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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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  • That's fine (Score:2, Insightful)

    by ubrgeek (679399)
    So ship it but don't charge for the license.
    • Re:That's fine (Score:5, Informative)

      by bkpark (1253468) on Saturday August 29, 2009 @06:32PM (#29247171) Homepage

      Except that's not what the injunction says. The quotes I can find [mckoolsmith.com] say:

      Today's permanent injunction prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML.

      Given that Amazon.com "sells" some ebooks for $0, I doubt that shipping Word without charging for the license would pass the "selling or importing" ban.

      The injunction itself needs to be modified, and given the case Dell and HP make here, it seems like the original injunction was poorly thought out in terms of unintended consequences.

      • Re: (Score:3, Interesting)

        by Brian Gordon (987471)

        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..

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

          by jbengt (874751) on Saturday August 29, 2009 @09:42PM (#29248345)

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

          It's doubtful that Dell has a pre-bought stock of CDs to sell for the preloaded software that is the subject of of their brief. They probably pay MS quarterly or monthly on the number of copies they make. That would make any copies Dell preloads onto their machines new copies sold by Microsoft.

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

        by poetmatt (793785) on Saturday August 29, 2009 @07:54PM (#29247757) Journal

        No, the injunction was quite correct. Did you read what I4I said? They said they won't go after the existing copies, only new infringement. [slashdot.org]

        Who else do you think has power to enforce this other than the patent holder?

        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.

        • 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: (Score:3, Interesting)

          by MightyMartian (840721)

          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,

          • Re: (Score:3, Insightful)

            by WaywardGeek (1480513)

            I went and read the patent. It's actually about separating formatting from content. This is similar to CSS, but in this case, there would be no tags at all in the 'content' portion of the document at all. Instead, a 'metacode map' would be a code, like 'bold', and the start/stop address of the text affected. SFAIK, this is different than what other document formats do. I certainly haven't seen it before.

            However, I totally agree that this sort of patent is bogus, and scary. We should not be able to pat

    • Re: (Score:3, Insightful)

      by Z00L00K (682162)

      Don't preinstall the software, ship blank machines and separate media to be installed.

  • by tyrione (134248) on Saturday August 29, 2009 @06:33PM (#29247173) Homepage
    That's par for the course when you become an OEM. Deal with it.
    • by Trepidity (597) <delirium-slashdot&hackish,org> on Saturday August 29, 2009 @06:48PM (#29247309)

      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.

      • 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.
        • by ClosedSource (238333) on Saturday August 29, 2009 @07:14PM (#29247511)

          This court decision is being appealed and Dell is arguing that the injunction should be withdrawn until the legal process has been completed.

          Third parties will be harmed while the patent holder isn't likely to see anyone buying their product instead of Word.

          • by hairyfeet (841228)
            What I don't get is why doesn't MSFT buy them out? Seems like it would be cheaper in the long run and less of a hassle just to buy the whole damned company than risk royally pissing off the OEMs (who might even get ticked off enough to ship OO.o instead) over such a small company compared to MSFT. Besides isn't Ballmer an Co sitting on a big old pile o' cash ATM? Seems it would be better spent on just buying the tech than wasting who knows what on lawyers and appeals, meanwhile if the injunction stands they
          • by Tom (822) on Sunday August 30, 2009 @03:17AM (#29249793) Homepage Journal

            Third parties will be harmed while the patent holder isn't likely to see anyone buying their product instead of Word.

            Which is not the point.

            As much as I dislike software patents, if there's ever been a clear case regarding them, this is it. MS partnered with i4i, took their technology and included it in their software without an agreement.

            The penalty for being caught with the hand in the cookie jar can not simply be that you now have to pay for the cookies. If it were, then trying theft first would be the rational choice. A penalty like "no more cookies for you, not even if you pay, plus penalties and paying for those you took so far" sounds about right.

            MS is a company with tons of spare cash, literally. Hitting them with a monetary penalty will make them laugh, and continue on their merry ways. Telling them to actually get their damn dirty fingers out of the cookie jar is what hurts them.
            Yes, and their partners who sold the cookies on to others. Poor fellows. I almost feel sorry for you. It's not as if anyone would ever think that MS might be a company that's anything but spotlessly clean and nothing like this could ever happen, and contingency plans would be entirely unnecessary.

            New Rule: If you put all your eggs in one basket, you don't have a right to cry if it falls.

      • Re: (Score:2, Interesting)

        by selven (1556643)
        Dell is willingly in a partnership with a criminal. That road is not supposed to be a smooth one.
        • so who are you talking about?

    • 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.

    • Re: (Score:3, Insightful)

      by porkThreeWays (895269)
      If someone steals a car, and I bought that car from the person, the original owner is still the owner of the car. If it's discovered that I have the car, I can't say "taking this car from me is really going to cramp my style." If the ruling is MS doesn't have the right to sell office, that's the ruling. Whether you agree with it or not, it must be enforced at all levels. Just because the ruling inconveniences others beyond MS has no bearing. They bought an "illegal" product.
      • by PRMan (959735)

        But patent lawsuits don't deprive anyone of anything. Much like illegal file sharing, nobody is deprived so it's not the same as buying a stolen car without knowing it.

        Patents are all about proper licensing, and as such, judges work very hard to punish only the guilty, and not the innocent bystander.

  • Heh (Score:5, Funny)

    by Rob Simpson (533360) on Saturday August 29, 2009 @06:34PM (#29247183)
    Not even Dell likes Office 2007.
  • BS (Score:3, Informative)

    by Pecisk (688001) on Saturday August 29, 2009 @06:37PM (#29247213)

    Of course it is BS, it is more or less doable, comparing to penalties which they will get themselves into if they won't comply. It's interesting that they just don't use 'lost sales' argument. It could have some consequences for Dell too?

    Anyway, this case is ugly as it can get about software patents. It is not traditional troll case, but still I don't like it - I don't like software patents at all.

  • 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.

    • by Anonymous Coward on Saturday August 29, 2009 @09:31PM (#29248275)
      I'll post as an AC since I no longer work for Dell.
      I think your customer rep needs a kick up his ass. I used to work in the Enterprise division of Dell earlier and (helped) developed Altiris plug-ins to deploy customer images. If your rep is selling you the consumer imaging tools and/or has not told you about how to deploy your config specific images from Dell's factory or deploy it using Altiris/3rd party plugins on a base image, he must be slacking off.
      That said, in many cases, what you are doing is the right thing. Wiping clean the base image and loading your own is often a simple way of keeping images/patch levels to corp standards and to comply with license agreements.
      Dell does try to make this process simple and they can provide you more tools to do your job better.
  • "all"?

    Maybe I'd better read the friendly article.

    • Re: (Score:3, Insightful)

      by reiisi (1211052)

      Okay, I read it.

      Can't figure out what they could have redacted that would have been more damaging than the fact of the redaction itself.

      If these briefs aren't filed as evidence against Microsoft in all the anti-monopoly actions, I'm wondering why.

      (And we can start calling assertion contrary to evidence when people say Microsoft doesn't manufacture computers, since it sounds like Dell is just a subsidiary of Microsoft.)

      • by Quothz (683368)

        (And we can start calling assertion contrary to evidence when people say Microsoft doesn't manufacture computers, since it sounds like Dell is just a subsidiary of Microsoft.)

        While Dell's claim is a bit ridiculous, I don't think that assertion follows. If I buy off-the-shelf Ace brand widgets to manufacture my Whatzidoodles, that doesn't make me a subsidiary of Ace.

      • Re:redacted word (Score:5, Insightful)

        by ClosedSource (238333) on Saturday August 29, 2009 @07:17PM (#29247547)

        It's most likely that Dell doesn't wish to publish their sales numbers outside of the normal reporting process, which isn't at all surprising.

  • Cut the bloat (Score:5, Insightful)

    by Zen Hash (1619759) on Saturday August 29, 2009 @06:44PM (#29247275)
    If they hadn't preloaded all of their images with free trials and bloatware then this wouldn't be a problem in the first place. When I have to setup one of their machines, the first thing I always do is reformat and build a new image anyway without all of the extra crap that shouldn't be there.
  • by allroy63 (571629) on Saturday August 29, 2009 @07:08PM (#29247471)
    Anyone who has visited the Dell website with any recency knows that Word is not bundled as a default "freebie-included-in-price" option. The default option is "No Productivity Software Added." Adding MS Works (which includes MS Word 2003) costs $79. So what's the "imaging" problem? Are we supposed to pretend this particular retailer, whose model is different from others because of user-customization options, is incapable of providing machines without a software option (particularly given that this is their default configuration?).... The place this impacts Dell the most I'd imagine is in relation to Enterprise level customers, and all those Colleges and Universities they are partners with --- who sell pre-configured machines with Word installed to their students. Of course, everyone has moved into their dorms in the next "120 days" and it's not like Enterprise customers in Canada won't deal with this from every PC retailer. I smell a rat.
    • Re: (Score:3, Informative)

      by jonbryce (703250)

      A 90 day trial version of MS Office is generally included in the default image.

  • The worlds tiniest violin, let me play a sad tune for you..

  • Dear Sir (Score:5, Funny)

    by fermion (181285) on Saturday August 29, 2009 @07:26PM (#29247595) Homepage Journal
    I am a small business owner that provides integrated computers systems and support to other small businesses. As part of the package I provide M!cr0s0ft Offices, supplied to me, with authenticity seals by M!cr0s0ft of China.

    Recently I was informed that Microsoft, USA, wants to put a restraining order on this perfectly legal software claiming that it is byte for byte copy of their suite of office products. While I disagree with this, for instance MS Office clearly uses ribbons, while M!cr0s0ft Offices uses menus, I realize that this is a decision for the courts.

    All I ask is that the restraining order be revoked. The only way I can provide value to my customers is that M!cr0s0ft provides a hard disk which I use to image all my other computers. I pay a license fee for each image, but otherwise the labor is very cheap. If I had to install each piece of software, or even create a new image, this would destroy my competitive advantage I have over the other bigger firms.

    Please, do not place an injunction against M!cr0s0ft. If the courts do find the software infringes on Microsoft product, then Microsoft can sueM!cr0s0ft and recover damages, and I will have time to find another supplier. If M!cr0s0ft is found not to be infringing, then you will be destroying a legitimate small business for no reason. I know the knee jerk reaction in this case is to assume culpability, but I assure you there are many differences between the two products, and M!cr0s0ft is not infringing. Trust me. I am the entrepreneurial backbone of this country.

  • by vxvxvxvx (745287) on Saturday August 29, 2009 @07:35PM (#29247665)
    With as much crap as Dell includes on it's default computers, certainly something is always in need of an update. They must have new images several times a year to keep the versions all current. One more image doesn't seem like such a big deal.
    • by Blakey Rat (99501) on Saturday August 29, 2009 @09:17PM (#29248199)

      People keep saying this on Slashdot, but have you ever bought a computer from HP? Compared to HP, and other computer retailers (most of them at least), Dell ships hardly any crapplications at all. In addition, Dell actually ships you a clean and working OS disk (with the crapplications on a completely different disk), HP puts both on the same disk making it impossible to reinstall your HP OS without also reinstalling the crapplications.

      In short, Dell's one of the absolute best when it comes to shipping clean OSes.

    • "Current" is a relative term. It takes months for a critical update to make it into Dell's system images. The latest batch of crippleware/shovelware, on the other hand, is certain to be included.

  • monopoly situation (Score:5, Insightful)

    by drDugan (219551) on Saturday August 29, 2009 @07:37PM (#29247675) Homepage

    "Dear Court:

    Providing a different option will be hard for us.
    Please provide us relief."

    Seems to me like this issue is exactly why monopolies are bad for consumers.

    The last PC I helped someone fix (bloated and slow, crippled with malware) didn't even
    come with system reinstall disks - they had to order and pay for them separately once the
    computer arrived. Oops!

  • I wish Dell redacted their computers....
  • by kregg (1619907)
    Maybe this is a wake up call for people relying on *.doc and *.docx
    • by Kawahee (901497)

      Because if OpenOffice was found to be infringing on this patent and Dell packaged OpenOffice instead your post would read "Maybe this is a wake up call for people relying on *.odt", right? And that your post would also have a question mark next time.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        1 although if you had been paying attention you would have seen that i4i stated that OpenOffice does not infringe on the patent.
        2 the odt format is a standard, not a product, not exclusively owned by OpenOffice. unlike Microsoft products, you could get other products to read/write that format

  • Blame the patents (Score:4, Insightful)

    by elashish14 (1302231) <profcalc4.gmail@com> on Saturday August 29, 2009 @07:52PM (#29247741)

    So now we see the far-reaching disaster that occurs when we enforce these stupid software patents - all the logistical nightmares, the impractical enforceability, the unwitting collateral damage, et cetera. Our greatest hope is that everything can blow up in everyone's face as big as possible with no real advantage to anyone in the end (that's right: dump as much spam in the fan as you can) and then we'll see how pointless it is to enforce software patents.

    • Re: (Score:3, Insightful)

      by Mista2 (1093071)

      Nope, just see what happend with RIM and the claim against them for using a mobile device that gets mail pushed to it from a server. A small patent holder was completly screwed over, and the main reason there was no injunction - lots of US government offices use Blackberrys and would have been "crippled" without them.
      The whole thing with the patent laws as they are enforced today is they are really only a way for the rich to keep somone else form joining them at the trough.

      Microsoft to TomTom - hey, you use

    • Re: (Score:3, Informative)

      by Animats (122034)

      So now we see the far-reaching disaster that occurs when we enforce these stupid software patents

      It could be worse. When Kodak lost a patent case against Polaroid in 1985, they were given 30 days to stop making film for instant cameras, exit the business, and buy back all retailer inventory. Which they did. Then they lost a class action suit and had to buy back the cameras already in consumer hands.

  • So a hardware manufacturer made a deal with a software manufacturer. That software has a problem and needs to be altered. Hardware manufacturer then says "yeah but that will cost us time, and time is money". Judge will hopefully say "Review your deal and next time make a better one to account for these kinds of things. For now, stop complaining and start re-imaging disks".

    • I don't know what the outcome will be, but I doubt that the judge will be reading from the anti-MS playbook.

      • by Errtu76 (776778)

        I don't know what the outcome will be, but I doubt that the judge will be reading from the anti-MS playbook.

        what anti-MS playbook? This could be any software manufacturer. The point is that the previous ruling has nothing to do with hardware manufacturers. It's like saying to an engine manufacturer they can't use one type of bolt anymore. Then car manufacturers will complain saying they already implemented the entire engine and can't replace the offending bolt without taking out the entire engine and rebuild it.

        • Remember, this is just a request to temporarily stop enforcement of the trial courts order until the appeal process is finished. Any party has the right to file such a brief and if they can show that the injunction harms them more than the delay harms the party who won the original case it's perfectly reasonable.

          The final word on this case won't be decided based on the harm it may cause to Dell or HP.

  • Boo Hoo (Score:3, Insightful)

    by pembo13 (770295) on Saturday August 29, 2009 @08:02PM (#29247793) Homepage

    Removing all the OEM crap is a burden as well

  • Why not just make Microsoft compensate Dell for the extra work and expense required to change the images?

  • by Feanturi (99866) on Saturday August 29, 2009 @08:47PM (#29248049)
    When Microsoft decides it's time to get more money and releases a new version of Office, as they have done several times in the past, does Dell charge them for having to change their image again? What about major OS service packs? They re-image for those too. It's part of their business. How is this any different from what would happen if MS released Office 2010?
    • by Sfing_ter (99478)

      Obviously M$ is pushing the oems to whine - and Dell being a Boy-Howdy TEXASS company, well that may just make the judge changed his mind... ya'll.

  • Can someone explain to me how a company can ask a judge to not apply the law for purely commercial reasons?
    Why not let proven big drug dealers go free because they fuel the economy while they're at it?

  • Are software patents suddenly OK when MS gets stuck? I wouldn't use their 'copy-ware' myself but still aren't /. readers against this abuse
    of the patent system? There is a bigger story, but the press just haven't seen it yet. I think some of us know where the prior art is anyway for this idea that isn't patentable. Will Apple bring back 'look and feel' suits? Very bad idea, even if its just Microsoft.

  • causation (Score:3, Insightful)

    by Tom (822) on Sunday August 30, 2009 @03:07AM (#29249755) Homepage Journal

    'Making such a change would require extensive time- and resource- consuming testing.'

    Self-made problem, I'd say. If your procedures can't handle the process of removing a piece of software, or replacing it with a newer version of itself, then your procedures suck. We're not talking about a kernel change here, are we?

    Seriously? Car anology? "Dear Sirs, unfortunately, removing the radio is so much work, we'd have to remodel our entire factory."

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