. Clearly they would have deserved to win on those claims had
they filed earlier.

The only two claims Novell has left involves Microsoft competing in the OS
market. These are much trickier for Novell to prove because WordPerfect didn't
compete in that market. One claim in particular is tough because it involved
Microsoft sabotaging the ability to use the namespace APIs (which made Windows
*less* competitive short term), so that the Wordperfect wouldn't provide a
bridge to other OSs. To sell this, Novell said that if they could have used the
APIs, WordPerfect on Windows 95 would have been much better than the previous
versions of WordPerfect. But that raised the question of why wouldn't people
switch from the old versions on other OSs to WordPerfect on Windows 95? That
would have meant that Novell would have had to spend a great deal of effort
keeping the other versions of WordPerfect competitive. It's apparently not clear
that Novell's new management (after Ray Noorda was gone) were ready to do that.

One indication that Novell's case is weak is the fact that Microsoft is fighting
it. They settled the antitrust cases that they were going to loose. Novell
negotiated with Microsoft to try to settle its antitrust claims. Microsoft paid
$536 million to settle Novell's Netware claims, but wouldn't pay to settle the
WordPerfect ones.
(http://www.novell.com/news/press/archive/2004/11/pr04076.html)

I don't know whether Judge Motz is right or wrong here. I just know that it's
not nearly as clear cut as it would have been if Novell wasn't so hamstrung by
filing too late to pursue their best claims against Microsoft. People are
misleading themselves if they ignore the fact that having four of six claims
thrown out affected the case.

[ Reply to This | # ]

What are the odds?
Authored by: Anonymous on Monday, July 16 2012 @ 08:37 PM EDT
What do you suppose the odds are of this decision being reversed, the jury's
verdict reinstated, and the words "clear abuse of discretion"
appearing in the order issued by the court of appeals?

Because I'm hoping they're fairly high. I suspect this judge is one of those
who doesn't believe in anti-trust law.

[ Reply to This | # ]

Judge Motz Rules for Microsoft, Once Again, on Motion for JMOL; Novell Will Appeal ~ pj - Updated
Authored by: Anonymous on Monday, July 16 2012 @ 09:29 PM EDT
Motz must be from the same planet as Colleen Kollar-Kotelly. They sure do see
things differently where ever that is.

[ Reply to This | # ]

News Picks Thread
Authored by: artp on Monday, July 16 2012 @ 10:54 PM EDT
Pick your News and comments here, folks! URLs are
appreciated.

No Noose Picks, GNUs Picks or Snoose Picks allowed.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

If when, this case goes into appeal, will Motz preside over the trial AGAIN?
Authored by: Anonymous on Monday, July 16 2012 @ 10:57 PM EDT
Bring him back to Salt Lake during Christmas AND New Years, under another
inversion with bad air quality and perfect weather for Seasonal Affect Disorder,
the threat of whooping cough and bad restaurant food for another six week+
trial.

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Monday, July 16 2012 @ 10:57 PM EDT
Contributions (of text marked up to Geeklog HTML) from the
Comes v. MS case can be inserted right here.

See the "Comes v. MS" link above for details and a list of
documents that need to be transcribed.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Judge Motz Rules for Microsoft, Once Again, on Motion for JMOL; Novell Will Appeal ~ pj - Updated
Authored by: Anonymous on Monday, July 16 2012 @ 11:34 PM EDT
Sure is nice to see some redemption with Novell....I guess what come
around goes around. Kharma is a good thing...at least us humans who got
hosed in the sco v Novell have a little bitter sweetness.

[ Reply to This | # ]

I don't think Judge Motz said that
Authored by: Anonymous on Tuesday, July 17 2012 @ 12:17 AM EDT
Update: I have done the memorandum as text, and I'll point out a couple of things. First, the judge didn't believe Bill Gates' testimony either, that stability was the reason for undocumenting the APIs. The judge agrees that this was pretextual. Second, the problem with the decision, from my perspective, is that on a JMOL motion, the judge is not supposed to weigh the testimony of witnesses, a role that is given to juries, unless there is *no* way any reasonable jury could find for a party. Yet, here, that is precisely what the judge does.
I don't think Judge Motz said what you say he did. I think he did what you said that he should have done. This is from near the top of page 17 (my underlines):
Here...I believe the text of Gates's email provides sufficient evidence upon which a jury could find that the reasons for the October 3, 1994 decision to withdraw support for the namespace extensions were pretextual. Therefore, if the only question raised by the Rule 50 motion were whether the jury was asked to weigh the factors that led Microsoft to make the October 3, 1994 decision, I would deny the Rule 50 motion.
He decided that point in Novell's favor. He even went about it the correct way, as far as I could tell. He didn't decide whether or not to believe Bill Gates; he said that the jury could decide to not believe Bill Gates. That's certainly reasonable and it's similar to what we have seen other judges say in JMOL motions.

Microsoft apparently wanted Judge Motz to think that if Bill Gates said it was so, then you had to just assume that it was so. Fortunately, Judge Motz didn't agree with that. Unfortunately for Novell, he agreed with some other things, though.

There may be something else that PJ was talking about, but I didn't see it. (PJ also made a third point in her paragraph, but I didn't look at that.)

[ Reply to This | # ]

Maybe he just wants to go home
Authored by: Anonymous on Tuesday, July 17 2012 @ 01:29 AM EDT
OK, I'm being facetious. But he is based in Baltimore, and I forgot the reason
he was sent to Utah for this. Odd thing is that he is in the Maryland District,
and his wife sits on the 4th Circuit Court of Appeals, which includes the
Maryland District. Assuming she isn't assigned to her husband's appeals, but it
still seems awkward. Any other district where a judge's spouse sits on that
district's Circuit Court of Appeals?

[ Reply to This | # ]

Selective Reporting
Authored by: Ian Al on Tuesday, July 17 2012 @ 05:03 AM EDT
The policy decision to withdraw the published APIs was Bill Gate's (email: 'Billg says do it!'). Frankenburg complained to Bill Gates and raised the issue to a formal legal complaint from General Counsel to General Counsel.

From State of New York, et al, v. Microsoft:
Ultimately, by writing to the middleware API set, applications developers could write applications which would run on any operating system on which the middleware was present. Plaintiffs focused their attention primarily upon two such middleware threats to Microsoft’s operating system dominance–Netscape Navigator and the Java technologies. See Microsoft, 253 F.3d at 53.

The district and appellate courts accepted Plaintiffs’ theory of competition despite the fact that “neither Navigator, Java, nor any other middleware product could [at that time], or would soon, expose enough APIs to serve as a platform for popular applications.” Id.; Findings of Fact ¶¶ 28-29.
I find that it is always dangerous to rely on Microsoft 'Get The Facts' motions.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Strange that PJ omits to mention
Authored by: Anonymous on Tuesday, July 17 2012 @ 01:23 PM EDT
... that the same Judge had previously ruled against Microsoft multiple times. For instance, in the 2002 Sun case.

In fact, th is article asserts this judge was biased against Microsoft in that case:
During the hearing to decide this injunction, Judge Motz made a number of questionable comments from the bench, as noted by CAC's Nicholas Provenzo in this post. From the tone of his comments, Motz clearly was ready to rule for Sun almost from the beginning. But at the same time, I would not presume to argue (in the absence of additional evidence, that is) that Motz was not acting correctly under the law. After all, antitrust generally presumes the defendant's guilt from the outset. Unlike murder, rape, or any other objectively defined crime, antitrust violations exist entirely in the eye of the beholder. What this means, more often than not, is that the defendant must prove his conduct wasn't "anti-competitive" or otherwise illegal. Microsoft's very dominance of Windows was itself a presumption of guilt. After all, what rational company wouldn't abuse its monopoly? Of course, the fact that Microsoft had no monopoly—such things are solely the creation of governments, not private businesses—is irrelevant. Facts rarely get in the way of antitrust.

This was not the first time Microsoft faced a clearly biased judge, either.
And mysteriously, PJ conveniently forgot that he also rejected MS's (hilariously self-serving) class action "settlement offer".

Oh, there was a 11-1 hung jury? Well, of course, juries can never be wrong, say, like by awarding ridiculous damages for infringement on two claims of a single patent whose validity is still doubtful, or finding that Go ogle did not copy those 8 decompiled test files from Oracle.

Oh, he's flown in from outside his district to oversee this case? Could just maybe possibly because he has a lot of experience with Microsoft anti-trust cases?

Oh, right, I forgot what site this is. OF COURSE MS is evil and so OF COURSE let's ignore all the inconvenient facts and imply that the Judge is corrupt...er... biased...er... acting "mighty strange".

[ Reply to This | # ]

Novell will win
Authored by: Anonymous on Tuesday, July 17 2012 @ 03:50 PM EDT
I think ultimately Judges always try to do what they think is
right and fair, but that doesn't mean they are not sometimes
wrong.

That is why there is a Court of Appeals with a three judge
panel. Ultimately, if Novell appeals, I think they will win,
because the facts and law appear to be on their side. Justice
is sometimes a slow and painful grind.

[ Reply to This | # ]

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