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Microsoft Admonished by U.S. District Court Judge 178

Posted by ScuttleMonkey
from the tsk-tsk dept.
An anonymous reader writes "The Seattle Times reports that the judge in the z4 'product activation' patent infringement case has increased the jury's original $115 million verdict against Microsoft by $25 million. Both Microsoft and Autodesk (another defendant) were admonished by the judge for misconduct. The judge wrote 'The Court concludes that Defendants attempted to bury the relevant 107 exhibits ... in a massive pile of decoys' and called one failure to disclose evidence 'an intentional attempt by Defendants to mislead z4 and this Court.'"
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Microsoft Admonished by U.S. District Court Judge

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  • by Whiney Mac Fanboy (963289) * <whineymacfanboy@gmail.com> on Wednesday August 23, 2006 @09:49AM (#15962059) Homepage Journal
    MS acting unethically? Willfully infringing on the patents of a small company? Engaging in litigation misconduct? Attemping to mislead the court?

    I think Microsoft needs to read their own Put it in writing: Your business has ethics [microsoft.com] - particularly point 8:

    Live it from the top down. It's critical that no one person in a company ever appears to be above a code of ethics. That means it's particularly important that executives and top managers also adhere to the guidelines of an ethics code. If managers say one thing but do something else, that's nothing more than a license for the rest of the company to follow suit. "Good role modeling by top managers is a must," Swanson says. "Without it, ethics codes can be seen as mere window dressing."

    You ever read that Steve or Bill?

    Mind you - I'm not exactly on z4's 'side' here - I don't like software patents (and it doesn't look like z4 have a product, but rather are an 'IP' company). That said however, live by the sword, die by the sword hey MS? Want to enforce your FAT patents? Expect more of this sort of shit in the future.
    • Re: (Score:2, Funny)

      by schon (31600)
      You're misreading it...

      It's critical that no one person in a company ever appears to be above a code of ethics.

      Maybe MS's code of ethics doesn't cover lying and theiving...

      Or maybe they're planning on adding it in MS Ethics 2.0.
      • by struppi (576767) <`ten.fpuhlgug' `ta' `ippurts'> on Wednesday August 23, 2006 @10:16AM (#15962271) Homepage

        After installing update 919951 which patched a critical vulnerability in MS Ethics 1.0 service pack 1 some customers have reported problems when MS Ethics fails to detect lying and/or theiving. Microsoft has announced a new version of security update 919951 on August 22, 2006. This new version was to address this problem for customers who use MS Ethics 2.0 Service Pack 1.

        Microsoft is also aware of public reports that this issue could lead to a buffer overrun condition for customers who use MS Ethics 2.0 Service Pack 1 and who have applied security update 918899. We are not aware of attacks that try to use the reported vulnerability at this point, nor are we aware of customer impact at this point. Microsoft is aggressively investigating the public reports.

        -- original source: Internet Explorer 6 Service Pack 1 unexpectedly exits after you install the 918899 update http://support.microsoft.com/kb/923762/en-us [microsoft.com]

      • MS Ethics for Workgroups 3.11
        • Re: (Score:3, Funny)

          by MECC (8478) *
          Microsoft - mislead a judge?!?!?

          Preposterous!! Never in a million (well okay, ten) years!!

      • Re: (Score:2, Funny)

        by Anonymous Coward
        Or maybe they're planning on adding it in MS Ethics 2.0.

        Now you're just being silly.

        Everyone knows that you should always wait for version 3 of any Microsoft product.
      • by truthsearch (249536) on Wednesday August 23, 2006 @10:44AM (#15962462) Homepage Journal
        Maybe MS's code of ethics doesn't cover lying and theiving...

        That's not a bug in their code. It's a feature.
      • I can see it now...


        NEW Microsoft Ethics 2.0! It's fully featured with an all new "don't lie" format, and add those little extra touches with the "don't steal things" toolbar.

        And to make your ethical decisions simpler... use Clippy, the Ethics 2.0 help agent!
      • by rizole (666389) <`moc.liamg' `ta' `elozir'> on Wednesday August 23, 2006 @12:01PM (#15963082) Homepage
        I read it like this:

        It's critical that no one person in a company ever appears to be above a code of ethics

        It's okay to have no ethics, as long as no one notices.

        • by hey! (33014)
          It's okay to have no ethics, as long as no one notices.

          Well, appearances are important. And in fact thinking about appearances is a way of looking at your behavior from other people's perspectives.

          It's when you slip from managing your behavior to produce an appearance to managing appearances directly that you lose your way.

          For example, the Catholic Church has a rule that clergy should not bring the Church into disrepute. What this means is that they shouldn't do anything that would be shameful if brought
      • by binkzz (779594)
        "You're misreading it...

        It's critical that no one person in a company ever appears to be above a code of ethics.


        " Nono, I think you're misreading it:

        It's critical that no one person in a company ever appears to be above a code of ethics.

      • It's critical that no one person in a company ever appears [emphasis mine] to be above a code of ethics.

        What it really means is: DON'T GET CAUGHT LYING, CHEATING, BREAKING LAWS, etc.
    • You ever read that Steve or Bill?

      Did you miss that this article is directed at the leadership of small businesses?

      Bill and Steve have nothing to do with it.

    • by babbling (952366)
      This sort of thing needs to happen more often to Microsoft. They need to be turned against software patents.
    • by toopc (32927)
      I thought software patents were bad?

      And for anbybody searching - Autodesk - someone had to mention them here on Slashdot.

  • by TheLink (130905) on Wednesday August 23, 2006 @09:52AM (#15962075) Journal
    Even if MS gets burnt by them doesn't make them good.

    Plus "product activation" must have been reinvented a million times or something.

    That said MS deserves to get smacked if they try to mess about with the courts.
    • by crucini (98210)
      If a court convicts Bob of infringing Alice's yodeling patent, this does not mean Alice invented yodeling. It means Alice invented a specific technique of yodeling and Bob used the technique.
    • by jonwil (467024)
      That reminds me of the scene in Ghostbusters 2 where some chairs get thrown at a nasty judge by some ghosts.

      So yeah, I guess chairs CAN be thrown in a courtroom :)
  • by krell (896769) on Wednesday August 23, 2006 @09:53AM (#15962090) Journal
    "judge wrote 'The Court concludes that Defendants attempted to bury the relevant 107 exhibits ... in a massive pile of decoys'

    I see that Microsoft is still retaining Elmer F.U.D. for his legal services.
  • Hopefully these sorts of legal problems will discorage other companies from using annoying anti-customer "activation" schemes...
  • by pottymouth (61296) on Wednesday August 23, 2006 @09:56AM (#15962116)

    I'm sure with for a few extra bucks MS can buy whatever legal resources (including judges, prosecutors, congressmen, lobbyists) it needs to make it all better. Ain't it great living in a society where money rules all....

    "Money's like honey, my little sonny, and a rich man's joke is always funny"
    • by Red Flayer (890720) on Wednesday August 23, 2006 @10:32AM (#15962374) Journal
      I'm sure with for a few extra bucks MS can buy whatever legal resources (including judges, prosecutors, congressmen, lobbyists) it needs to make it all better. Ain't it great living in a society where money rules all....
      Funny how this system is so similar to the political/economic situations of nations of post-Colonial Africa, down to the massive trade imbalances, dependence on foreign loans, and abuse of power to make more money. The monied interests in the US are taking the money while they can, because there will be nothing left to take in 10-20 years... hell, even mainstream economists are estimating that US Treasury Securities will be considered junk bonds in the next 20-30 years.
      • by dave562 (969951)
        hell, even mainstream economists are estimating that US Treasury Securities will be considered junk bonds in the next 20-30 years.

        Can you share anything to back up that statement?

        • by Red Flayer (890720) on Wednesday August 23, 2006 @11:53AM (#15963017) Journal
          Here's (pdf) [stlouisfed.org] a tidbit. HTML version [64.233.187.104]

          Believe me, Kolitkoff is not alone in his predictions, though of course the US could take action to forestall the bankruptcy and reneging on its debts.

          Look to Anjan Thakor (Olin School of Business) to discuss Kotlikoff's paper in the next Federal Reserve Bank of St. Louis Review.
          • by jelle (14827)
            I'm not an economist, but when somebody argues that adding a 33% tax will stave off economic problems, I can't help but doubt their credentials (short summary: it won't have the effect the author thinks it will, in neither of both intended ways (simplification and taxation on spending versus earning)).

            I'm not saying everything is fine and dandy, but the article does not contain the answer.
        • by NaDrew (561847)

          hell, even mainstream economists are estimating that US Treasury Securities will be considered junk bonds in the next 20-30 years.

          Can you share anything to back up that statement?

          Sure. Bush: Social Security trust fund just IOUs [msn.com]

          Note that the Social Security trust fund is comprised of US Treasuries. So while "mainstream economists" may not be saying this, our democratically elected government is certainly doing so.

          • by terrymr (316118) *
            Yes I was amazed the market for treasury bonds didn't crash over night when the president called them "Just IOUs"
      • hell, even mainstream economists are estimating that US Treasury Securities will be considered junk bonds in the next 20-30 years.

        Great! I always had a historical interest in Weimar-era Germany. Now, I get to experience it first hand!

        Seriously, though, I would be interested if you could cite an article or two. I actually agree with you from what I can see myself, but I would like to know what others have written on the subject.

      • Re: (Score:3, Insightful)

        You know what, I'm getting tired of this college-dorm-room Slashdot mindset that declares, as if based on research or experience, that all judges, prosecutors, and congressmen are bought and paid for and that money rules all. There is no evidence to back that, and in fact, we have the least corrupt legal system in the world. Our system sees more prosecutions for crimes than even the U.K. So could we please stop with the lame +5 upmodded throwaway comments about how evil and corrupt you think the American
    • Re: (Score:3, Informative)

      by Pollardito (781263)
      in this case it looks like $25M is the amount of money that "makes it all better", members of congress might charge more than that anyway
  • by Weaselmancer (533834) on Wednesday August 23, 2006 @10:06AM (#15962203)

    He cited several examples in which the defendants failed to fully and promptly disclose evidence, calling one instance "an intentional attempt by Defendants to mislead z4 and this Court."

    Ok, so if this is an actionable item - why hasn't SCO been nailed with something similar? They've been doing the smoke and mirrors thing for years now.

    What gives? Why can a judge nail MS with this, but not SCO?

    • by tbannist (230135)
      Apparently SCO is much better at the smoke and mirrors game. Also, Microsoft actually did infringe on the patent (regardless of the value of the patent) so it's much easier to get a judgement for specific claims that are trivially proven true, than to get one against nebulous constantly-shifting claims that are individually difficult to disprove. SCO should have a rather large slap down coming. I expect no less than "pay the defendants legal costs" which at this point may be more than the judgement again
    • Re: (Score:3, Informative)

      by jackbird (721605)
      Roughly 2/3 of SCO's claims were recently thrown out by the magistrate judge for lack of disclosure - they have been nailed for something similar.

      And when IBM's Lanham Act counterclaims start being litigated, there will be much wailing and gnashing of teeth in Lindon. For now, the judges are bending over backwards and then some to make the case appeal-proof.

    • by asuffield (111848)
      There's numerous peripheral reasons... but mostly, the legal system is just very slow to begin with, and SCO's lawyers have been delaying the case as much as they possibly can. They probably can eventually get penalised like this, but it won't be seriously considered for a long time yet (maybe next year, maybe the year after).
  • The defendants marked 3,449 exhibits, but only admitted 107 of them at trial.

    Does the defendant have to say "Your Honor, I'd like to admit exhibit X into the court records as evidence" for each one? That would be a long trial, even if only 107 were admitted!
    • by jkabbe (631234)
      Does the defendant have to say "Your Honor, I'd like to admit exhibit X into the court records as evidence" for each one? That would be a long trial, even if only 107 were admitted!

      Typically yes. The attorney will also have to lay foundation for the exhibit, asking questions of the witness to establish what the exhibit is and why the witness would know something about it. Putting an exhibit into evidence might only take a minute or two. For 107 exhibits would probably be as little as 2-3 hours total. No
    • Re: (Score:3, Informative)

      by kilgortrout (674919)
      In federal court, each side submits a pretrial statement to the court listing, among other things, the exhibits they intend to introduce at trial. Most of the time, the parties stipulate to the admissibility of most exhibits, or at least to the authenticity of the document exhibits in order to streamline the proceedings. These things are generally not in dispute and the court leans pretty heavy on the parties to enter into these stipulations unless there is a genuine dispute. Absent a stipulation, you must
  • Ooh, the irony (Score:3, Insightful)

    by zoeblade (600058) on Wednesday August 23, 2006 @10:10AM (#15962230) Homepage
    So a large corporation has ripped off a small company's software, which was specifically designed to stop people ripping off software. Somehow I doubt individuals sharing software is as big a threat as corporations cloning it.
    • Re: (Score:2, Informative)

      by Haeleth (414428)
      So a large corporation has ripped off a small company's software, which was specifically designed to stop people ripping off software.

      No, a large corporation has infringed on a small company's patent. The small company doesn't appear to actually produce any software or other tangible products; they just claim to own a bunch of ideas.

      The software in question was written wholly by Microsoft, and probably without reference to anything owned or produced by z4 at all. Unfortunately for Microsoft, ignorance of
  • Yet again... (Score:5, Insightful)

    by Red Flayer (890720) on Wednesday August 23, 2006 @10:18AM (#15962283) Journal
    We see that MS (and they are not alone in this) regard the law as something to be circumvented, something to play games with. Law is not absolute to them -- any risk of punishment is exactly that -- a possible risk to be weighed against the potential returns of a strategy or action.

    Props to the judge for calling MS on its shenanigans; jeers for the penalty being insignificant to them.

    These actions by MS are indicative of the collapse of the rule of law in the US. Without meaningful punishments for attempting to circumvent the laws and/or undermine the legal process, it will not change. $25MM is hardly a disincentive for MS.

    IMO, the lawyers who used the obfuscatory tactic should be disbarred... and personally fined for contempt of court. And the executive(s) who authorized the tactic (or were responsible for the law team) should also be personally fined. And production of MS products should be halted until they can prove they are not still abusing the patent (by providing their code, in entirety, for review by the justice system, with any relevant sections clearly denoted).
    • Re:Yet again... (Score:5, Insightful)

      by deviantphil (543645) on Wednesday August 23, 2006 @10:48AM (#15962489)

      IMO, the lawyers who used the obfuscatory tactic should be disbarred.

      At the very least they should be referred to the ethic's board in the jurisdiction. Another example of Corporate America (and their lawyers!) getting a slap on the wrists. Any other company sued by MS for infrindging patents would probably end up bankrupt by the fines (no less the court costs). $140M is a drop in the bucket for MS...much like $140 would be to me.

      • by Wylfing (144940)

        I agree that there is an imbalance in the treatment of "offenders" (civil or criminal) but that has always been the case. A black man who holds up a liquor store for $200 gets 5 years in jail, but a corporate executive who robs his company's shareholders for $40 million is likely to get no punishment at all.

        However, depite that, what we do not want is a rigid legal system in which "offenders" are "reliably" punished. It is supposed to be a highly flexible system that thwarts the potential tyrrany of both C

      • They should be cited for contempt, fined some amount that is a multiple of what they billed their client assembling the dishonest materials (ensuring they don't profit from the behavior and in fact lose money), removed from the case and possibly jailed if the behavior was particularly egregious.

        Most ethics boards for professions (law, medicine, etc) are just a BS screen to keep their members involved in theiving, drug use, sexual misconduct and other naughty behavior out of jail and not lose their professio
  • by denis-The-menace (471988) on Wednesday August 23, 2006 @10:28AM (#15962342)
    Software Patents should never have existed in the first place.
    They're basically patenting logic and Math equations.
    All it's doing is making patent law more profitable.
    Imagine how many lawyer would be out of work without Software Patents.
    Software Patents = Welfare for Lawyers
    • Re: (Score:2, Interesting)

      by 91degrees (207121)
      They're basically patenting logic and Math equations.

      So why is this any worse than patenting physical and chemical effects?
      • Or machines? Gears are just physical manifestations of equations and math, as is amply pointed out by any book Stephenson has ever written.
        • Or machines? Gears are just physical manifestations of equations and math

          The difference is that many things that are not patentable are treated as patentable simply by adding the words "by means of a computer" at the end. That probably sounds like exaggeration, but it is the literal truth. You can quite literally submit one patent to the examiner describing everything that happens without explicitly mentioning the computer, and it will be denied. Amend the patent by adding "by means of a computer" to each

          • The difference is that many things that are not patentable are treated as patentable simply by adding the words "by means of a computer" at the end

            To me, that's a problem with the patent system in general, not software patents specifically. I wouldn't throw the proverbial baby out with the 1-click patent.

      • by rolfwind (528248) on Wednesday August 23, 2006 @11:13AM (#15962672)
        I believe because you (used to) be able to only patent a specific implementation. Software patents is or comes too close to patenting the idea itself. Someone used to be free to build a better mousetrap, just not working exactly like the one you patented. Now the very idea of the mousetrap is effectively patented when we pursue software patents.

        The US has started to rest to much of its laurels on "Intellectual Property." Some intellectual property, you used to be able sell (books, music) and make money off it that way. This property was protected by copyright. So someone can make a book with a world like "Lord of the Rings" (and many have) or a game like Doom or music like (in same genre) Michael Jacksons - they just can't reproduced the original and claim it as theirs. Ideas and culture freely circulated around this way.

        Some intellectual property (University research, public domain data) you used to be able to share freely and it enriched the whole economy -- helped your company manufacture better things or things cheaper, etcetera.

        Patenting ideas themselves does nothing but stifle all innovation as ideas get owned. Common approaches to problems are now infinitely patentable to every new medium. Ad infinitum.

        The US (and the West) will perish under a burden of its own making if we continue down this path. Patents of this type punish the innovative companies and breed hyenas that do nothing but litigate the rest of us into submission and poverty.
        • I believe because you (used to) be able to only patent a specific implementation. Software patents is or comes too close to patenting the idea itself. Someone used to be free to build a better mousetrap, just not working exactly like the one you patented. Now the very idea of the mousetrap is effectively patented when we pursue software patents.

          That is generally true because of the ubiquity of computers. Patenting implementing an encryption algorithm in a computer is pretty much equivalent to patenting the
        • So someone can make a book with a world like "Lord of the Rings" (and many have) or a game like Doom or music like (in same genre) Michael Jacksons - they just can't reproduced the original and claim it as theirs.

          Funny you should use Lord of the Rings in a copyright example. The first US publication of LotR was in violation of copyright: Somebody ripped off a copy of an early version of the manuscript and took it to a US publisher, purporting to be doing so as an agent of Tolkein.

          Those editions are collec
  • Book 'Em (Score:3, Insightful)

    by Doc Ruby (173196) on Wednesday August 23, 2006 @10:30AM (#15962353) Homepage Journal
    Now that the z4 case is wrapped up, can we get that judge to take over the blatantly abusive SCO vs IBM case, and wind it up this weekend?
  • ... this won't stop the practice of product activation using the internet. The whole process makes it a pain in the ass to migrate to new hardware and, it could eventually render the software you paid for today unusable tomorrow once these companies decide to cut support for it. I'm just waiting for the day large numbers of people find their software suddenly refusing to run because the activation server never responds, or fails to recognize the software/serial number due to the older versions' databases be
  • $25m is like $0.25 to Microsoft. If he thinks it'll even matter to MSFT then he's not aware of Microsofts monopoly position and their profit levels. If he'd asked around, he would have known that $125 - $250 is the standard payoff for stealing someones tech. Playing 'games' in court is also SOP for these guys. And payoffs are probably even built into their budgets. You know, the Payola Dept. IMO.

    LoB
  • MS (Score:3, Interesting)

    by rice_burners_suck (243660) on Wednesday August 23, 2006 @12:10PM (#15963173)
    MS is always causing problems. How is it possible that a "small" company (in comparison to MS) like Apple is able to produce an incredible operating system and entire suites of applications for home, work, and pro, and it is incredibly stable, while MS, with significantly more resources and market share, and a more powerful position in the industry, cannot make something half as good?
    • Re: (Score:3, Interesting)

      by failure-man (870605)
      Apple a) gets a lot of code for free, b) has a small hardware set with tightly controlled drivers to support, and c) isn't afraid to break native API compatibility and shove users into a VM when they need to.
  • by rs232 (849320) on Wednesday August 23, 2006 @12:42PM (#15963446)
    I would be suprised if they didn't try and bury the relevant exhibits in a massive pile of decoys. They are lawyers after all. It's up to the plaintiff to unbury them.

    As for the patent it is of course totally uninventive, obvious, there is prior art and any skilled person would have come up the the same thing without reading the method [uspto.gov].

    A method and apparatus for securing software .. requiring .. a .. password obtained from the.. authorized representative of the software after exchanging registration information.
    When are they going to fix that crock known as the US patent system?
    • I would be suprised if they didn't try and bury the relevant exhibits in a massive pile of decoys. They are lawyers after all. It's up to the plaintiff to unbury them.

      There's a difference between volunteering damaging evidence and trying to bury it. You don't have to give the opposition additional help, but if you've been ordered to divulge something, you have to do it.

  • ok let's see, that $140 mil divided by Microsoft's cash on hand =
    underflow error

    nevermind.

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