No, Having To Pay To Downgrade From Vista To XP Is Not An Antitrust Violation

from the that's-not-how-it-works dept

Last year we noted that while it was amusing to see a lawsuit from someone angry that they had to pay to downgrade from Vista to XP on their computer, it was hard to see how it was an antitrust violation, as the lawsuit was alleging. As we joked, perhaps that could be Microsoft's new business model: keep coming out with worse and worse operating systems, but charge people more and more to stick with the older systems. Either way, as we expected, that lawsuit didn't last long and was recently thrown out. As the court found, there was no evidence that Microsoft actually benefited from users downgrading. It seems pretty clear that Microsoft has always wanted people to sign up for its latest operating systems, and it would greatly prefer that over anyone (paying or not) downgrading to older versions. It also turned out that the "fee" the woman who brought the lawsuit paid was not to Microsoft, but to the computer manufacturer (in that case, Lenovo). In fact, the court pointed out that, technically, Microsoft gave a "free" extra operating system with the deal, since the buyer received both Vista and XP, at no additional revenue to Microsoft.

Filed Under: antitrust, downgrades, vista, xp
Companies: lenovo, microsoft

Network Solutions Confused About The DMCA

from the that's-not-how-it-works dept

Last week we wrote about how Microsoft abused the DMCA to force Cryptome offline via Network Solutions. Since then, there's been some interesting scrambling by all parties involved. Mircorosft claimed that it never meant to take Cryptome down entirely, just the one document (though, it no longer is asking for it to be taken down). But that doesn't make much sense, because Network Solutions only had the ability to take down the whole site, not pieces of content. Either way, what really confused us was Network Solutions response to the DMCA takedown, which was that it waited until Cryptome filed a counternotice to take down the site. That's not how the DMCA works.

Yet, in a blog post sent over by Achura, Network Solutions tries to provide a "layperson's guide" to the DMCA. The only problem is that they get it wrong.

First, Network Solutions seems to think that the DMCA provides for a "notice-and-notice" system of dealing with takedowns, whereby it needs to first notify the user and wait for them to respond. Unfortunately, the DMCA does not follow such a procedure. It would be much better if it did. However, the DMCA is a "notice-and-takedown" setup, whereby the service provider who receives the notice needs to first take down the content, if it wishes to retain its safe harbor protections. It can choose not to take the content down (though, that rarely happens), but it risks losing the safe harbor protections. As the law itself clearly states:

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So NetSol is wrong to claim that they first need to notify the user and wait for the response.

Second, NetSol is then wrong in how it responds to a counternotice from the user. It claims:

If the customer challenges the Notice by submitting a Counter Notification that complies with the DMCA, the Host is required to disable access to the allegedly infringing site for a period of "not less than 10 business days, nor [sic] more than 14 business days" (the "Challenge Time Period").

Again, this appears to be incorrect. If it had been following the DMCA, it should have already taken the content down to retain safe harbors. It makes no sense to say once the counternotice is sent then you take down the content. Instead, the no less than 10 days/no more than 14 days refers to how much time the service provider is supposed to wait before putting the content back that it already took down. Of course, given that NetSol was confused about the notice-and-takedown process, you could see why it felt the need to take the content down after the counternotice -- because that's the point that it realizes it was legally supposed to take the content down earlier.

Filed Under: copyright, counternotice, dmca, takedowns
Companies: cryptome, microsoft, network solutions

Microsoft Uses DMCA To Force Cryptome Offline

from the abuse-of-dmca dept

You may recall late last year we wrote about how Yahoo got upset about the security website Cryptome publishing their "surveillance guide," which details the process (and prices) for law enforcement to request information from Yahoo. Yahoo got upset and issued a DMCA takedown notice, which Cryptome fought. Cryptome has published similar documents from a variety of companies. Recently, for example, it published one from Microsoft, and... once again it's faced with a DMCA takedown. Microsoft sent the DMCA takedown to Network Solutions who refused to stand up for Cryptome, leading to the site being taken offline. Even worse, Network Solutions didn't even wait until its self-imposed deadline to take down the site. As soon as Cryptome filed a counternotice (which would actually give NetSol a reason to keep the site up), NetSol took the site down.

This is a massive abuse of the DMCA takedown process by Microsoft. The DMCA is designed to stop people from sharing copyrighted information not for the purpose of hiding documents -- and especially not for the purpose of trying to suppress the release of important information.

Furthermore, this kind of move has only served to do one thing: call much more attention to Microsoft's surveillance guide, which, yes, is now much more widely available. On top of that, it's made clear that Network Solutions will immediately buckle under DMCA threats -- so if they're your register, perhaps it's time to look elsewhere. Microsoft is a company that should know better than to abuse the DMCA to stifle free speech, and it seems quite likely that they will end up regretting this decision.

Update: And, of course, now that they've drawn much more attention to the whole thing, Microsoft has withdrawn the takedown.

Filed Under: copyright, dmca, security
Companies: cryptome, microsoft

Amazon Has To Pay Microsoft To Use Linux?

from the fud-fud-fud-fud dept

Every few years, Microsoft tries to convince the world that Linux violates its patents. Usually the company gives some arbitrary number of patents. However, when asked to show proof, the company goes quiet. It's the usual FUD. Last year was the first time the issue ever actually showed up in a lawsuit, when Microsoft sued TomTom, but for the most part, it's still not clear what about Linux infringes on Microsoft patents. Still, that doesn't mean Microsoft can't use such FUD to get others to pay up. The latest is that Amazon and Microsoft have done a patent cross-licensing deal. These sorts of "we won't sue you, if you don't sue us" deals are pretty common in the tech world, and hardly noteworthy, other than the fact that apparently some of the patents Amazon are getting protected against being sued over -- concern how it uses Linux:

The deal covers both Amazon's Kindle product as well as the company's use of Linux-based servers.

Even though it's a straight cross-licensing deal, it doesn't sound like any money changed hands, Amazon still had to pay cash to Microsoft, on top of effectively paying more by licensing its own patents. It does seem pretty problematic, doesn't it, when a company has to "pay" Microsoft (whether in cash or via licenses to its own patents) just to use Linux? Perhaps it's time to redefine the "Microsoft tax."

Filed Under: linux, patents
Companies: amazon, microsoft

AdWords Collections Attempt By Google Mutates Into Antitrust Lawsuit

from the didn't-expect-that,-did-you.. dept

Last year, we wrote about an odd antitrust lawsuit against Google by a company named TradeComet. The lawsuit was a joke. Basically, the company was an arbitrage player that tried to create spam-like pages that people would find on Google searches, and would make money by then getting people to click on pay-per-click ad links to get where they really wanted to go. Google properly classifies sites like this as spam, and its ranking methodology punished the site accordingly. It had nothing to do with being "anti-competitive," it was just Google making sure its search results were better for users. That lawsuit is basically in a holding pattern right now, as the judge considers Google's motion to dismiss.

However, a similar lawsuit has popped up, and it's a bit strange. Eric Goldman has all the murky details, of how a shopping search engine named myTriggers apparently got a line of credit from Google and used it to buy a bunch of AdWords search ads to drive traffic to its site (and then raised money based on the resulting traffic). Once again, Google rejiggered its algorithm, and suddenly the ads for myTriggers were a lot more expensive (by one to two orders of magnitude). The company couldn't pay its bill to Google, so Google hired a local lawyer (in Ohio) and went to court to try to get myTriggers to pay the $335,000 it owed. Simple enough.

Except that myTriggers returned fire by claiming antitrust violations by Google, and even went out and hired three separate lawfirms, including (conspiracy theory time) the same law firm that represented TradeComet and which is closely connected to Microsoft. As Goldman notes:

I am struggling to make sense of myTriggers' litigation choices. Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Goldman also notes that Google probably wishes it hadn't filed a claim in a local Ohio state court, as the antitrust battle might now need to be fought there, rather than in a friendlier federal court closer to home:

Whatever the case, I suspect the antitrust claims caught Google flat-footed. A simple and low-stakes collections matter has blown up into a potentially significant lawsuit in an undesirable forum. Google chose Ohio state court for the collections matter despite its AdWords contract, so now it will have a tough time extricating itself from that court. But I suspect it would rather have an antitrust case in federal court, not state court--often (but not always) federal judges are more sophisticated than state judges and less susceptible to hometown bias. And I'm sure Google would rather fight antitrust claims on one of the coasts than in the Rust Belt, especially if myTriggers argues that Google's evilness cost Ohioans jobs. Google probably didn't mean to offer battle in this venue, but someone did a really good job of seizing the opportunity and forcing Google to fight the battle in a suboptimal setting.

As with the TradeComet case, the antitrust claim from myTriggers sounds incredibly weak, and it probably should be thrown out, but given the uncertainties of it being filed in the local court, Google may have to take it a bit more seriously. And, of course, the possibility of a secret Microsoft connection makes this even more interesting. Still, I can't see this getting that far in the long run. I hope that the judge recognizes the basic weaknesses of the case: here's a company that relied entirely on a single supplier who had every right to change its policies if it felt it didn't deliver a good customer experience, and it did so. myTriggers now seems to be suing as some sort of sour grapes for its own business failings.

Filed Under: adwords, antitrust, ohio
Companies: google, microsoft, mytriggers, tradecomet

Microsoft Exec Calls For 'Driver's License For The Internet'

from the what-a-bad,-bad-idea dept

It's been nearly ten years since we first heard the idea that there should be some sort of driver's license for the internet, and it's no less ridiculous a concept now than it was then. However, it's still brought up every now and then. The latest, as sent in by Marcus Carab is that Microsoft's chief research and strategy officer, Craig Mundie, is suggesting an internet driver's license and a special WHO for the internet, as a method of fighting back against bad actors online:

Mundie and other experts have said there is a growing need to police the internet to clampdown on fraud, espionage and the spread of viruses.

"People don't understand the scale of criminal activity on the internet. Whether criminal, individual or nation states, the community is growing more sophisticated," the Microsoft executive said.

"We need a kind of World Health Organization for the Internet," he said.

"When there is a pandemic, it organizes the quarantine of cases. We are not allowed to organize the systematic quarantine of machines that are compromised."

He also called for a "driver's license" for internet users.

"If you want to drive a car you have to have a license to say that you are capable of driving a car, the car has to pass a test to say it is fit to drive and you have to have insurance."

These are the kind of ideas people have when they haven't bothered to think through the consequences of what they're saying. It's unlikely any kind of WHO would be particularly effective. We already have various security companies that have a strong profit motive to do the same thing, and they're failing (miserably). Setting up some sort of government agency to do the same thing? That sounds like a bureaucratic mess.

And an internet driver's license is even more ridiculous. Unlike a car, the internet is something that people have to use all the time. No driver's license is going to stop people from getting suckered by scammers. Sure, more education could be helpful, but any sort of requirement that they need to pass a test won't stop people from getting on the internet and doing something stupid. If anything, it will give people a false sense of security online. Yes, there are issues with scammers online, but we're not going to fix them with some bureaucracy and forcing people to take a proficiency test.

Filed Under: craig mundie, driver's license, internet
Companies: microsoft

Distributor Claims Microsoft Terminated Partnership After Reps Refused To Take Part In Sex/Drug Party

from the sex,-drugs-and-software-distribution dept

Well, here's a story you don't see every day. Roy alerts us to a report that Israeli software distributor EIM is suing Microsoft over a terminated contract. Microsoft claims the contract was terminated due to filing fraudulent sales reports, but EIM says the real reason was that EIM representatives refused to take part in a sex and drug party aboard a cruise put together by Microsoft for Turkish and Israeli distributors. EIM claims that there were women who would perform sexual services in attendance, as well as some "illegal substances," and EIM representatives were encouraged to partake of both, though they refused. Microsoft has sued back, claiming breach of contract by EIM -- though apparently refuses to comment about the cruise allegations. Of course, you would think that with other distributors on the cruise, some might be able to confirm or deny the allegations -- and if there were any others who chose not to partake, it would be worth knowing if they, too, lost their contracts. The whole thing seems pretty bizarre, frankly. Even if Microsoft apparently did throw such a party, it still seems like EIM would have a tough time proving that its contract was terminated for its representatives' failure to participate.

Filed Under: drugs, legal fight, orgy, software distribution
Companies: eim, microsoft

Microsoft Sues BitTorrent Tracker

from the jumping-into-the-game dept

After already targeting a bunch of users of a popular Lithuanian BitTorrent tracker, Microsoft has apparently now tried suing the owner of the torrent tracker itself, though the guy claims he stopped running it at the end of last year. But, again, it seems backwards to sue the operator of a tracker, when that tracker does not host or transmit any copyrighted material itself. On top of that, Microsoft has sued for $43 million, when Lithuanian law apparently limits the potential damages in this case to $53,000. Either way, due to the case, the (previous?) owner of the site has had his assets frozen -- which seems pretty extreme based on just an accusation, rather than a conviction.

Filed Under: bittorrent, lawsuit, lithuania, tracker
Companies: microsoft

When Declining To Enforce Your Intellectual Property Rights Strengthens Your Market Position

from the well,-quite-often dept

Over the years we've shown many examples of times when it makes much more business sense not to enforce your intellectual property rights, but reader Jerry Leichter sends in another example. It discusses how Apple is benefiting from not going after those who copy its iPhone UI, suggesting that Apple's aggressiveness in such lawsuits with PCs helped Microsoft win the personal computer war in the 80s and 90s:

The more different competitors Apple faces in smartphones, the better it fares. One major reason why Apple lost its pioneering position in graphical desktop PCs to Microsoft in the 90s was related to the company's efforts to stamp out rivals in "look and feel" lawsuits during the late 80s that shut down windowing products from HP and GEM, leaving Microsoft free rein to consolidate a competitive-free monopoly juggernaut around its own Windows product.

In this decade, Apple has conspicuously refrained from attacking rivals on copyright or patent infringement issues in both the iPod and iPhone markets, outside of defensive measures it has taken against patent challenges from Creative and more recently Nokia. Competing in the market has historically worked out much more successfully for Apple than trying to compete in court.

I think it's a good point -- and accurate that Apple is better off not enforcing its IP, and that Microsoft was helped by Apple's mistake last time around, but I doubt that's why Apple isn't doing it this time around. My guess is that the reason it didn't bother this time was because it lost so badly when it tried to go after Microsoft for copying the "Windows" look and feel. Still, it is a good example where sometimes it really does help to have more people recognize your user interface -- even if sometimes they're using it from someone else.

Filed Under: business models, enforcement, intellectual property, market position
Companies: apple, microsoft