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Be

Be Sues Microsoft for Violations of Antitrust Laws 676

Eugenia writes: "While Be, Inc had the information for over 3 years that Microsoft 'through a series of illegal exclusionary and anticompetitive acts designed to maintain its monopoly in the Intel-compatible PC operating system market and created exclusive dealing arrangements with PC OEMs prohibiting the sale of PCs with multiple preinstalled operating systems' they filed a suit against Microsoft only today. Today Be employes a single person in a tiny office in Mountain View. Great ..."
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Be Sues Microsoft for Violations of Antitrust Laws

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  • a single employee? (Score:2, Insightful)

    by sniepre ( 517796 )
    In my opinion, some times a single person without the red-tape of a corporate environment can get a lot more done...

    Does Be have any assests or $ anymore?

    What does Be have to gain from this, this late into their corporate demise/OS trip into obscurity?
    • by freitasm ( 444970 )
      Be assets were bought by Palm Computing...
    • A single employee is necessary if the owners of Be, Inc., have planned what I think they have planned.

      Consider that they may have purchased Be only to use it as a battering ram against Microsoft and all this time tossed it a carrot here and there and finally closed it down after suffering enough losses to look good in court. Depending on how the judge decides to view this it may work, it may not, or Microsoft may just say, "How much do you want to shut up and go away?", and settle out of court.

      A sad end for Be, anyway, particularly after watching something like this happen to my prior employer. The name may be the same, but there's a different soul, not to be trusted as the old one was.

    • by testuser58 ( 552737 ) on Tuesday February 19, 2002 @08:14PM (#3035389)
      Microsoft's legal strategy against Be:
      • Hire a full-time employee to stand with his naked butt pressed up against the Be employee's window all day long, every day, until Be drops the suit.
  • by daeley ( 126313 ) on Tuesday February 19, 2002 @06:38PM (#3034802) Homepage
    Should they change the name of the company to 'am' or 'is' since they only have one guy now? ;-)
  • by CaptainCarrot ( 84625 ) on Tuesday February 19, 2002 @06:38PM (#3034804)
    Today Be employes a single person in a tiny office in Mountain View. Great ..."

    At least they won't have any problem demonstrating irreparable harm.

    • At least they won't have any problem demonstrating irreparable harm.

      The trick is demonstrating microsoft is responsible for it. When you have 36 billion is cash on hand people just see deep pockets so why not play court room lotto.
  • Based on this article, if the company only employs one person, s/he must be...

    A LAWYER!

  • Very Fashionable (Score:3, Interesting)

    by djweis ( 4792 ) on Tuesday February 19, 2002 @06:39PM (#3034813) Homepage
    Now that it's become popular for other companies to sue Microsoft, who will the next one be? Novell seems to be a possibility. IBM should for the same reason as Be, due to OS/2.
    • by JabberWokky ( 19442 ) <slashdot.com@timewarp.org> on Tuesday February 19, 2002 @06:59PM (#3034982) Homepage Journal
      Novell probably died out in quite a fair fashion. OS/2 probably would have a somewhat valid claim - if they could establish that MS held a monopoly at the time and used tactics that, given that monopoly, were illegal. Certainly, there were strong tactics used, and end runs around contracts.

      Remember - it's not illegal if you're not a monopoly, and it's not illegal to be a monopoly. It's just that certain things *become* illegal when you're a legally defined monoply. Most monopolies like utilities (power, water, phone, cable), just kowtow to heavy regulation and limited profits to maintain their monopoly.

      --
      Evan

      • Remember - it's not illegal if you're not a monopoly, and it's not illegal to be a monopoly. It's just that certain things *become* illegal when you're a legally defined monoply.

        Wonderful summary! They never managed to be that clear in my (few!) law classes.

        Most monopolies like utilities (power, water, phone, cable), just kowtow to heavy regulation and limited profits to maintain their monopoly.

        Note those monopolies are or were government granted monopolies, that is they convinced the government to bar any competitors (that sort of stopped for phone companies in the 80s, and sort of for some power companies recently, but is still largely true of cable in most places in the USA, a few places the local governments granted two companies hte rights and they have much better and cheaper service then avg, and fewer small dish users...I think water is still a monopoly everywhere...).

        P.S. the above applies to the USA, it's a big world, and I'm sure other countries do things other ways...

        • Note those monopolies are or were government granted monopolies

          Nope - cable companies, power companies, water companies, even today's new micro phone companies all paid for their growth. The single difference being that of the old railroad system, three words that necessarily involve the government in the operation of these companies: Right of Way. They all have to work across private and public property, and as a result occupy a special category *in this respect*.

          I highlight those words because it's very important to remember that the government regulates *all* companies in one way or another, even if just for taxation, corporate status, business license or other paperwork. This does not mean that they are "quasi-government" agencies - just that the government has requirements for them. The necessity of most utilities to gain right of way access to private property brings governmental regulations in the door. The subsequent monopoly they tend to gain then cements that regulation.

          In this respect, MS is an interesting case - a monopoly that has had very few regulations, and has managed to establish that monopoly, possibly turning their product into a utility required for business. Comparisons to prior cases in other domains is important - but it's also important is recognize the differences in each case. In MS's case, I worry, those differences nearly negate the conclusions you can draw from prior cases.

          --
          Evan

    • Now that it's become popular for other companies to sue Microsoft, who will the next one be? Novell seems to be a possibility. IBM should for the same reason as Be, due to OS/2.

      Since Microsoft is a convicted monopolist who has been proven to have abused its market position to destroy competition (and thus numerous companies, disrupting countless lives), calling this "fashion" marks you clearly as a Microserf, at least, and quite possible a paid PR lackey (as so many who pollute open source and free software sites such as this with their nonsensical "astroturfing" campaigns).

      This isn't fashion, it is justice, and long overdue.
      • by djweis ( 4792 )
        I think you'll find that I'm most definitely not a Microsoft fan. I'm a Java programmer, Oracle DBA, and have two drivers in the Linux kernel.


        You can't say with a straight face that any of the companies bitching about MS executed their strategy perfectly, especially Netscape. They sat on their ass for too many years and tried to increase the revenue on the server side first. MS went the other way and said that once we have the end user mind share, we can take the back end.

  • Why now? (Score:5, Insightful)

    by Pyromage ( 19360 ) on Tuesday February 19, 2002 @06:39PM (#3034816) Homepage
    Today it employs only one person in a tiny office...

    Sounds like you're wondering why they'd do so *now* of all times, when they can't do anything.

    Easy: Nothing to lose. The company has nothing left. Normally it is unwise to sue MS. They'll just drag it on and you won't get a significant gain (i.e. Apple's suit), even if you do win. But now, the worst the spending can do is bankrupt them: which is basically where they stand now anyway. OTOH, the damages they could land could put Be back on its feet.

    Sounds like the smartest option left to them.
    • Re:Why now? (Score:3, Interesting)

      by FatRatBastard ( 7583 )
      Nothing to lose.

      I wouldn't go that far. AFAIK they still have stock holders and are trying to disolve the company. Some of the stockholders may not want any more money wasted and just liquidate what's left.

      Of course, since the potential payout is much, much larger if they sue I doubt anyone would pitch a fit, but you never know.
      • Re:Why now? (Score:3, Informative)

        by artemis67 ( 93453 )
        Be's stock closed at twelve cents today. $500 would buy just over 4,000 shares.

        So, what are the odds of Be being able to siphon off a billion or two from MS? :-D
      • Re:Why now? (Score:3, Interesting)

        by tswinzig ( 210999 )
        I wouldn't go that far. AFAIK they still have stock holders and are trying to disolve the company. Some of the stockholders may not want any more money wasted and just liquidate what's left.

        Wrong... as a stockholder for a long time, I can tell you the only thing we're holding on for is a lawsuit just like this. The only reason Be is suing now is to win money to try and give some money back to their shareholders.
    • Especially with a Lawyer dumb enough to take the case on a contingency basis.

      Susman Godfrey L.L.P. is a law firm that limits its practice to litigation, on behalf of both plaintiffs and defendants.

      Gee, that seems awfully limiting....
  • by coltrane99 ( 545982 ) on Tuesday February 19, 2002 @06:40PM (#3034823)
    Companies will do things like this after the game is over to try and get some nickels on the dollar for the VC's. I would expect them to settle for a low dollar amount.
  • by rjnagle ( 122374 ) on Tuesday February 19, 2002 @06:46PM (#3034869) Homepage
    Well, I wish the litigator success, because it would definitely be a boon for PC's sold today to come equipped with more than one OS. However, nobody put a gun to the head of the OEM's who produced single system PC's. To win this case, you would need to demonstrate that the contracts between Microsoft and OEM's violated antitrust laws. Quite frankly, I doubt that this could be shown. Despite the finding of fact in the antitrust lawsuit, you would have to show that it was impossible or next to impossible for OEM's to sell PC's with alternate OS's.

    But Dell has been able to sell Linux (which apparently they dropped, but don't worry, HP is now selling them). And other PC companies have been able to do the same (albeit in limited numbers).

    To prove that it was impossible for OEM's to sell PC's with alternate OS's, you would need to demonstrate some sort of collusion between Microsoft and Intel, making it difficult for developers to produce alternate OS's on Intel CPU's. That clearly has not happened. The x86 Intel platform certainly didn't hinder kernel development, and Intel has been relatively open about publishing specs.

    Good luck Be. Truly, I feel your pain.

    Robert Nagle Idiotprogrammer [idiotprogrammer.com]
    Austin, Texas, idiotprogrammer, Technical writer
    • by CaptainCarrot ( 84625 ) on Tuesday February 19, 2002 @07:03PM (#3035012)
      There was an old tagline for Schlitz beer: "When you're out of Schlitz, you're out of beer." To which liquor store owners would frequently retort, "Yeah, but when you're out of Bud, you're out of business." Sure, sell all the brands of beer you want. If you don't have the most popular brand though, you're going to run out of customers sooner or later. Probably sooner.

      The question wasn't whether anyone could have sold machines with non-MS OSs; clearly they could because some did. It's rather whether or not you could run a business exclusively selling machines with non-MS OSs. When the basic requirement to sell Windows pre-installed on your machines at all is to purchase a Windows license for every machine you sell regardless of whether or not it's actually installed, and when you're forbidden under the terms of the OEM agreement to sell machines with some other OS installed next to Windows, it simply does not make economic sense to offer more than one pre-installed OS. In that case, which OS are you going to choose? If you don't choose Windows, you're in a situation analagous to that of the liquor store owner who chooses not to sell Bud, but with a vengeance. Instead of locking out 50% of the market (or whatever Budweiser's market share is) you're locking out 99%. That's just foolish. It's a formula for going out of business. If it was a workable buisness model, VA Software would still be VA Linux.

      Maybe, just maybe, if you're Dell or HP you have enough muscle to get MS to strike the offending clauses from its standard OEM contract. But for Joe's OEM and Bait Shop around the corner here, it would be impossible. To sell any other OS than Windows would be financial suicide.

      • Maybe, just maybe, if you're Dell or HP you have enough muscle to get MS to strike the offending clauses from its standard OEM contract. But for Joe's OEM and Bait Shop around the corner here, it would be impossible. To sell any other OS than Windows would be financial suicide.

        Actually, if you're Dell or HP, you have such narrow margins and tight schedules that any hiccup (such as late delivery of a preview of the next windows operating system, delayed certification of hardware etc.) will totally fuck up your supply chain, your developement and testing cycle and any hopes of profits you may have had. As long as Microsoft keeps their "trade secret" exclusionary license, Microsoft has the top PC manufacturer's by the short and curlies and they all know it. Microsoft doesn't care if they Dell or Gateway drops off the face of the earth tomorrow: HP, Sony and Compaq will just sell more Microsoft licenses. Why do you think not a single major PC manufacturer testified during the trial? They're all scared out of their minds that Microsoft will fuck them out of business in less time then it takes to say, "Sorry! Your licenses are held up. Please press 1 to speak with a Microsoft sales representative or 2 to leave a message".

        • Why do you think not a single major PC manufacturer testified during the trial?

          I believe Dell and Gateway were both heavily in favor of the Government seeking to divide up Microsoft. Then something happened. People stopped buying as many new PCs. It turned out that people were able to run everything they wanted on their current machines.

          So, where could they find the next "killer app" to drive the PC upgrade process?

          Redmond, WA of course. Windows XP is the only reason that Dell, Gateway and all the other computer makers aren't hurting big time right now. The bloated nature of Windows software is actually as selling point to companies bundling software with new PC's.

          Ever wonder why the government suddenly changed its mind about breaking up Microsoft? It had a lot to do with the Dells and Gateways of the world asking them not to (and a bit to do with content companies requesting the same thing).

          Microsoft has a lot more than just their short and curlies in its hands.
          • Redmond, WA of course. Windows XP is the only reason that Dell, Gateway and all the other computer makers aren't hurting big time right now. The bloated nature of Windows software is actually as selling point to companies bundling software with new PC's.

            That may be partially true but I believe the core reason the DOJ changed their mind about breaking up Microsoft was not because of Dell or Gateway but because Bush became POTUS and ordered a review of the case by Ashcroft. If Gore had become president, the DOJ would still be asking for a breakup of Microsoft. Well, maybe not after 9/11...

            Don't you think Dell and Gateway would prefer to be able to say to consumers, "Hey, you can boot into Windows, Darwin, FreeBSD *and* Linux if you buy one of our laptops/desktops!" Or "Configure your own multi-boot system, we'll set it up for you!" ? I think it would make the PC market much more interesting and add more value for the customers.

            And yes, Microsoft has more than just the short and curlies in its hands. They've got them all by the family jewels.

    • by taco1991 ( 213491 ) on Tuesday February 19, 2002 @07:11PM (#3035057)
      Did you actually read the finds of fact from the antitrust case? In fact, it clearly spells out why OS/2, MacOS, and Be (listed under "Fringe Operating Systems") couldn't capture even a minimal share of the OS market. go read it yourself [usdoj.gov] and see. In fact, I wouldn't be surprised at all to see Apple, IBM, and other OS makers sue Microsoft as a result. Maybe this will start a chain reaction that may be able to slow the giant...

      taco
    • Despite the finding of fact in the antitrust lawsuit, you would have to show that it was impossible or next to impossible for OEM's to sell PC's with alternate OS's.

      The key was impossible. Things have changed in the last five years. Five years ago Be still had a chance. Five years ago, Microsoft's OEM agreements charged for a copy of Windows on every machine shipped, even if Windows wasn't actually installed. Five years ago Microsoft's OEM agreements forbade putting a "Boot into BeOS" icon on the desktop. Five years ago you could not purchase a desktop PC from a mainstream OEM with a non-Microsoft operating system.

      Microsoft's tactics deliberately made it nearly impossible for an OEM to offer customers alternate operating systems. Maybe BeOS didn't have what it takes to survive in the market, but we'll never know, since Microsoft effectively kept BeOS out of the market.

    • The case is based on the fact that Microsoft wouldn't let OEMs sell dual-boot systems with Be and Windows. It doesn't say anything about single-OS computers. Be is saying that in order to overcome the "applications barrier to entry" (lack of prominent Be applications due to small user base combined with small user base from lack of applications), their strategy was to offer dual-boot systems. They are claiming that Microsoft's pricing practices and licenses prevented dual-boot systems from coming about. To me the case seems pretty solid, but IANAL so I'm almost certainly totally wrong.
    • Jean-Louis Gasse offered BeOS free

      to any hardware manufacturer at one point. That not one took him up on it is a fairly positive indication that MS was putting some major pressure on PC makers. It's been shown that the secret licence that MS forced PC makers to sign specifically prevented PC makers from offering any alternative. The only PC maker who did offer BeOS pre-installed (Toshiba?) was forced to hide it, rather than make it a menu choice.

      Be has a very good case. Put it this way - there are folks who would be happier to invest in this suit, than in Be as a successful seller of operating systems.

      • Jean-Louis Gasse offered BeOS free to any hardware manufacturer at one point. That not one took him up on it is a fairly positive indication that MS was putting some major pressure on PC makers.

        It's not an indication of anything. In addition to the cost of the software, there must be demand for it -- after all, it costs OEMs a substantial amount to support additional OSs and unless they're going to sell in significant bulk (and there's no indication that Be would -- there weren't that many downloads even after it became free [as in beer]).

        After all, Linux is a free OS and Dell didn't find it worthwhile to continue to provide it on their workstations. (Yeah, yeah... mod me down... doesn't make me wrong)

    • by dinotrac ( 18304 ) on Tuesday February 19, 2002 @07:34PM (#3035192) Journal
      Actually, Microsoft did put a gun to the heads of OEMs and the DOJ blundered miserably in not making it one of the elements of their case.

      Microsoft's agreements with OEMs (the agreements themselves were trade secrets, by the way) forbad creating multiple-boot machines. Be's business strategy was to be a "helper OS": used for things that Be did best without losing access to Microsoft Apps. It's pretty much the same strategy Microsoft used in weaning people from DOS to Windows 3.0. Microsoft's OEM agreements prevented this kind of arrangement. Realistically, given the amount of software on the market, it also prevented desktop competition.

      For an OEM, on a thin margin, that's pretty much like putting a gun to your head. It's also illegal as Hell for a monopolist to do.

      Be is in a pretty good position, here, I think. Microsoft has already been established as a monopolist and the OEM agreements very clearly represented an illegal abuse of their monopoly power.

      If I'm not mistaken, and I may be, this suit will be in a class of Federal suit whereby the loser pays. If so, Microsoft will be responsible for all legal fees if they lose.

      I wouldn't be completly surprised if some enterprising law firm adds up the merits of this case and agrees to go for a big score here, matching MS blow for blow.

    • by Asmodean ( 21717 ) on Tuesday February 19, 2002 @07:54PM (#3035273)
      "However, nobody put a gun to the head of the OEM's who produced single system PC's. To win this case, you would need to demonstrate that the contracts between Microsoft and OEM's violated antitrust laws."

      I used to work for a small OEM and yes, MS could hurt them too. This small OEM had bussiness sales and most of those companies wanted computers with windows. If our OEM could not provide them with it (ie if MS cut them off) then they would have gone to an OEM that could provide it.

      I have the "Microsoft Windows NT Server and Windows NT Workstation OEM Preinstallation Kit" booklet right here in front of me. I'll quote you some of the more juicy bits:

      "To comply with the terms of your OEM license agreement, you must conform to the requirements and restrictions described in the sections that follow."

      "You must preinstall Windows NT using one of the two methods described in this book; you may not preinstall Windows NT using any other method."

      "You must preinstall Windows NT on the hard drive of every computer that you ship to a user."

      "You cannot ship only a compact disc containing the Windows NT operating system; Windows NT must also be preinstalled on the computer's hard drive."

      "You can install ONLY the Windows NT 4.0 operating system on a computer. You cannot include an additional operating system (such as Windows NT 3.51, windows 95 or Windows 3.1) unless you have a seperate legal agreement with Microsoft."

      There are some of the restrictions word for word. There are a bunch of other things like the computer has to boot directly into windows, which rules out lilo. You also can't modify/delete almost anything including the IE start or search pages.
  • by lostchicken ( 226656 ) on Tuesday February 19, 2002 @06:47PM (#3034879)
    I fully agree with Be's suit.

    Microsoft hit BeOS hard with the release of Windows Me. You see, BeOS PE needed a way to exit Windows without shutting down. This was possible in Win 95 and Win 98, but removed in Win Me.

    Microsoft never gave a reason for this, and it is assumed that MS made this change to restrict other OSes from running along side of Windows.

    Microsoft's strong-arm tactics in OEM licensing also hit Be hard. Many companies were going to start shipping BeOS machines, but they noticed a clause in their license that would require the purchase of a Windows license, even though Windows would not be used. This would be very costly, so the OEM BeOS idea failed.

    Some have said that the size of Be will hurt them. I diagree. Think from the jury's point of view.

    You see one large company against one man. That one man used to be a large company, but the other large company killed it.

    It is just this kind of tale that will help Be the most in the courtroom.
    • by abe ferlman ( 205607 ) <{bgtrio} {at} {yahoo.com}> on Tuesday February 19, 2002 @06:57PM (#3034964) Homepage Journal
      Even worse, the beast may have infringed on Be's trademarks.

      According to legal opinion in Redmond, "Lindows" may confuse consumers into thinking they're getting "Windows". So switching the first letter of your product name with that of another player is bad, right?

      Well, "Be" only had two letters to begin with, and MS went and took one of them for their shiny new consumer OS! It's like the David and Bathsheba of the software world. Truly shocking.

      • by Tony-A ( 29931 )
        Also the've tended to be all caps as in NT or XP. You would expect Microsoft Windows Millenium Edition to be ME instead of Me. Looks like Microsoft went out of their way to trample on Be.
    • by futuresheep ( 531366 ) on Tuesday February 19, 2002 @07:02PM (#3035002) Journal
      The problem wasn't that OEM's couldn't offer another OS, it was the fine print that said if you offered Windows, you couldn't make any changes to the boot loader. Hitachi had a PC, the Flora Prius, that had BeOS installed on a seperate partition, but in order to use it, there were instructions you could get online to make it bootable. Good article on it here [byte.com].
  • Good. I'm glad. (Score:4, Interesting)

    by antis0c ( 133550 ) on Tuesday February 19, 2002 @06:50PM (#3034907)
    I for one am glad that Be is sueing Microsoft, and I don't think it's as futile as some think either. If you read the article, the entire suit is based on the destruction of Be, majority of it because Be was unable to get PC OEM's to install Be on PC's they sold because license agreements with Microsoft prohibited that from taking place, else they violate their agreement with Microsoft, and will not be allowed to install Windows on any machines. You cannot get anymore anti-competitive. Plus, with only a single person left in the company, and 99% of its assets sold off, you can't get anymore proof the business was indeed destroyed. The burden on Be now is to prove that is was indeed largely Microsoft's fault and not other elements such as poor business plan, or a product the market didn't need. Hopefully it'll get more press coverage, this should continue to help prove to the average Joe Windows that Microsoft didn't get where they are today because they make a good product.
  • by miffo.swe ( 547642 ) <daniel.hedblomNO@SPAMgmail.com> on Tuesday February 19, 2002 @06:50PM (#3034911) Homepage Journal
    Due to the conviction of Microsoft as an abusive monopoly and the many businesses they have destroyed more suits will likely emerge. The fact that Microsoft will battle multiple fronts will probably make it easier to win a suit. When Sun, DOJ, Be and AOL togheter pull resources in different directions it will be hard to focus. This will encourage more stomped companies to file aswell. I think that this also has a good side effect, that is open source will maybe have a window of opportunity to thrive. Microsoft will have their hands full for a while now, especially if IBM and other joins the fight.
  • A lot of people who helped develop Be probably want to do the same thing again. If they can force MS to let PC manufacturers install other OSes on their machines, it'll give the former Be-folks another shot at making a fortune. (and maybe Palm has the same aspirations, for that matter)

    Whether they'll be successful is another story altogether...
  • by slithytove ( 73811 ) on Tuesday February 19, 2002 @06:52PM (#3034929) Homepage
    Elizabeth sits in a closet now
    and the blissful memories fade
    visions of objects and mime-types
    and the neat little scripts that i made

    Hope for the future has past
    from my elegant blue Beth
    to various *n*x machines
    what little hope I have left

    For as much as gnu's full of bounty
    and the empire looks to fall from it's hill
    I remember a time that was simpler
    only a BeBox my wish could fulfill
  • by Meowharishi ( 550240 ) on Tuesday February 19, 2002 @06:53PM (#3034935) Homepage
    There's a fantastic book out there called the 22 Immutable Laws of Marketing. It's a fascinating read and contains many case studies to back up these "Laws".

    The place for #3 in any market is always small, but obtainable. Linux now owns this space in the desktop OS market (with Apple being #2). Be failed to really develop themselves and build what is known as "mind share". How many people have even HEARD of Be? Not many.

    As entertaining as it might be to generate conspiracy theories that somehow the big evil M$ "kept them down", there are other more down-to-earth reasons why Be has always been doomed.

    Linux squashed Be. This is because Linux caught onto a market wave as it was happening (the open source movement).. Be tried to catch on to this as well but it was too little too late.
    • Did you read the article? MS vendor license pro-hibits andy other os on the computers they sell other Than Microsofts. Be was already in talks with compaq, Dell, CompUSA and other about a dual boot with windows. Upon further inspection with the MS license they relized they couldn't do.

      THis is why you never ever see any computer sold with a dual boot one being windows and the other not. If this law suit is sucessful it might me great things, such that computer stores will be able sell linux and other OS's along the side of Windows and MS won't be able to do a damn thing a bout it.

      And yes, This is what hurt Be OS. Microsoft. This is why they don't have "Mind Share" its all becuase of Microsoft.

      The reason why Linux is succesfull is because it doesn't play by the normal economy rules. Not because it marketed itself better than Be.
  • I thought I remembered reading that article before, and after skimming it again I was correct.

    Since Be is getting into the ever technical legal system with their actions, this could be a very good case, however I feel Microsoft will win this one.

    If the contracts Microsoft signed with OEMs stated that theirs was the only OS to be installed on computers, then that is clearly anitcompetitive, and this is what Be is alledging (only Windows on a computer). However, from what I gather from the article Microsoft's contract with OEMs made it so they could be the only OS listed on the boot loader.

    Now, this may be cutthroat business, but it's not what Be is alledging. Their software stinks, but Gates is a ruthless business man, which I do admire to a certain extent.

    Thus, in this world of legal technicalities, I think Microsoft will win.
  • by Anonymous Coward on Tuesday February 19, 2002 @06:54PM (#3034940)
    When Be had an agreement to ship pre-installed on laptops from a major distributor (I forget, was it HP?) Microsoft stepped in and said "did you read your license agreement? You can install other operating systems if you want, but you cannot boot from them or display how to get to them." So the machines shipped with Be installed, but most people never knew it. This cost Be quite a bit of money.

    They tried to get the DoJ to use this in the antitrust trial, but the DoJ said that their case was for illigal tying, not for exclusionary agreements. DoJ urged Be to go to trial separately.

    When BeOS was purchased not too long ago, they reserved the right to sue MS based on the judgement of the court in the DoJ trial. Since it appears that the DoJ sold out, Be is finally doing what they should have done earlier.

    Better late than never. Good luck, Be!
  • by sterno ( 16320 ) on Tuesday February 19, 2002 @06:56PM (#3034954) Homepage
    Ultimately what will bring down Microsoft isn't any sort of half-baked government settlement. What will doom them is having to fight a ton of little court battles against every company who ever thought about competing against them. Even if they win a lot of these cases, the pure distraction of having to fend off all these suits is going to hurt them.
  • As above. Palm Inc of PalmOS fame owns Be's assets etc including their IP and the OS. Perhaps this has something to do with that? No idea why Palm would want to hassle MS.
  • Look, i'm sorry but this is complete crap. What if OS/2 had won and driven MS out of Windows... would that have meant that MS could have sued IBM? Signing exclusive agreements is NOT illegal! What is illegal is saying you're going to pay for a copy of the OS regardless of whether or not you ship a copy of the OS on the machine (this is what the consent decree from the early '90s was about, before Be had shipped an OS at all). Further, if they added x or y to prevent Be from booting/installing/whatever, that's LEGAL. They're competing products!

    Please folks... substituting MS for a society where companies cannot compete due to fear of lawsuits is about 100x worse. Be messed up bad, and now they want a lawsuit to recover as much as they can. I hope that the libertarian folks among you can see this at least.

    Flame on.
    • I see this sort of argument ALL the time. Of course it is legal to sign exclusive agreements. The whole thing becomes different when you have a monopoly and is using that to strong-arm out the remainder of the competition.

      Microsoft could pressure OEMs because no OEMs could ever afford to loose the goodwill of MS. If they didn't sign exclusive agreements, they'd very well be out of business because of the fierce competition in the PC-business.

      The fact is that Microsoft have been PROVEN to be abusing monopoly power in a parallell case.

      Be most surely has a case. But what will probably happen, is that this is all settled out of court with a pretty sum that enriches a few Be-investors, and doesn't really affect Microsoft.
    • Actually, If OS/2 had won (and OS/2 WAS a superior operating system compared to MS's offerings at the time) MS probably would have found some standing to sue IBM and done it. That's not the point though - sigining exclusivity agreements is legal as long as there is equal opportunity in the marketplace for other people to sell similar goods. MS aliging itself with the biggest OEMs automatically destroys any other OS's chance of entering the market, much less creating a sizable user base necessary for sustaining production of the OS. What MS did was blatantly illegal and that's why the findings of fact from the antitrust case stated as such.

      taco
    • What if OS/2 had won and driven MS out of Windows... would that have meant that MS could have sued IBM?

      Of course not. IBM holds no monopoly in operating systems. MS does.

      Signing exclusive agreements is NOT illegal!

      But when you're a monopoly it changes the rules. You're missing the key word here, and that word is monopoly.

    • "Signing exclusive agreements is NOT illegal!"

      This is true, except in one case. When you are a monolopy and those agreements preclude any competition.

      Which is what appearantly happened here.
    • by RelliK ( 4466 ) on Tuesday February 19, 2002 @07:45PM (#3035245)
      Oh please! Let's beat the dead horse again.

      Signing exclusive agreements is NOT illegal!

      This has been covered extensively in the antitrust decision (which, BTW, was upheld unanimously by 9 appelate judges). The exclusive agreements are illegal when you have a monopoly in that particular market. Microsoft has a monopoly in the OS market. (*) Therefore, the exclusive agreemets are illegal. End of story. You'd do well to actually get a clue before spouting nonsense.

      (*) Oh, and before some moron decides to beat the "MS is not a monopoly" horse, I will not argue with that. I'll merely point out that the district judge and 9 appellate judges disagree with you. And they probably understand the laws a bit better than you.

    • The whole point of this article is that what MS did is illegal by anti-trust law. MS having a monopoly is not illegal. But leveraging that monopoly to to continue to keep competitors out is illegal.

      Therefore actions which by themselves might not be illegal, when taken in the context of a monoply can be illegal.

      Look at it this way. Pretend Ford owned 95% of the gas stations in America and said that their gas could only be sold to Ford cars. Now you (the consumer) want to a buy a car. Normally you would never want to be limited to a car that can only use one vendor's gas. But because Ford own's 95% of the gas stations, you have no choice. If you buy a non-Ford car only 5% of the gas stations will sell gas to you making it unlikely you'll find gas when you need it. Take that one step further. Since everyone buys only Ford cars, no one is going to start a non-Ford gas station since there aren't enough non-Ford cars to support it. Hence Ford can sustain its monopoly through its monopoly power. There is no way to break out of this cycle, no matter how much better or cheaper compeitors make thier cars. The only way to open up to competition is through government intervention via anti-trust law.
  • I'm just wondering what PC manufacturers they went to in an attempt to get them to carry BeOS.

    It looked like a nice OS, although I never got it working on my system. Of course that may have been a significant barrier for PC makers too, as far as hardware support. Technical support may have been another issue. I'm sure they already have their support staff trained for Windows, where BeOS would require retraining. All that for an OS that's really a hobbyist OS doesn't seem like a wise investment for PC makers to jump into. It's not liek Be was finding it's way onto corporate systems anywhere.

    I agree with the other poster that said Be should have made and sold it's own systems. Maybe with some hardware specially designed for musicians. They may have even gotten some school contracts with that, but I guess lawsuits are the only remaining option.
  • What bearing does Palm Inc. have on this lawsuit?

    With Microsoft making inroads into the PDA market, is this lawsuit just a ploy by Palm to distract the competition? It forces Microsoft to expend additional resources, while Palm can focus and regroup. Or so they might be thinking . . .

    "My young apprentice, there is something else behind this . . ." - Qui Lime Pi, The Phanton Menace
  • by da_Den_man ( 466270 ) <dcruise@@@hotcoffee...org> on Tuesday February 19, 2002 @07:07PM (#3035033) Homepage

    I think people are missing the brilliance of this tactic. Yes, Be is no more. It has ceased to Be. (haha) However, they are illustrating the WHOLE POINT of suing by being out of business.

    What better way to illustrate a Monopoly that prohibited vendors from bundling competing products, therby limiting the market and competition to any Microsoft monopoly, than to be a competing product driven out of business by the same monopoly?

    Now, as long as they can afford the legal fee's, they may actually have a chance at illsutrating WHY MS should be broken up, and WHY MS IS a monopoly in the truest sense of the word.

  • by davidebsmith ( 306645 ) on Tuesday February 19, 2002 @07:12PM (#3035065)
    if you read the press release [beincorporated.com] about the Asset Purchase Agreement under which Be sold almost everything to Palm:

    Pursuant to the terms of the asset purchase agreement, Be retained certain rights, assets and liabilities in connection with the transaction, including its cash and cash equivalents, receivables, certain contractual liabilities under in-licensing agreements,
    and rights to assert and bring certain claims and causes of action, including under antitrust laws. Be is in the process of investigating the merits and potential value of pursuing the retained claims and causes of action. Be has not yet brought any such claim or cause of action. Under the terms of the plan of dissolution, if, notwithstanding the approval of the dissolution and the adoption of the plan of dissolution by the stockholders of Be, the board of directors of Be determines that it would be in the best interests of Be's stockholders or creditors for Be not to dissolve, including in order to permit Be to pursue (or more easily pursue) any retained claims or causes of action, the dissolution of Be may be abandoned or delayed until a future date to be determined by Be's board of directors. Regardless of whether Be dissolves, Be will not continue to exist as an operating entity.
    (emphasis added)
  • I guess that's why I never saw the BeOS in computer stores. MS probably made a deal with them so they would not put BeOS on there shelves :)
  • ...splitting Microsoft in two companies? Yeah, they could use a separate corporation of lawyers only!
  • If they were to call the Be employees who had dealings, it could be a long trial! One person, that could take AGES! Seriously though, I think that this is great timing (and that's probably what they've been waiting for).
  • by Arethan ( 223197 ) on Tuesday February 19, 2002 @08:31PM (#3035487) Journal
    If I were an OEM, I could install both Linux and Windows on the same machine, and be able to offer my customers a simple multi-boot solution without having to modify the boot sector at all. It's called a boot disk. Insert this disk when you want to boot to Linux. The disk contains nothing more than SysLinux, which is set up to boot the linux partition off of the harddrive. There, OEM License problem is solved.

    Then just put a little icon on the Linux desktops. "Tire of using a floppy to boot linux?" Curious users will click it, and it will Druid them right through installing a multiOS bootloader on their harddrive. Probably LILO or GRUB. And voila, you're done.

    Of course, most OEMs aren't too bright when it comes to getting around license restrictions. The legal departments tend to jump onto the MS bandwagon pretty quickly since it's been their bread and butter for so long.
    • by ispel ( 266661 ) on Tuesday February 19, 2002 @09:12PM (#3035655)
      If I were an OEM, I could install both Linux and Windows on the same machine, and be able to offer my customers a simple multi-boot solution without having to modify the boot sector at all. It's called a boot disk. Insert this disk when you want to boot to Linux. The disk contains nothing more than SysLinux, which is set up to boot the linux partition off of the harddrive. There, OEM License problem is solved.

      The OEM Licensing agreement you are refering to is considered a trade secret. NOBODY but the legal teams at the OEMS are allowed to read it. Your idea assumes that the licensing agreement doesn't explicitly exclude the "loophole" you described.

      Okay, giving your idea the benefit of the doubt, Microsoft's OEM licensing agreements are contingent on the whim of Microsoft. If an OEM, and I'm not talking about Joe OEM, I'm talking about the big names, Gateway, Compaq, Dell, even look at Microsoft crosseyed, Microsoft may yoink their OEM license agreement, which would subsequently mean immediate death to said OEM. They can't afford to sell computers if they aquire Windows at a retail price. This means that Microsoft has a lot of leverage outside of their exclusionary licensing agreement that does not leave a lot of room for OEMs to be "creative".

      This topic is what Be's complaint [beincorporated.com] is about. When Compaq announced that they were going to market a Internet Applicance running Be's BeIA, well, read this quote from Be's complaint [beincorporated.com]:

      51. In October 1998, however, Compaq informed Be that it had disclosed information about the Be Internet appliance project to Microsoft. Later that same month, Microsoft Chairman

      Bill Gates visited Compaq CEO Eckhard Pfeiffer as part of a "Digital Appliances Review."
      52. In early November, under pressure from Microsoft, Compaq informed Be that it was no longer interested in licensing BeOS.

      Microsoft used monopoly illegaly (tried and convicted by the highest appeals court). Their control over OEMs extends past their written contracts.

    • Actually, Be did exactly this. I know, because I wrote some of the docs for it.

      And guess what? It didn't work.

      The fact is, sticking in a floppy and a sheet of paper is vastly inferior to having the software appear in front of the user when they boot.

      So, you can get around the letter of the license agreement with this tactic, but you can't get the same market leverage. And it's market leverage that pays the bills, not a "clever" legal trick.
  • by DanielTeske ( 126703 ) on Tuesday February 19, 2002 @09:16PM (#3035676)
    http://www.theregister.co.uk/content/7/24134.html [theregister.co.uk]

    http://www.theregister.co.uk/content/4/21410.html [theregister.co.uk] The register's summary of this Byte article:

    http://www.byte.com/documents/s=1115/byt20010824s0 001/0827_hacker.html [byte.com] Byte's take on the bootloader issue.

    daniel teske
  • by nick_davison ( 217681 ) on Tuesday February 19, 2002 @09:45PM (#3035783)
    "While Be, Inc had the information for over 3 years [..snip..] they filed a suit against Microsoft only today."

    If you read the press statement, it's for "for the destruction of Be's business". It would have been fairly hard for Be to sue Microsoft for destruction of their business three years before Microsoft had finally destroyed their business.

    When you're trying desperately to stay afloat and keep your shareholders on board, the last thing you do is publicly sue someone for having irreparably harmed you. Admitting that you're sunk simply guarantees you'll lose whatever remaining chances you have.
  • by sheldon ( 2322 ) on Tuesday February 19, 2002 @09:51PM (#3035814)
    I recall all the articles posted to slashdot about BeOS, and how nearly every one of them was greeted by jeers and disgust.

    "Be wasn't free, it wasn't open source. Who wants to use that crap anyway?" was the response of the /. masses.

    Now the slashdot masses want to complain that Microsoft killed Be?

    This is hilarious. :-)
  • Time to Gamble (Score:3, Interesting)

    by Hangtime ( 19526 ) on Tuesday February 19, 2002 @11:04PM (#3036036) Homepage
    This reminds me of Nextwave in a lot of ways.

    BG: Nextwave was the company who bought the spectrum many of the cellular companies are deploying new services on. Well they didn't pay their bills and the FCC took back the spectrum and reauctioned it. Nextwave sued the FCC for taking it away and it dragged through court for about three years and Nextwave won. Now their worth a TON of money because, the Cingulars and Verizon's of the world already have service. Guess who the FCC has to buy from to get the spectrum back.

    Now let's apply this to the current situation. Be is currently worth about 4.4 million total right now in stock. Since the company doesn't really have any debt anymore roughly $1.5 million with most of that in current liabilities so the company is close to $3 million total.

    Roughly 130 million computers (got this off a CNN article correct if wrong) were sold last year. Now watch this. Judge finds that Be was killed by Microsoft. Take the previous two years of sales will say 225 million PCs. Judge says 150 million (round ball) were shipped by OEMs and Be considering its size would not be have penetrated no more then 2% of the market. That means they could have put their OS on 3 million computers. Ok, let's now say Be charged $25 for each copy (below MS because they are trying to gain market share and they will be considered an inferior product to most of the marketplace). Now we have at least a verdict of $75 million or roughly a 17x the current stock price. Of course Be is a penny stock at 12 cents and they very well could lose the case but if you got money that you would take to Vegas it might be worth a shot.

    BTW, we haven't even talked about the chance for punitive damages and if MS lost the case and decided to settle you could be looking at handsome pay day.

    HT
  • by Anonymous Coward on Wednesday February 20, 2002 @09:36AM (#3037362)
    Ok, having read through the comments on this article, one thing is crystal clear. The facts matter less than the opinions. So in that model, I'll throw out my speculation.



    Be, Inc did negotiate a preload deal, with a big vendor. The product actually did ship in limited quantities, after it got Microsoft'ed.



    Be, Inc. and Hitachi created the Prius 1, and neat little desktop for the Japanese market. It was going to be a dual boot, Windows 98, BeOS box, with the 2 operating systems side by side. Before it shipped however, Microsoft evidently went in an played hardball, forcing the preload to be modified in such a way that the BeOS bootloader couldn't be displayed until after Windows was running, and even then it was buried in a menu in the programs folder of the start menu. Now considering that most users don't even know how to get to the calculator, this is pretty much a death knell. The deal fell apart a couple months later.



    Now I'm not an insider to either company, but I've been around the industry and I've had enough exposure to make an educated guess about what happened. It probably went something like this.



    1. Be makes press release announcing deal and is queitly nearing deals with at least one major US Vendor, probably Gateway or Compaq.

    2. MS low level staffer tasked with watching the press wire sees the announcement and shuffles it into the channel for 'handling'

    3. Hitachi and Be spend a month or so working out the technical details and prepare the machine for shipping.

    4. The press release finally gets to the upper management at MS and the marketing and account relations machine goes into action. Considering Hitachi's size and volume in the the Pacific Rim, Steve Ballmer gets on a the phone with Hitachi's president and explains the 'hidden' costs of this preload deal. Namely no more discounts on MS Office, and discounted price of Windows just tripled. And oh yeah, if you reread your contract the we signed with you, Windows boot process cannot be alter in these methods. You are going to have to do it our way.

    5. Hitachi cannot fight this in a market that is operating on increasingly tight margins.

    6. MS sends out a private reminder of the preload agreement's fine print regarding bootloaders and dual booting non Windows Operating Systems. This effectively closes the US Vendor deals and seals Be's fate.

    7. Be begins the 'Focus Shift', attempting to invade the only market left open to them.

    8. Be discovers that the market that appeared open to them has a couple of entrenched players, and one entering the market that has assets and marketing to kill them.

    9. Be runs low on cash and begins the liquidation process.

    10. Part of the exit strategy is to liquidate all assets and IP, then using the entity, sue the snot out of MS.

    11. This would pave the way for Palm or whomever to then invade the x86 market once again.



    On a side note, as brilliant as Apple's Mac OS X is, all the furor about bringing to x86 presents the exact same stumbling blocks, and make it therefore a 'Bad Idea' (tm).



    Andy Satori

    dru@druware.com

VMS is like a nightmare about RXS-11M.

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