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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 | # ]
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Authored by: Tufty on Monday, July 23 2012 @ 02:31 AM EDT |
Off tropic will be good
---
Linux powered squirrel.[ Reply to This | # ]
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Authored by: Tufty on Monday, July 23 2012 @ 02:31 AM EDT |
Read all abaaaarrrt it
---
Linux powered squirrel.[ Reply to This | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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Authored by: tiger99 on Monday, July 23 2012 @ 11:09 AM EDT |
I do believe that we are still waiting! [ Reply to This | # ]
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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 | # ]
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Authored by: Anonymous on Monday, July 23 2012 @ 03:46 PM EDT |
Ouch. (Transcript p.5439)
[ Reply to This | # ]
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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 | # ]
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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 | # ]
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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 | # ]
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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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