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Microsoft Patents Software The Courts Your Rights Online

Dell Says Re-Imaging HDs a Burden If Word Banned 376

Posted by timothy
from the what-you're-used-to dept.
N!NJA writes "In an amicus curiae brief filed on Aug. 24, Dell asked the judge overseeing the Eastern District Court of Texas to reconsider its order blocking sales of Word, part of the original ruling in favor of Canadian software developer i4i. In the worst case, the brief argued, the injunction should be delayed by 120 days. 'The District Court's injunction of Microsoft Word will have an impact far beyond Microsoft,' Dell and HP wrote. 'Microsoft Word is ubiquitous among word processing software and is included on [redacted] computers sold by Dell.' 'If Microsoft is required to ship a revised version of Word in Dell's computers, a change would need to be made to Dell's images,' Dell wrote. 'Making such a change would require extensive time- and resource- consuming testing.' An addendum to the brief notes that it was authored in Microsoft Word, part of Office 2003."
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Dell Says Re-Imaging HDs a Burden If Word Banned

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  • by deprecated (86120) on Saturday August 29, 2009 @06:36PM (#29247199) Homepage Journal

    How is Dell's poor management of their imaging system anybody else's responsibility? 'Extensive testing' is just code for 'we are a bunch of conniving lazy ass middle managers who depend on our outsourced technicians to tell us what to do.'

  • by Anonymous Coward on Saturday August 29, 2009 @06:38PM (#29247217)

    I used to deploy OptiPlexes in an enterprise environment. SOP was:

    - Remove from box.
    - Start and assign computer name appropriate to asset tag.
    - Install Altiris client.
    - Install our image.

    There were a few users who got OptiPlexes before I started working there, and were quite adamant about keeping the Dell base image. I will say this with confidence: if Dell does any testing of its base images, I sure didn't see it. I'm not really sure if their image qualifies as an operating system--it was more of a Dell advertisement.

  • Poor excuses ... (Score:1, Interesting)

    by meist3r (1061628) on Saturday August 29, 2009 @06:42PM (#29247261)
    So two of the biggest hardware retailers in the world complain about how it's too boohoo complicated for them to change their OEM installation images that get automatically plastered onto every computer? No one does a manual install in the Dell or HP plants. The extensive time and resource consuming "testing" they're referring two most likely comes from the time they sit around their contracts testing how much Microsoft owes them now for this legal stunt. The most testing you'd have to do for this is to install an alternative on every model once and then you're good. I'mn not really aware of any hardware limitations that would prevent a word processor to run on any modern system.

    They should be forced to ship their machines with something like OpenOffice. Microsoft can't complain themselves but that would expose them for the jerks they are so they bully their OEM holders to do their legal poo-flinging. Pathetic, just as expected.
  • by je ne sais quoi (987177) on Saturday August 29, 2009 @07:04PM (#29247437)
    While I can understand your point, the thought that crossed my mind is that Dell is arguing that companies should be allowed to willfully neglect patents just so long they're important enough? That doesn't sound very fair to me.
  • Re:That's fine (Score:3, Interesting)

    by Brian Gordon (987471) on Saturday August 29, 2009 @07:15PM (#29247527)

    Given that Amazon.com "sells" some ebooks for $0

    What? That has nothing to do with anything

    Anyway, the injunction prohibits Microsoft from selling or importing. There's no reason that would enjoin Dell from selling their stock.

  • Re:That's fine (Score:5, Interesting)

    by Brian Gordon (987471) on Saturday August 29, 2009 @07:17PM (#29247541)

    "Stock" of course meaning copies of Word already under license, not shares of ownership. >_<

    In fact, since the licenses are already sold, Dell can probably keep selling Word through the end of their current contract..

  • Sue Microsoft (Score:0, Interesting)

    by Anonymous Coward on Saturday August 29, 2009 @07:29PM (#29247621)

    Question. Can the OEM sue Microsoft to recoup cost having to re-image and any others in order to comply?

  • by jackb_guppy (204733) on Saturday August 29, 2009 @07:33PM (#29247653)

    It does not seam to hard to meet the Judge's request/order...

    To help you build your business in today's challenging economic environment, Microsoft is offering a mail-in rebate on select Microsoft Office products that you purchase pre-installed on your new PC.
            None
            Microsoft® Office 2007 Basic and Adobe Acrobat 9.0 STD [add $149]
            Microsoft(TM) Office® Sm Business Ed 2007 -includes Publisher + Outlook 2007) Eligible for $50 Mail-in Rebate - MORE DETAILS [add $279]
            Microsoft(TM) Office® Professional 2007 Eligible for $100 Mail-in Rebate - MORE DETAILS [add $349]

    Just remove options 2-4. It seams that all of Dell's machines can be shipped with Office/Word.

  • by selven (1556643) on Saturday August 29, 2009 @07:45PM (#29247713)
    Dell is willingly in a partnership with a criminal. That road is not supposed to be a smooth one.
  • by Anonymous Brave Guy (457657) on Saturday August 29, 2009 @09:35PM (#29248303)

    This is an odd issue for the courts, as Microsoft did legitimately cheat I4I out (read the details), but on the flip side software patents are an unnecessary burden.

    This "odd issue" is an excellent situation for just about everyone not involved in the case, though.

    Firstly, arguably the biggest player in the software business is now on the wrong side of a software patents lawsuit, which is going to mean probably the most powerful legal team in the business is going to be looking for all sorts of arguments to get such patents overturned.

    Secondly, there are going to be some hard questions about what constitutes "copying" in the case of software, which the big players have been carefully avoiding answering in court for a very long time, for fear that the already dubious legal basis for their EULAs and reseller-based sales models will be invalidated. Answering those questions definitively cannot help but clarify a lot of the ambiguity surrounding those issues. Does the act of installing a piece of software for which you have already paid constitute making a copy? Does the mere act of running software already installed constitute making a copy? It's going to be very unpleasant for players like Dell and HP if the injunction stands, even for a few weeks, and those things are found to constitute making a copy. But if they're not making a copy for the purposes of this software patent-related case, then logically they can't be affected by copyright either, and EULAs fall apart.

    I wouldn't like to predict the outcome here, but I'm guessing some big players in our industry are going to be pretty upset one way or another. And given that consumers (and smaller players in the industry, for that matter) are almost always on the wrong side of status quo, hopefully that means we're all going to be pretty happy one way or another.

  • Re:That's fine (Score:3, Interesting)

    by MightyMartian (840721) on Saturday August 29, 2009 @10:19PM (#29248523) Journal

    The fucking patent is about embedding meta-data in XML, something has been done since the 1960s. The patent is a crock of shit. If the patent holders thought they had something, why did they feel compelled to take it to the most patent troll friendly court in the United States?

    As has been constantly pointed out, if this is a legitimate patent, then patenting CSS is legitimate. XML is an open standard with a built-in capacity for storing metadata. If every conceivable kind of metadata is now patentable, then we've entered a scary phase. I hope this company loses, Microsoft countersues and the owners and investors lose their shirts.

  • by jedidiah (1196) on Saturday August 29, 2009 @10:57PM (#29248699) Homepage

    You might find the term inconvenient but it is essentially accurate.

    While not precisely correct for technical reasons, "convicted monopolist" is entirely accurate.

    They were found to have a monopoly and to have abused that monopoly on numerous occasions.

    It's a useful shorthand to avoid overly technical jargon that would primarily serve as euphemism.

  • by rohan972 (880586) on Saturday August 29, 2009 @10:59PM (#29248705)

    While true, it's also explicitly one of the factors that go into determining whether injunctions should be issued--- they're discretionary relief that is supposed to take into account any hardship the injunction might cause to nonparties.

    Is a business that is a MS partner a nonparty? I know they aren't involved in the lawsuit, but they are certainly involved in the distribution of the unlicensed product. Why should they have no hardship, since they profit from the patent infringement?

    The judgement went against MS. All they have to do is license the patent from i4i. If they win the appeal, they can stop paying. If they haven't even tried to come to a licensing agreement with i4i, no court should even listen to them about lifting the injunction. What is being claimed is effectively that MS (and partners) will suffer hardship if they don't pay their bills. No shit! The obvious solution would be to pay the bill, and for Dell to sue MS for losses incurred due to their illegal practices if they don't.

  • Re:That's fine (Score:5, Interesting)

    by AmberBlackCat (829689) on Saturday August 29, 2009 @11:41PM (#29248911)
    What I don't get is, last time I was on Dell's site, it let you configure a computer system. The exact same system offering Microsoft Office could be configured with WordPerfect and I think they had an option of no office suite at all. That means they have images with WordPerfect and images with no office suite. So, would it kill them to just use one of the images they already have instead of complaining that they have to make a new one?
  • Re:That's fine (Score:3, Interesting)

    by Chaos Incarnate (772793) on Sunday August 30, 2009 @12:14AM (#29249077) Homepage
    At least previously, they only offered that on some of their machines. And their complaint isn't about using one of the other images, it's that they would need to update their existing Word one with the new version. At a minimum you're talking creating one image per motherboard design, so several dozen, plus you probably *should* be testing it with the various configurations of each.
  • by Anonymous Coward on Sunday August 30, 2009 @01:03AM (#29249279)

    I can't help but think that if it were open office in microsofts situation that you and most of the slashbots would change their mind quickly. Think with your head.

  • by rohan972 (880586) on Sunday August 30, 2009 @02:35AM (#29249643)

    aren't /. readers against this abuse of the patent system?

    Yes

    Very bad idea, even if its just Microsoft.

    He who lives by the sword will die by the sword. Just like most of us don't agree with murder but don't shed a tear if a mercenary gets killed in action.

    Software patents shouldn't be considered valid but MS has lobbied and argued for them so it is justice for them to be harmed by them.

  • Re:That's fine (Score:3, Interesting)

    by Tom (822) on Sunday August 30, 2009 @03:21AM (#29249813) Homepage Journal

    All of this is absurd. There is no "undue" harm or burden on Dell or HP here. I speak as someone that worked in dell's testing lab for more than a year creating these images. It would be TRIVIAL for dell to make new images and put them into production.

    Where's your letter to the court pointing that out, with references?

    Last I checked, intentionally lying to the court could get you into serious trouble. If what you say is true, you have a duty as a citizen to point this blatant lie out to the judge, with details, and let him rip Dell a new one.

  • Re:That's fine (Score:3, Interesting)

    by WaywardGeek (1480513) on Sunday August 30, 2009 @03:48AM (#29249893) Journal

    I4I said they would have sued sooner but were having financial problems.

    I checked out the i4i web site. My impression is that i4i had financial problems because they were a dinky little company with almost no significant products. I suspect they had no more than one software developer, and were probably lucky to stay in business all this time. I doubt MS even bothered to ever meet with them. Their business, so far as I can tell, doesn't even significantly benefit from the patented idea, and in no way competes with Microsoft. I don't see how Microsoft's patent infringement hurt them in the least.

    In other words, i4i is simply patent-trolling. A lot of tiny companies do this when they have hard times.

    Would it be MS who said "well, we had a business meeting with them, lets implement their plan without them and run them out of business"?

    Yes, this is the traditional Microsoft business strategy. There are lots of cases where they did this:

    - These guys were the disk-compression company MS drove under. They won $120M [latimes.com] in a lawsuit considered one of the best examples ever of how software patents can protect innovation.
    - Casualties include WordPerfect, and QuattroPro [itjungle.com]

    There are also a lot of patent trolls sucking the life out of Microsoft:

    - They were ordered to pay $521M [geek.com] to the "inventor" of browser plug-ins
    - They were ordered to pay $367M [infoworld.com] to Alcatel/Lucent in some sort of user interface patent nonsense.
    - They were ordered to pay $388M [efluxmedia.com] to Uniloc, for a patent about registering software during installation.
    - Korea is one of the few other countries to jump on the patent-troll suck-life-out-of-MS bandwagon. [crn.com]

    All I can say is Microsoft made their bed, and now they have to sleep in it. No other company did more to force software patents through congress. D'oh!

  • Re:That's fine (Score:3, Interesting)

    by WaywardGeek (1480513) on Sunday August 30, 2009 @04:06AM (#29249957) Journal

    [rant]
    A bit more on the software patent crud we have to deal with today:

    - Microsoft and others stifle innovation and competition through an immense patent portfolio and an angry mob of lawyers. It's no longer easy to build a good product and make money, because MS will come and sue you, while stealing your idea and driving you out of business with monopolistic power.
    - As a result, the one of the best ways to make money as an innovator is to file several stupid patents, and wait for Microsoft to violate one.

    Have you seen what MS is doing to Google lately? It's darned hard to make freaking Bing go away and to get Google as the default search engine in IE. Not hard for you and me, but Joe Sixpack doesn't custom-configure anything. I want to strangle someone every time Norton pops up to remind me to pay them their extortion fee. The only reason I allow Windows in my house is games. It's basically a gaming platform. That's also the only reason I ever see it at my work.
    [/rant]

    There. Now I feel better.

  • by Tom (822) on Sunday August 30, 2009 @11:17AM (#29251657) Homepage Journal

    But should they be held liable for the errors the software company they OEM for makes?

    No, and they aren't. Or did I miss the memo that tells Dell to pay penalties?

    They just simply lost their license to distribute Word, though not because MS terminated it, but because a court said that MS never had the right to license (this version of) it in the first place.

    but for small shops it would be an extra workload, driving up computer prices

    Yes. And the argument is what, exactly? Following the law is more expensive than not, so we should give companies some wiggle room? I don't exactly see how that's going to be a convincing argument.

    Should the OEM burden that cost completely?

    The cost of what, exactly?

    The cost that results from their process and procedure in creating the product that they sell? Hell, yes!
    If it really is so terribly difficult and expensive to remove a program from the image due to the way that Dell creates the images, then yes, it's Dells image, Dells process, Dells decision to create and implement this process, Dells failure to not have other options. I don't see who else should "burden that cost" as you say it. Who would you propose?

    Heck, if they have smart lawyers, their contracts with MS will allow them to recoup the extra costs from MS, since the party whose illegal activities have caused them damages is MS. Exactly the preconditions for a liability lawsuit.

    They now have a heavy lever to pull on MS if ever there was one.

    Are they going to pull it? Not if MS can just up their OEM license costs at the next opportunity. You never have a heavy lever against a monopoly provider, that's one of the reasons we don't want monopolies, you know?

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