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The Jury doesn't have its head on straight | 111 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: nsomos on Sunday, July 22 2012 @ 10:34 PM EDT
Please post any corrections in this thread.
A summary in the posts title may be helpful.
Before offering a correction to the transcript,
check against the original, as we try to be true
to originals, even if they were in error.

Thnx -> Thanks

[ Reply to This | # ]

Off Topic
Authored by: Tufty on Monday, July 23 2012 @ 02:31 AM EDT
Off tropic will be good

---
Linux powered squirrel.

[ Reply to This | # ]

News Pics
Authored by: Tufty on Monday, July 23 2012 @ 02:31 AM EDT
Read all abaaaarrrt it

---
Linux powered squirrel.

[ Reply to This | # ]

Comes Documents
Authored by: Tufty on Monday, July 23 2012 @ 02:32 AM EDT
We see the importance of this project here

---
Linux powered squirrel.

[ Reply to This | # ]

Time to retire, Motz?
Authored by: Anonymous on Monday, July 23 2012 @ 06:07 AM EDT
It seems we have a judge with memory issues who likes making new law "from
the bench".


When (and how (for ongoing cases, etc...)) do judges normally retire? And do
they ever need to be "pushed" to it?

[ Reply to This | # ]

Another big problem with the middleware ruling?
Authored by: Anonymous on Monday, July 23 2012 @ 08:21 AM EDT

The judge's reliance on the U.S. v. Microsoft findings of fact in order to rule against Novell raised a big red flag for me. I don't know whether the Novell lawyers made the appropriate objection and preserved it, but under ordinary application of principles of offensive non-mutual collateral estoppel in federal courts, the factual findings from the previous case could only be used in Novell's favor, not against it.

Microsoft already had a full and fair opportunity to litigate the issues and would thus collaterally attack the validity of the prior judgment against it if allowed to relitigate the same issues in a later case. Novell, on the other hand, as a non-party to the earlier proceeding cannot be bound by the earlier findings of fact because it had no prior opportunity to litigate those facts. So ordinarily, the judge could use the prior findings of fact against Microsoft, but not against Novell.

However, quirky exceptions to the ordinary application of the principle can be created by the case's procedural posture. For example, if Novell relied on the findings without offering its own alternative evidence, I can see a colorable argument that its proffer of the findings became a representative admission of those facts under F.R.E. 801(d) (2)(A). But it would surprise me were Novell's lawyers so careless.

In any event, I think the judge's use of the findings against Novell is a sufficient departure from the norm to need at least a footnote explaining the procedural posture that made reliance on the findings against Novell's interests appropriate. But I didn't see a relevant explanation when I read the opinion, albeit somewhat hurriedly.

[ Reply to This | # ]

Middleware is a creature of network operations
Authored by: hardmath on Monday, July 23 2012 @ 10:41 AM EDT

When one says that middleware "sits on top of an OS", one should clarify that by and large it is a networking OS that is relevant.

In the 90's Microsoft recognized the dominanance of Novell's LAN protocols in the customer base and did their usual trick of seeming to implement something compatible while rigging in gratuitous incompatibility to sway developers to the Microsoft way of doing things.

Even so Novell's Netware ruled in application support from the backend databases of Oracle to frontend multiplayers games such as Doom. To suggest that Novell (whose Netware protocols were running under DOS and Unixware, and who supplied compatible clients on Mac, Windows, and OS/2) could not mount a credible offering as to middleware is to forget who really had the upper hand on the LAN at the time.

If you are writing an application that does not use networked computers, then the point of middleware is moot. You'd almost as well build a monolithic "kitchen sink" application. Middleware comes into its own when sitting between the frontend presentation to a user on one computer and a backend server on another computer.

---
"Prolog is an efficient programming language because it is a very stupid theorem prover." -- Richard O'Keefe

[ Reply to This | # ]

His Billness: "...we will announce a better way to run Windows API on UNIX."
Authored by: tiger99 on Monday, July 23 2012 @ 11:09 AM EDT
I do believe that we are still waiting!

[ Reply to This | # ]

Motz is good at this
Authored by: Anonymous on Monday, July 23 2012 @ 02:16 PM EDT
He picks the arguments he wants to hear and denies the existence of any
arguments he does not. This is not the first time he has done this in the
trial. He just blindly denies the existence of any evidence that would hurt
Microsoft's case, even if that evidence is smack dab in front of his face.

[ Reply to This | # ]

The Jury doesn't have its head on straight
Authored by: Anonymous on Monday, July 23 2012 @ 03:46 PM EDT
Ouch. (Transcript p.5439)

[ Reply to This | # ]

Answer to P.J.'s question
Authored by: Anonymous on Monday, July 23 2012 @ 05:46 PM EDT
Do you see Novell conceding that Microsoft would be entitled to judgement as a matter of law if its definition was correct? If so, point it out, because I don't see it.
Apparently it's this:
MR. JOHNSON: ...I was talking about the definition they want you to instruct the jury on, the definition that they want you to instruct the jury on, which would be directing a verdict, by the way, and that's what it would be here --
If the definition would be sufficient to direct a verdict, then that must only be a matter of law. If it's a only matter of law, then it would be sufficient for a JMOL. Wouldn't that be true?

If that logic is wrong, I think the appeals court would quickly see the problem. I would hope that Judge Motz has enough experience that he wouldn't make a mistake like that.

[ Reply to This | # ]

WordPerfect vs. Netscape
Authored by: Anonymous on Monday, July 23 2012 @ 08:02 PM EDT
I don't see how paragraph 29 of the Findings of Fact would help Novell's case. Most of it would cut against Novell's argument. The only help might come from this sentence:
But to the extent the array of applications relying solely on middleware comes to satisfy all of a user's needs, the user will not care whether there exists a large number of other applications that are directly compatible with the underlying operating system.
That would seem to require a very broad group of APIs, but WordPerfect only offered a limited set. Netscape had a limited set of APIs, too, but things were a bit different in Netscape's case as paragraphs 69 and 70 pointed out. Paragraph 70 is probably the one most helpful to Netscape:
70. Adding to Navigator's potential to weaken the applications barrier to entry is the fact that the Internet has become both a major inducement for consumers to buy PCs for the first time and a major occupier of the time and attention of current PCs users. For any firm looking to turn its browser product into an applications platform such to rival Windows, the intense consumer interest in all things Internet-related is a great boon.
That was written in 1999 and it makes the point that people were buying computers just to connect to the Internet. The "array of applications" required to meet those users' needs wouldn't have been very broad. WordPerfect was targeted to the Office Productivity market, however. The "array of applications" required there may have been much broader. Perhaps Novell did show that customers wanted to buy Office-Productivity-Only PCs and the people making the purchasing decisions in those cases were unconcerned about having a broad variety of software available for those PCs, but it wasn't in the Findings of Fact as far as I know.

[ Reply to This | # ]

Motz is (again) getting the basic allegation wrong
Authored by: Anonymous on Monday, July 23 2012 @ 08:11 PM EDT
Novell is not claiming that WordPerfect would have become a
Windows-crushing middleware and Novell's failure to prove
that which they don't claim is irrelevant.

Novell is claiming the Microsoft *attempted* to protect its
OS monopoly by doing something *unjustified* which *happened
to harm* Novell's WordPerfect products.

It doesn't matter if the threat to Microsoft was real, only
that this was part of Microsoft's motive at the time. It is
not legally required that Microsoft's actions were directed
at Novell or otherwise malicious, that is just a bonus
argument. It does matter if Microsoft's actions delayed the
commercial release of WordPerfect for Windows 95 and cost
Novell money.

Novell is suing over criminal recklessness. It is similar
to suing an already convicted car thief for smashing your
fruit stand during the police chase. You don't need to
prove that he had a good reason to smash it, only that he
unlawfully smashed it as part of his crime.

[ Reply to This | # ]

middleware APIs
Authored by: darkonc on Wednesday, July 25 2012 @ 05:22 AM EDT
"[c]urrently, no middleware product exposes enough APIs to allow independent software vendors ("ISVs") profitably to write full-featured personal productivity applications that rely solely on . . . APIs [of the middleware product itself]."
This implies that examples of Middleware exist (with no knoen counter-examples) which do not expose enough APIs to allow full-featured productivity applications that rely solely on . . . APIs [of the middleware product itself].

That having been said, to accept the defendant's definition of a critical word in the plaintif's complaint and then throw out the case based on the new definition is like changing the rules of a game mid-play and then penalizing a player for not having followed a rule that didn't exist a few seconds ago.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

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