December 4, 1998 - Friday
3:08 PM PST - Microsoft is loosing track of what constitutes a defenses to antitrust charges.
All Microsoft can hope to do in court is ignore their own acts and defenses they may have and point fingers at other companies? Suggesting that Sun dropped development on their Java browser in favor of Netscape is hardly relevant at all. Yes. Sometimes companies do drop projects in favor of other products. But, dropping a browser development project when Microsoft is forcing all consumers to buy IE is a very logical choice to make. Does Micrsoft really think that all companies other than it should developer products and give them away while Microsoft can force all consumers to buy Microsoft products for money? Maybe they do.
Neither Sun nor Netscape is forcing all consumers to buy their browser and JVM. Microsoft is. And, that is why Microsoft is in court and not Sun or Netscape. Microsoft's lawyers need to take a hint. When you force all consumers to buy your products at monopoly prices, it is very likely you well be sued for violating the antitrust laws. And, suggesting that some other company should be investigated is not a defense.
Neither Sun nor Netscape (nor any other company) is doing anything to sabotage the Windows operating system. And no one is sabotaging IE either. (In fact the version of the browser for Windows does in fact require Windows just as any other application for Windows does.) Offering competitive products at competitive prices is not sabotage. But, deliberately designing an incompatible version of Java with the specific intent of fragmenting the market for Java products and attempting to continue to lock in the developers to a proprietary operating system (including a deviant JVM) certainly is. This is clearly Microsoft's intent despite they claims of just trying to write a better JVM. Better was only one goal here. The primary goal here was that it had to be different and it had to run only on Windows. Its primary objective was to sabotage the trademark of Java and the meaning of that trademark, "write once run everywhere". Yes. It even furthers the illegal objective the faster it is. Of course Microsoft tried to write a better JVM. A slower one would not accomplish their primary objective in the project.
Microsoft needs to begin to address their "acts" and their intentions in performing those acts. So far, they have ignored them hoping that no one will figured it out. Well. Everyone seems to know precisely why Microsoft did what it did. It all makes perfect sense. Gosling seems to know. Warren-Boulton seems to know. Just about everyone in the industry seems to know. Even the attorney for Microsoft know too. That is why when they speak, they talk in only general terms like "better products" and "faster products" and "innovative products". In fact, nothing that Microsoft has published so far is specific to Java or IE. Maybe Microsoft is talking about their Flight Simulator products? Bill Gates is confused about the Sun case. Maybe Microsoft does not understand which of their acts are being charged with violating the antitrust laws. Nothing they seem to say relates specifically to a browser or a JVM. They only seem to make general statments about product quality and vague references about consumer benefits. They do not even identify which customers they are talking about (I.E. the ones with Internet access or the ones without.).
Maybe the witnesses from Microsoft will enlighten us? (By the
way, nothing that the attorneys say inside the courtroom or out can be
considered as evidence. Not even their questions count as evidence.
Only the anwser provided by the witness counts.) We have already
seen that Bill Gates will never testify truthfully and completely.
That is very clear. We will have to wait to see what the other Microsoft
employees say. But, if they are as evasive, we will have no alternative
but to use the testimony of other witnesses who do demonstrate a knowledge
of the industry and the technology. And, of course, we have a few
e-mails which were not reviewed by antitrust counsel before being sent.
We even have a statement from Bill Gates himself threatening to "bundle"
IE with the OS (also before antitrust counsel was able to instruct him).
2:39 PM PST - Who is forced to purchase the so-called better Java from Microsoft?
Well. Just as with IE, Microsoft is forcing all consumers to buy the fragmented version of Java. That is the JVM that is bundled with the OS.
So not only are all consumers forced by Microsoft to buy the Microsoft brand of browsers but all consumers are also forced to buy the Java Virtual Machine from Microsoft. And, the court in San Jose has already decided that it is likely that the version from Microsoft violates the license.
Is Microsoft also claiming to be selling its version of Java for nothing? And, if and when they develop a "clean room" version to avoid license violations, they too will force all consumers to buy that as well? And at what cost? Just how much is Microsoft going to increase the cost of its products to cover that development?
Microsoft needs to answer some very serious questions. Just how much is Microsoft software being raised to cover these products? The economist, Warren-Boulton has already testified that Microsoft is charging prices that are too high. If Microsoft further expands its R&D on Java, that price could only increase.
It is a forced sale. The only question is the price. And so far Microsoft is avoiding telling anyone how much they charge everyone for those products. Microsoft's attorney waste no words telling all consumers what a great product it is, but absolutely refuse to disclose the price.
1:00 PM PST - Designing a "high quality" bomb is not a defense.
There seems to be an over emphasis on the quality of the work done by Microsoft with Java. The quality of the work is not really the issue. The intent of Microsoft is the issue. Microsoft has clearly intended to fragment the Java market by designing and forcing the sale of a incompatible version. Even if the Microsoft version of Java were perfect, it does not excuse antitrust violations.
Indeed Microsoft did attempt to develop as good a version of Java as they could. Why not? Of course they would do so. However, if their intent was to fragment the industry forming around Java and to degrade or lessen value of the Java trademark and market, it is none the less illegal.
If Microsoft really is run by a bunch of bumbling idiots, then that might be a defense. (Maybe this is why Bill Gates is acting up like he is.) But, their own e-mail and comments prove otherwise. Comments coming directly from Microsoft prove that their intent was to fragment the Java market and prevent Java from gaining momentum in the marketplace and prevent Java from being "write once run anywhere".
Suggesting that if Microsoft did a good good at it. Or, even suggesting that if Microsoft's version of Java is better on Windows than a common variety might be is to suggest that bombing and terrorism is okay if you use high quality explosives. It is the intent that is important.
Microsoft can claim that they only intended to write good stuff, but evidence proves otherwise.
Try as Microsoft may, nothing makes more sense than a concerted effort to fragment the Java market and prevent it from being a universal environment and further attract developers away from providing Windows only applications. The desire of Microsoft to convert Java into a Windows only solution is about as obvious as it gets in this business.
For Microsoft to suggest it is only trying to deliver products to customers
is a bit transparent. That argument would apply to all products offered
by all companies everywhere. It would be bad law to suggest that
it defends obvious and blatant antitrust violations. (Hint: one court has
already decided that Microsoft acts are likely to have violated their license
agreement in regard to Java.)
9:30 AM PST - Microsoft's defense, "We had to kill the baby, it was going to be a normal child."
Microsoft is clearly without any legal defense for its actions in regard to Java. Their attempts are both illogical and unrealistic.
Being faced with the possible threat from Java, Microsoft could have easily down one of three things.
1. Nothing (just ignore Java) - No antitrust violations in that.
2. License Java and write a 100% compatible JVM and development system
- This is what the license suggested.
3. Develop an incompatible Java and force the sale of that product
upon all personal computers.
Microsoft chose #3.
The only question is why?
Microsoft's suggested defense that they had to write an incompatible version because the regular one had problems lacks logic. If Java was just normal then they could just let it be normal. They almost hint at this in court by suggesting that pure Java has problems. Well. Assume it does. So what? It is to the benefit of Microsoft if Java does not work so well. Certainly, this possibility does not provide any rationalization for the act by Microsoft to sabotage the Java development environment by forcing the sale of incompatible JVMs and development tools that run only on Windows. Their observation that pure Java does not run everywhere is really a stupid one. Microsoft's version of Java runs only on Windows. It does not run at all on any other platforms. Their logic in this regard is out of whack.
The only logical reasoning for Microsoft doing what it did was to fragment the Java development system. They obviously felt they were loosing their death grip on the minds of developers. Developers loved the Java language and the idea of opening up all platforms (not just Microsoft machines) to their products. This is what Microsoft feared. The loss of their monopoly power. Not the ability to sell competitive operating systems. That would remain despite Java. But, Microsoft obviously feared loosing their monopoly power (see earlier discussions on the "network effect" and "tipping"). This thinking obviously engaged in by Microsoft and Bill Gates in particular makes sense. It is illegal. But, it does make sense.
Suggesting that the baby had to be killed because it is only a normal child is neither justified nor logical.
"Microsoft customers must be able to access all functions offered by Windows." They do?
The other possible explanation for Microsoft's effort to sabotage Java is also illogical. Why should Java applications running on Windows be required to access special and unique functions made available by Windows? This is one of their suggested rationalizations for sabotaging Java. But, this is also a false one. C++ and Pascal (Delphi) both provide full access to all functions provided by Windows. If an application requires a special function unavailable from a Java application, then those languages can be used to develop the application. It is even illogical for Microsoft to think that Java should have to do this. Remember, Microsoft does not like Java. It would be in Microsoft's interest that Java applications be at a disadvantage when running on Windows. Not? If Java is as bad as Microsoft now wants to suggest in court (although questions from their attorneys are not evidence), then so called "real" applications written with C++ and Pascal would be used instead of Java. It is illogical to conclude that Microsoft wanted Java to be able to access all functionality of the OS.
Again, the only thought process that makes sense coming from Microsoft is that they want to fracture the Java market and they could do so by writing their version so that it is different and will therefore only run on Windows. Microsoft wanted very dearly to guarantee that "write once run everywhere" would fail. They do guarantee that failure with their version of the JVM and development tools. The act of fracturing Java is intentional and it is done for the purpose of sabotaging the property of another company.
The two suggestions offered by Microsoft are both illogical and unrealistic. The suggestion by Mr. Gosling that Microsoft only sought to fragment the Java market in the hope of destroying the property of Sun is not only logical but also very realistic. The only problem is that Microsoft's attorneys know that the explanation for their acts implicates Microsoft. The true intention of Microsoft and the acts performed by Microsoft violate the antitrust laws. Those acts are directed at the property of another company with the intent to destroy that property or destroy the value of that property in the marketplace.
Continue to watch the dance of Microsoft around their illegal acts. Alternative thought processes just do not make sense and lack logic. Even Microsoft's attorney contradict themselves as they try to come up with alternate explanations for the illegal acts of Microsoft.
Microsoft is only trying to come up with a legal explanation for an illegal act. (Hint: There isn't one.)
December 3, 1998 - Thursday
4:50 PM PST - Microsoft Java is better than Sun Java?
Legally it does not matter one way or the other. Does Microsoft view Java as a threat or not? Again. Does not really matter.
What matters is what acts Microsoft took and why they took them. If Microsoft thought that Java was a threat, then adopting a business plan to prevent a competitor from being successful would clearly violate the antitrust laws. If Microsoft did not consider Java a threat it might have just ignored it.
But, why write a better Java if not to attempt to sabotage it? Why force the sale of IE and Microsoft's JVM upon everyone? Why make consumers pay money for unwanted products?
Using a computer program to blow up a building is not legal just because it is good code or faster. And breaching a contract is not excused simply because you breach it with vigor. This seems to be Microsoft's argument here. "But our incompatible Java is really a good version and developers should be able to buy it even if it violates federal laws." (Federal laws here include copyright law, trademark law and antitrust law not to mention State's laws against unfair competition.)
Does Microsoft really think that laws can be violated if the code is good?
Does Microsoft think that pirates can duplicate their products illegally and sell them if the quality of the duplication is high? Just what are they arguing when Microsoft claims a defense by referencing quality work? Or, choice for consumers? Does Microsoft think that consumer should have a choice of buying a bogus copy of Windows? No. They do not. So choice is not choice. And, when Microsoft says "choice", if they only mean the Microsoft choice, then they are misspeaking. They are not saying what they mean.
When Microsoft claims a right to sell their bogus copy of Java they are not talking about the same concept of choice at all. They are only speaking of Microsoft's right to sell products without regard to any laws. And, if they are going to do that, then let's see them argue for the right of counterfeiters to sell their "excellent " copies of Windows. (Counterfeiting of software was in the news today too.)
When Microsoft speaks you have to ask what it is that they are really
saying. For a company that forces 100% of all PC consumers (including
Apple) to buy IE and an incompatible JVM for Java, they really need
to speak a bit more clearly. They need to identify just how much
they are charging for IE and their JVM. And, they need to define
what they mean by "choice". Perhaps they only mean Microsoft's
choice to sell what ever they want at what ever price they want without
abiding by any laws. Is that what they mean?
1:30 PM PST - Does Microsoft really think it has some basic right to sabotage Java?
Possible flaws in a truly compatible version of Java does not justify Microsoft trying to sabotage it. If Java does not work well, then Microsoft should not have to do anything. Indeed it would not need to do anything. But, Microsoft was proactive in fragmenting Java. "Proactive" is even too weak a word. They not only designed and developed J++ but also have forced all consumers to buy the bogus version of their JVM. This may now have been cut back a bit with the court issued injunction, but Microsoft deserves absolutely no credit for only doing what a court order requires them to do.
I guess Microsoft thinks that somehow it has a legal right to make Java use all of the features of their specific operating system. That may be okay for the C++ or Pascal languages. But, the Java trademark clearly implies that it runs on many platforms. Despite memory losses, Microsoft knows what the Java trademark means. And, they have deliberately set out to license the technology and write a disparate version so as to sabotage the trademark itself. This is very clear. Even suggesting a possible "clean room" version further disclosed their true plans and intentions.
Microsoft has expressed no intention except to be incompatible with a common Java solution.
Mouthing off about customer choices, better products, optimizing for windows, lower prices and Java problems are just cover stories. Microsoft obvious intention is to prevent any cross platform concept from working to the benefit of is consumers because it might reduce the raw monopoly power of Microsoft to charge higher prices and force the sale of Microsoft products.
Acting in this manner (by first licensing the technology) is fraudulent.
You have to compare comments coming from HP about the reliability of NT. When asked, they say they are working with Microsoft on the problem. And, I assume they are. But, when Microsoft licenses technologies from other companies, they only seek to sabotage the value of the technology itself.
Look at what Microsoft is suggesting by the very questions they pose
to Gosling. They almost all attempt to justify harmful acts conducted
by Microsoft against other companies. They are not legal justifications,
just rationalizations. But, everything Microsoft does is designed
to harm directly competing companies (Sun and Netscape to mention two).
Hint: Developing software within a license agreement and at fair and competitive
prices is okay. Breaching a license agreement with the intent to
harm the property of another company or force a zero price for an unbundled
product, is not. Those acts are illegal.
12:50 PM PST - And what is this story about a possible "clean room" version of Java from Microsoft?
Think for a moment. Why would Microsoft want to develop a clean room version of Java? Well "clean room" versions are usually written to avoid copyright violations. But, how would that affect antitrust violations? Most likely not at all. (Although Microsoft has hinted that it will argue that the Federal Copyright laws give it an absolute right to bundled any thing together that it might want. The copyright laws provide no such right, but Microsoft will argue it anyway even if mainly on appeal.)
But, back to a clean room version of Java. Would their "clean room" version run everywhere? Oh, absolutely not. "Windows only" for sure. Such a version would not be directly associated with the license agreement. So, contract law would not stop them. What about "unfair competition" (also mentioned in the preliminary injunction)? Well. As with antitrust law, almost any act can violate the "unfair competition" laws of the various States.
But, what does the hint from Microsoft about a "clean room" version really say about Microsoft?
It says, they are still thinking up ways to sabotage Java. If they want to write a compatible version of Java, they have the license to do that. If they wanted to optimize a compatible version for windows they can do that too. No new agreements required. But, they are still thinking of just what all they can do to sabotage Java. They want very desperately to prevent developers from gaining any freedom from Windows only platforms. They want very desperately to preclude any run time system from offering any competition at all with Windows. And, they want to make certain that consumers do not have any alternatives but to buy only Microsoft products.
C++ and Pascal (Delphi) provide excellent capabilities for Windows applications. So. The Microsoft platforms just do not need any new development systems. They already have excellent ones. The only reason Microsoft would offer a Java alternative would be to prevent Java from being a cross platform system. Everyone still needs to buy a OS even with Java. But, with Java all consumers would not be forced to buy from Microsoft.
You know. After awhile, it becomes very clear what Microsoft is
up to and why. I guess we just do not need Bill Gates to testify
after all.
12:01 PM PST - Microsoft is lacking a defense for their Java conduct.
Microsoft appears to think that if it can show that Java has a hard time delivering a "write once run anywhere" concept to the marketplace that Microsoft is somehow excused for using its monopoly power to sabotage Java. This is equivalent to suggesting that shooting a terminally ill cancer patient is justifiable homicide. It is not. (I was not quoting Mr. Boies when I wrote this. But, it is apparent that the same or similar thought occurred to him today.)
Microsoft has clearly done everything in its power to prevent any "write once run anywhere" solutions from working in the industry. Look at its specific acts to further this objective.
1. License the technology and develop an incompatible version.
2. License the technology and re-design it so that it runs only
on Windows platforms.
3. Bundle IE with the OS to force all consumers to have the incompatible
version.
4. Leave out key components of the licensed Java in their own
JVM so that Java written to the common standard fail on Microsoft platforms.
5. Add in proprietary technology so that Java applications written
on Windows can not run anywhere else.
6. License the Java technology then breach the license agreement
(preliminary injunction says this is likely to be the final result)
7. License the Java logo then act in such a way as to sabotage
the very meaning of the trademark itself (again, a preliminary injunction
says this is likely to be the final result)
8. Instruct witnesses to appear to not understand anything about
the industry they are in.
9. Disparage products not sold by Microsoft (Microsoft
suggests Java does not work).
Of course it is difficult for Sun to distribute a "write once run anywhere" concept. That goes without saying. But, this is no way is relevant to the defense of Microsoft's antitrust violations. It is simply not relevant. Does Microsoft really think that it is okay to push a sick person over a cliff? Does Microsoft really think it is okay to write in incompatible version of Java just because a "write once run anywhere" product is difficult to deliver? No. They do not think that at all.
Microsoft is only interested in deflecting the bad implications of their illegal acts. They want the public (and the court) to think that they are just some innocent programmers trying to write better applications. Nothing if further from the truth.
Microsoft has clearly attempted to sabotage Java and prevent it from reducing the dependency of consumers upon products sold exclusively by Microsoft. The false argument offered by Microsoft that they had to do this because Java was slow is just that, a false argument. If Java was too slow, it would not be a threat to Windows at all. If Java did not run everywhere, it would not be a threat to Windows at all.
The fact is that Java does not obsolete any operating system. If anything, it only reduces the dependency of developers and consumers upon a specific operating system. It only reduces the "monopoly power" of windows. It does not replace it nor does it eliminate the need for an operating system.
This is a classic example of a monopolist conducting its business in such a way to preclude competition and increase its monopoly power over competitors and consumers. Microsoft has even forced consumers to purchase IE and its incompatible Java concept. At what price, we have yet to find out. But, as Warren-Boulton has testified, it is likely to be at a monopolistic price. What is being illustrated here by the testimony from Mr. Warren-Boulton and Gosling is how a monopolist strengthens monopoly power and at the same time over-charges for products (some of which are not even desired by the consumer).
And, so far, all Microsoft can argue is that Java has some technical problems it needs to work out? That is not even relevant to the conduct of Microsoft.
10:02 AM PST - An interesting perspective from another attorney, Rich Gray.
[I do try to make references to other commentary on this litigation. Richard Gray, a practicing attorney, prepares a special daily column for the San Jose Mercury News. His columns are worth reading.
By the way, I will publish on this web site almost any article submitted by the author regardless of viewpoint or perspective. See the DOJ Trial Outline. I am particularly interested in an open discussion of the possible remedies should the court decide that some action is required. ]
9:43 AM PST - Bill Gates only admits what everyone seems to know. (I wonder if he will admit to having a monopoly?)
Does everyone know that Java is a threat to Windows? Perhaps if Bill Gates admits that, it is common knowledge.
The question is not so much whether Java is a real threat or just a potential threat. What is important in antitrust law is what actions Microsoft took in response to that threat (however they perceived it).
Microsoft could have developed its own cross-platform concept (similar to Java but under its own brand).
Microsoft could have written a better faster JVM for windows so that Java on Windows platforms ran the best it could but remained compatible with Java running on other platforms as well.
Or, it could do precisely what it did choose to do. Microsoft could try to change Java sufficiently so that it no longer is cross platform at all. This would be a deliberate attempt to either "steal" the property of another company or simply sabotage it by offering incompatible versions when the Java trademark itself connotes a "write once run anywhere" concept. This is sabotage.
What is interesting in this regard is that if Java on Microsoft platforms is supposed to be just another development environment for Windows, the industry does not need it. Anyone can already write Windows applications using C++ or Pascal development systems from a number of vendors. So, suggesting that somehow Java must be offered as a "Windows only" alternative is a false conclusion. Windows just does not need another development environment for Windows only applications. Java was intended from day one to have cross platform capabilities. Microsoft knew that then and knows it now. Their acts are clearly intended only to sabotage that concept in an attempt to keep applications dependent upon Windows platforms. No other conclusion makes any sense.
When the Microsoft lawyers present their PR pitches they talk about the proper goals of a competitive company. But, adopting a business plan that sabotages the property of another company or attempts to eliminate a method of distribution for a competitor is not what those attorneys are talking about. They ignore the illegal acts of Microsoft when they speak. They ignore the acts of Microsoft not addressed at developing better products at lower prices (a claim that is not even true in their case) but rather addressed to prevent competitors from being able to develop and market their products.
This is key in antitrust litigation. If the conduct of Microsoft is directed at competitors in an attempt to reduce the value of their property or preclude them from selling products, it is almost always illegitimate. It is similar to wrapping a chain around the glass office doors so their employees can not report to work.
The question you need to ask is whether the acts of Microsoft were directed at destroying the ability of a competitor to succeed or were they only offering competitive products. Licensing Java as Microsoft has done and then proceeding to sabotage the Java market by intentionally creating an incompatible version is simply a direct attack on Sun. That act does not offer a product for purchase to consumers. It only diminishes the value of a competing technology by fragmenting the market and attempting to prevent "write once run anywhere" from being realized.
Is it possible for Bill Gates and his company to not understand the impact of their product designs?
Is it possible for Bill Gates and his attorneys to not have discussed the antitrust implications of forcing a disparate version of Java on the market (and forcing all consumers to purchase it)?
Is it possible for the upcoming witnesses from Microsoft (mostly employees) to testify that their intent was to harm Sun and to do so by forcing all their customers to buy and install incompatible software?
Personally, I doubt it. In fact, I find anyone who suggests a positive answer to the either of the above questions to totally lacking in credibility. Either they do not understand the computer industry at all or they are highly influenced by financial ties to Microsoft (and therefore just hoping their financial interests will be served if someone buys their line of thought).
The credibility of witnesses is very important. When highly qualified witnesses (I.E. Bill Gates) come across as evasive and forgetful you can bet that they have been instructed by their attorneys that they are in serious trouble.
Look for the difference between witnesses who try very hard to explain
what they know about the industry and the technology and those who do not.
For example, Frederick R. Warren-Boulton had absolutely no problem explaining
why it is so important to Microsoft to force the sale of IE and preclude
Netscape from selling any products. And, then you have Bill
Gates claiming to not understand simple everyday words. (Is
he hiding something, do you think?)
December 2, 1998 - Wednesday
8:30 PM PST - Microsoft does seem to lack any real legal defense.
On the court house steps the lawyers for Microsoft continue to express there effort to compete fairly and vigorously by offering better products at cheaper prices. This is fine. The lawyers can say so if they wish. But, conducting a number of legal activities offers absolutely no defense for an illegal one. And having an innocent explanation for an act does not excuse the more sinister motives made so obvious by Microsoft in its approach to Java. (Dear Bill: If you deem Java is a threat, the correct legal response is to write a better cross platform system not sabotage the intellectual property of others.)
Signing a license agreement with Sun and then doing everything it can to sabotage that technology belies the true intent of Microsoft. Microsoft itself has even expressed their intent to invalidate the "write once run anywhere" concept which is at the very basis of the Java logo and technology. No other conclusion can be drawn but that Microsoft intended to sabotage the property and technology deemed by Microsoft to offer a non-proprietary alternative to a captive platform.
If Microsoft actually did what its lawyers are claiming on the court
house steps they would offer their own cross platform solution. That
would be competing with Java fairly. They could do that. They
could write better technology than Java and sell it at a competitive price
on all platforms too. But, as James Gosling has testified they
did not do as their lawyers claim. Rather they licensed technology
from another company then proceeded to alter the product so as to "sabotage"
(or invalidate if you insist) that very technology by attempting to force
or fracture the technology so that "write once run anywhere" could not
exist. "Sabotage" is the correct word here. Not the correct
legal term. But the correct descriptive term.
12:20 AM PST - Again, the scheming Bill Gates seems to not understand much.
The video clips of the Bill Gates deposition is what gives Microsoft its label of being an "evil empire". While Bill Gates acts dumb, Microsoft continues to force the sale of unwanted and unneeded applications upon 100% of their own customers (and Apple customers too).
Forcing consumers to buy products truly qualifies as evil. Being evasive and acting dumb in depositions makes those acts violating antitrust law even more sinister. Call this what you wish. But, when a corporation uses monopoly power to force the sale of unwanted products and then acts evasively and dumbfounded in court, most courts discredit that testimony completely.
Just about everyone in the industry knows full well why Microsoft distributes a bogus copy of its Java. Bill Gates knows too. Bill Gates planned the whole thing. In all likelihood he was even in consultation with antitrust lawyers when the plans were laid down. (If not, he certainly should have been.) "This is illegal but if you claim you are only making it better, you might get away with it", must have been the advice. Conversations between Bill Gates and his lawyers are not subject to discovery. They can legally be kept as secrets. That is just the way it is. But, it does not take any imagination at all to suspect what was discussed as Microsoft laid down it plans for Java. And it is unthinkable that Microsoft would not consult antitrust lawyers before making major plans to sabotage competing technologies.
Microsoft does continue its corporate policy of disparaging a competitors product at every opportunity. Today their attorney suggest that Java has a few problems with its "write once run anywhere" idea. Funny that Microsoft or anyone who works for them should even understand that. It is a difficult concept to implement. But, far and away the biggest problem facing Java is Microsoft's willingness to even violate the law to prevent it from taking hold in the industry. Microsoft has illustrated its willingness to license the product then breach the very license agreement it signed. (preliminary injunctions only suggest the breach of contract is likely). This is becoming typical Microsoft behavior. "Sign an agreement and then do everything you can to sabotage the value of the deal for the other party". (I.E. consent decree and Java License) And, if you get caught suggest that defective technology offered by everyone else is the only problem. Microsoft disparaged OS/2 as part of their promotional efforts. Microsoft continues to disparage Java as part of their promotional (and legal defense) efforts.
The fact that a "write once run anywhere" technology is difficult is just not relevant at all in this case. Microsoft lawyers are only interested in disparaging the product of another company under the guise of a legal argument. It is not a legal argument at all. Microsoft is still trying to blame the victim of their illegal acts for having suffered as a direct result of Microsoft's acts. This is an incredible suggestion coming from an attorney. Maybe it is just a sign that the lawyers for Microsoft do not think they have any legal defense at all. (Or, if you have an opportunity to disparage the product of a competitor, "take advantage of it". This does appear to be Microsoft corporate policy.)
Perhaps they are hoping that if consumers believe that Java will not run everywhere that somehow that justifies Microsoft trying to force the Java technology to be a "Windows only" technology? This is called rationalizing "sabotage". "It is okay to blow up the bus if the engine is not running smoothly." "It is okay to violate copyright law if you know how to fix the code." "It is okay to violate the law provided you offer something of value to the public." "It is okay to breach the Java License agreement provided you improve it?" "It is okay to sabotage the write-once-run-anywhere trademark if you make Java run faster on only your operating systems."
These suggestions by Microsoft are offered only for their PR effect
and to rationalize their violations of law. They are not legal defenses
nor do they justify violations of any laws or breach of any contract.
11:43 AM PST - More products forced upon the consumer by Microsoft regardless of their needs.
The direct testimony offered by James Cosling is very significant.
The testimony clearly points out that Microsoft not only forces all consumers to buy IE regardless of their actual needs (and at a hidden unknown cost ) but Microsoft also forces all consumers to buy Microsoft's Java Virtual Machine (JVM). This is the product now subject to the injunction issued against Microsoft in the Sun litigation.
So. Who is paying for the R&D of a product know deemed to be in likely violation of the law? Microsoft. And why are they forcing the sale of their bogus JVM? The answer is simple and obvious (even if Bill Gates forgot). Wide forced distribution of the incompatible JVM sabotages Java, a application language and environment. Java is not even an operating system. But, Microsoft is doing everything it can think of to prevent that technology from having a place in the industry.
Oh. You say, "Microsoft has announced that they will comply with the injunction?". Well, they might do some things. But, Microsoft only does what a court order says they absolutely must do. And, then only if they can not figure out a way to weasel out of it like they have with the last agreement they made with the court (I.E. the consent decree).
But, Microsoft is persistent. They will continue to develop and support a disparate version of Java restricted only by court order. They have even suggested that they would spend unlimited amounts of R&D to develop a so-called "clean room" version of Java and force all consumers to buy that as well.
So. How much are consumers going to be forced to pay for the Java support from Microsoft (whether they want it or not)? Well. Maybe if Microsoft would tell their own customers how much they are charging for IE, they could then go on and explain how much R&D will be required to skirt around the licensed technology from Sun.
Microsoft will force all consumers to fund their R&D on the JVM. Their JVM also forces developers (see James Cosling direct testimony) to buy tools from Microsoft as well.
One monopoly forces another and another and another.
This is precisely the kind of conduct which violates the antitrust laws.
Microsoft uses its monopoly power to prevent competing technologies from minimizing the power of the monopoly itself and precluding competition from other superior operating systems and technologies. And, it does so while forcing consumers to buy unneeded and unwanted products.
This is the most egregious violation of antitrust law in the history of these laws. (see articles on Billions and Billions in harm to consumers)
Need other opinions?
10:10 AM PST - Java creator begins testimony
Almost any act can violate antitrust laws.
The testimony from James Gosling highlights acts intended by Microsoft to preclude highly innovative technologies from other companies in the industry. These acts include:
1. License Java from Sun with the intent to fracture the technology.
2. License the Java Logo with the intent to sabotage the very meaning
of the trademark.
3. License Java with the intent to destroy its cross-platform value.
4. License Java with the intent to fracture the skills of Java Developers
Microsoft is going to claim that it is only trying to write a better Java. That may be their technical task. But, their incentive for doing so violates antitrust law, contract law, trademark law, copyright law and laws against unfair competition. The injunctions against Microsoft regarding Java even suggest illegal acts have been performed by Microsoft in furthering this effort.
Microsoft is fooling no one on this issue. Everyone in the industry knows and understands that Microsoft wants to prevent Java from being successful and from being a possible competitor to Windows. Java is not even an operating system. It only serves to reduce the dependence of applications upon specific operating systems. In other words, it reduces the monopoly power that Microsoft enjoys. And, this is why they are trying so hard to sabotage it.
If developers are no longer bound to write applications that run only on Microsoft systems then Microsoft loses its monopoly power. The only reason Microsoft would fracture the Java community is to preserve its monopoly power. If it just wanted Java applications to run faster on Windows platforms, it could easily do that without breaching the license agreement and without fracturing the Java community.
This is precisely the kind of activity the antitrust laws are designed to prevent. Those laws are designed to prevent holders of monopoly power from using that power to strengthen the monopoly itself. This is precisely what Microsoft is doing and it is precisely why they are doing it. Statements from Microsoft employees point this out directly. Previous testimony even points out that Microsoft has done everything it can to get other companies to further destroy the cross platform capability of Java.
Microsoft has done everything it can think of to destroy the cross platform capability of Java. They have not offered their own "cross-platform" technology. But, rather they act (even under license) to destroy the value of competitor's technologies. Technologies so innovative that they dwarf everything that Microsoft has ever offered to the industry. Their acts in regard to Java is proof that Microsoft suppresses innovative technology even if it means violating terms of their own contracts and licenses. They do so even if their acts violate the law directly (i.e. contract law, trademark law, copyright law, unfair competition law and antitrust law). No company needs competitors when you have partners like Microsoft.
The suggestion by Microsoft that they are innocently designing a better
Java is equivalent to a "high quality pistol" defense for a murder wrap.
It is the intent of the act that counts, not the quality of the pistol.
December 1, 1998 - Tuesday
5:00 PM PST - Direct testimony from James Gosling released.
James Gosling, a Sun Microsystems Inc. Vice President and creator of the Java language is the next witness to be called by the DOJ. The San Jose Mercury news version of this testimony is available as well as his full testimony.
Microsoft is being accused of "neutralizing", "polluting" or "sabotaging" Java. In the Sun vs. Microsoft litigation, Microsoft is already subject to two separate injunctions for their acts.
The key point of this testimony will be 1) the current injunctions issued against Microsoft for their acts (the Judge will just take judicial notice of these orders) 2) the affect of those acts to further, extend and protect the monopoly power of Microsoft in the consumer OS market.
Microsoft will counter that it was only trying to improve Java. However, the two court orders demonstrate that Microsoft's acts also appear to violate the terms of their license. This rightly characterizes those acts as illegal acts.
What is absolutely clear is that Microsoft has considered Java as a threat to the dependence of users upon Microsoft platforms. Java does not offer an OS. Java even with a browser is not an OS. But, if Java were successful, the dependence of all consumers upon proprietary operating systems from Microsoft could be significantly reduced.
Microsoft has done everything it can to keep customers dependent upon Microsoft products. Otherwise, they loose their monopoly power. If Microsoft looses its monopoly power, then it can not longer overcharge for products or freely bundled applications to keep the price high. (Being able to bundle IE with the OS and still force the sale to all consumers is very powerful proof of monopoly power.)
One of the primary reasons that the antitrust laws prohibit acts in furtherance of a monopoly is simply because competition should be able to re-surface and play a role. If companies holding monopolies are not restricted in some way that will just not happen.
What Microsoft has tried to do with Java clearly illustrates that concept. License the product, then change it in some way to defeat the basic benefit that the product offers. "Sabotage" is not too strong a word should Microsoft be successful in fragmenting the Java technology so much as to defeat its very purpose.
2:00 PM PST - Microsoft accuses the government of lying? Those are Microsoft's documents.
Microsoft claims that IE is a free product and they argue that the government is lying by interpreting a Microsoft memo?
Microsoft is presenting the false testimony in this case.
Look at the discussion of this dispute.
Microsoft admits to increasing the cost of windows as "features" are added. I guess going from only DOS to DOS with Windows is adding features. It is adding a User Interface (a GUI). And, yes that is increasing the absolute price.
Just what does Microsoft think the browser is? It is just another user interface (another GUI). So in one breath of air Microsoft admits to raising the price of windows by adding one GUI (windows) but denies raising the price of windows by adding (bundling) yet another GUI (IE)? And to think that Microsoft spend hundreds of millions in R&D for IE.
IE is not a free product. Microsoft is charging real money for IE. (How many times do I have to ask the question, "How much is Microsoft charging for IE?") IE is not free. Microsoft clearly admits to charging a higher and higher price as features and applications are bundled with the basic operating system. Even Steve Ballmer has said very plainly that they do not give away software.
Maybe when the Microsoft witnesses get on the stand they can testify as to just how much consumers are being charged for IE. They could lie about it and say it is "free". They could lie about it and claim the price was not raised to cover the R&D for IE. In PR releases and advertisements Microsoft can pretty much say what ever they think the consumer will accept. And in SEC filings they can pretty much say what the stockholders will accept. But, in court, you are under oath. If you lie about the price of IE in court, you may commit perjury. If you lie about the R&D dollars spent on developing IE, you may commit perjury. And, if Microsoft lies about charging more for Windows as features and applications are bundled with it, that too might be perjury. Their own documents suggest just what everyone already knows: Microsoft raises the price to cover added features. Or, the price of windows has been kept high and perhaps even increased by bundling additional applications and utilities.
The problem is that no one really believes that IE is free. It is only "not priced separately". When you buy an OS from Microsoft (or Apple) you also must buy IE regardless of your particular needs or application requirements. The monopoly power (that everyone from Microsoft claims to not understand) gives them that ability. Bill Gates said so as far back as 1994. He said very plainly that Microsoft would just bundle the browser with the OS and force the sale upon everyone. Nothing then was said about the price. There was no need to mention price. He did use the "bundle" word.
Monopolist can set the price they want, and Bill Gates knows that. (he has appeared to forgotten everything he ever knew about the computer software industry once he started to collect money for Windows 98 and the DOJ filed suit for antitrust violations). The testimony from Frederick R. Warren-Boulton is right on the issues of this case:
1. Microsoft has monopoly power.
2. Microsoft uses that power to set prices.
3. Microsoft uses that power to preclude competition in the consumer
OS marketplace.
4. Microsoft knows and understands that any technology reducing
the dependency of consumers upon Microsoft operating systems weakens their
monopolistic power over consumers.
5. Microsoft uses their monopoly power to suppress innovation and
force the sale of unwanted products upon consumers.
6. Microsoft uses their monopoly power to keep the minimum price
paid by all consumers at an extraordinarily high level.
10:30 AM PST
The cross examination of Frederick R. Warren-Boulton continues. He is an expert witness. An economist. But, what is interesting about his testimony is his clear and accurate understanding of the reasons why Microsoft bundled IE with the OS and how that relates to antitrust law.
Microsoft and their attorneys know all about this too. They are just acting stupid and forgetful in the hope that consumers do not figure out what Microsoft is up to.
Take a look at some of the replies by Mr. Warren-Boulton.
His testimony suggests that Microsoft is not so much interested in a revenue stream from controlling the desktop and forcing all consumers to purchase, install and maintain IE (regardless of their needs for such an application) as they are in precluding the possibility of any possible competition.
Microsoft has clearly decided that the Netscape browser and Java (or both working together) are a threat to their monopoly in consumer operating systems. Neither the browser nor Java (together or alone) are an operating system so each consumer will still have to buy one. And, presumably it would still be Windows. But, the browser and java reduce the reliance and the dependency of applications upon the specific operating system. In other words, the raw monopoly power of windows is reduced by the availability of an alternate browser and Java (working together or apart). The concept of "write once and run everywhere" is a threat to the dependency of applications upon a specific operating system.
So. Microsoft is clearly using its monopoly power to remove competitors in other markets (non operating system products) so that their raw monopoly power is maintained. Even if Microsoft was selling IE on the cheap, this could be accomplished if they can force the sale to everyone. (But, Microsoft can use its monopoly power to force the sale of IE at higher than competitive prices. Also see testimony from Mr. Warren-Boulton.)
Gosh. Even an economist, Frederick R. Warren-Boulton can see that. Of course, he has also testified as to the power of the "network effect" and "tipping" and how that affects the ability of any company to compete with Microsoft in the consumer OS marketplace. It does seem strange that an economists understands the realities of the consumer OS market better than Bill Gates himself. (Bill Gates should be forced to testify as an expert witness on these matters. Expert witnesses can not avoid questions in the area of their expertise and just play dumb because they do not like their own answer.)
What Microsoft is doing (and trying to cover up by playing dumb) is trying to increase the dependency upon their operating systems by directly preventing alternative technologies from having a marketplace. This is not only obvious on their part, but also illegal. And, Microsoft knows this. For this reason they have decided upon a PR campaign claiming their own right to innovate (while they conduct acts directed at precluding the innovative products of other companies), a PR campaign suggesting that antitrust laws are not necessary (i.e. Microsoft should not be bound by any law and should be able to do what ever it wants to do when it wants to do it) and of course, false testimony (Bill Gates acting like a forgetful dufus).
Why is that Microsoft (including all of its witnesses, employees and attorneys) seems to think that the only reason anyone buys a Microsoft product is because it is a better program and innovative? Do they really think that voters fully support a candidate when only one name is one the ballot? No. They do not.
Does Microsoft really think that 100% of the consumers are buying IE because it is "better"? Microsoft knows they are forcing all consumers to purchase IE. They know that for a "fact".
Does Microsoft really think that even those consumers who do not have modems buy IE because it is a "better internet browser"? No, they do not. Microsoft knows exactly what it is doing and it knows it can force all consumers to purchase IE. And, they know that forcing all consumers to buy IE will further and strengthen their monopoly power.
Even the economist, Frederick R. Warren-Boulton knows that.
Microsoft knows that too. And, that is why they advertise that antitrust laws are not needed in their industry. Microsoft knows that they have clearly violated the antitrust laws and their only hope is to get the laws changed so that they can continue to abuse consumers and potential competitors. Nothing can be more clear. Why else would Microsoft Corporation place advertisements suggesting we do not need such laws?
But, does all this mean that IE is a free product? No. It does not. Mr. Warren-Boulton testified that Microsoft is over-charging for the OS. It has done this by either just arbitrarily keeping the price high (or higher) and bundling IE to preclude competitors OR by simply bundling both the OS and IE and setting the price to cover both. But, the end result is too high a price for consumers. The result is a higher price than would result if Microsoft had normal competition.
The suggestion that Microsoft is not only forcing the sale of an over-priced browser (IE) but also precluding competing technology by eliminating a market for browsers and "write once run anywhere" technology is a valid one. Microsoft is using its monopoly power to price products higher than normal and to preclude competition. Frederick R. Warren-Boulton has testified on both of those issues.
November 30, 1998 - Monday
3:15 PM PST - Microsoft continues its campaign of misinformation and deceit via "paid for" advertisements?
The DOJ attorney David Boies points out the commercial advertisements from Microsoft falsely characterize the AOL-Netscape merger. And, Microsoft falsely characterizes the issues at trial as well. It is the conduct of Microsoft Corporation on trial.
Microsoft might be doing its best from the PR perspective but from the legal perspective it is misrepresenting the issues of the case and the law itself.
The issues of the case relate to Microsoft's monopolist practices in precluding competition and forcing the sale of unwanted products upon the consumer at inflated monopolistic prices.
Again, the question begs an answer from Microsoft. "Just how much is Microsoft charging for IE?".
Maybe Microsoft should try telling the truth for a change. Maybe Microsoft should actually tell consumers how much they are being charged for IE. Discontinue the deceit and fraud and actually tell consumers how much they are paying for IE.
Placing advertisements suggesting how competitive the industry is in other markets is a very deceitful effort on their part. It can only be intended to trick or fool the consumer into parting with their money.
1:42 PM PST - More evidence that IE is not free?
The question "Just how much is Microsoft charging for IE?", has been asked many times. But, now we are seeing more documents and evidence that Microsoft has used its monopoly power to force IE onto the consumers via ISPs as well as bundling it with the OS.
What does this mean? It means that Microsoft did not nor has it ever had to give away IE. Microsoft can use its monopoly power to all but force ISPs to distribute IE and more importantly preclude any competitor from using that marketing channel to distribute a competing browser.
This simply means that Microsoft can go ahead and charge "full boat" prices for IE as bundled with its OS. The need to sell for less than a full price is eliminated by Microsoft's acts to preclude other channels from being effective methods of distribution for competitors.
So. Just how much is Microsoft charging for IE? $140 (new)? $70 (upgrade)?
Suggesting IE is free when bundled with an over priced monopoly product is just not very logical. Even Steve Ballmer thinks so.
1:00 PM PST - The AOL-Netscape deal proves it is easy to replace Windows?
Sometimes the suggestions by Microsoft are truly amazing. The attorney for Microsoft suggested to the economist Frederick R. Warren-Boulton that the AOL-Netscape deal proves that no company can hold a monopoly in the consumer OS market? Where do they get these guys? That suggestion is absurd. For one, the AOL-Netscape deal was a reaction by two companies trying to defend themselves against the power of Microsoft's monopoly. And two, that merger does nothing to lesson the monopoly power of Microsoft. None at all. Sure, the industry changes. But, those changes have no affect upon Microsoft and its monopoly position and power.
Microsoft is making up ghost stories, ghost defenses and illogical conclusions in a vain attempt to fool the public and the court.
Perhaps Microsoft should read my "bubblegum deal" and "jawbreaker deal" articles and explain how the AOL-Netscape merger can possibly affect the choice faced by consumers. AOL and Netscape merging does not reduce the monopoly power nor monopoly acts by Microsoft one bit. None. Everyone is still required to buy Windows and forced to buy IE whether they chose Windows or an Apple OS. Netscape's ability to survive by merging changes little.
Microsoft's effort to force the sale of IE upon 100% of the consumer market also has not changed. Need we ask again? "Just how much is Microsoft charging consumers for IE?". It is clearly not free. Frederick R. Warren-Boulton has testified that Microsoft is charging monopoly prices for its products including IE.
The dependency that consumers have upon the Windows OS is not affected in the least by the AOL-Netscape merger.
Daily Wrap and Flow - Week Six
Daily Wrap and Flow - Week Five
Daily Wrap and Flow - Week Four
Daily Wrap and Flow - Week Three
Daily Wrap and Flow - Week Two
Daily Wrap and Flow - Week One