Tech Law Prof Blog

Beatle Recordings in Digital Download Limbo for Now

The Beatles and their various estates and representatives have not come to any agreement with EMI to release the band's catalog as a digital download.  Paul McCartney would like to see this happen, "because I think it should," as he's quoted in an interview with the AP.  Yes it should, though when potentially vast sums of money are involved the deals become harder.  Watch for it to happen sooner or later, followed by lawsuits claiming that the practical efforts to make the recordings available will not have matched the technical requirements of the contract.  Or something like that.  [MG]

SCO Owes Novell $2.5 Million Plus in Final Judgment Order From Linux Copyright Case

The last chapter in the SCO suit against Novell, IBM, and the Linux operating system (figuratively, not a defendant), has been written.  Judge Dale Kimball reiterated the terms of his July, 2008 order that effectively ended the case.  SCO's copyright claims are gone.  The company didn't have the intellectual property rights in Unix it was trying to enforce.  Moreover, SCO couldn't prove the claims it had against IBM, that the Linux code IBM distributed was stolen from Unix.  It's a sad chapter in technology litigation when a company blusters its way into court with little or nothing to back up the charges.  Hoping for a settlement and a non-resolution of the issues is not an option when dealing with lawyer buying deep pockets such as IBM and Novell. 

The best site to have ever covered this case is Groklaw, and the commentary on this latest development is no exception.  That is available here, including links to the latest ruling in the case.  As noted, there is a possibility that SCO could appeal.  There's not much likelihood, however.  SCO is in bankruptcy and it owes Novell a ton of money.  The interest clock keeps ticking as well, so the dollars keep slip, slip sliding away.  I'm not even sure what the lesson is for anyone except litigants should be able to back up their claims.  Something was fishy early on when SCO tried to manipulate discovery so that IBM had the burden of identifying where it had violated SCO's claimed copyrights.  The court was not amused by that tactic.  It was all downhill from there.  Novell asserted its own rights in the Unix operating system which completely undercut SCO's claims against Linux vendors.  Maybe another lesson is to be careful who gets angered by your actions.  In any event, a lot of this was unnecessary and a colossal waste of money.  If there is any life left in SCO after this case, please don't use it to appeal.

View other commentary about the SCO case from Computerworld, and Information Week. [MG]

Microsoft Emails Show Disorganized Vista Effort

The recent release of corporate emails in the class action suit against Microsoft over its "Vista Capable program is drawing reactions ranging from move along, nothing to see here, to this is a corporate train wreck.  At issue is the process by which Microsoft graded hardware on its ability to run Vista.  The machines that could barely make it were deemed Vista Capable while others were identified as Vista Ready.  Microsoft broke out six versions of the operating system, some with features aimed a different markets and some with fewer features.  Aside from security improvements, a big feature was the new Aero Glass desktop, with a redesigned visual experience that included translucent windows.  The minimum version of Vista, Home Basic, did not include Aero.

The cumulative emails released to date show a sordid tale of how Vista Capable came to be.  Intel pressured Microsoft to include the Intel 915 graphics support chip set even though that set could not run the Aero desktop.  Microsoft gave in, much to the delight of Intel and Sony, and to the ire of HP who worked hard to produce a line of Vista Ready machines.  Intel didn't want to get stuck with a backlog of 915 chips that no one would use to build Vista machines.  HP may have been angry, but it and the consumers who bought HP machines probably had the better Windows experience.  It's the ones who bought Vista Capable machines who found out after the fact they couldn't take advantage of a heavily promoted graphical feature.  It's not as if there was a lot of Vista publicity at the time of release saying "Vista Capable means your machine will look a lot like XP does, so why are you bothering to upgrade?"  The joke was on Microsoft in some respects, given that it had to extend the window of availability for XP based on customer demand. 

Those who believed the hype and bought those Vista Capable machines were not too thrilled with their upgrade options.  If someone bought Vista Home Premium, the install reverted to Vista Home Basic because of low hardware power.  There is a price difference of some $60 or so between upgrade editions.  That may be nothing more than the cost of a lunch appetizer to an Intel or Microsoft executive.  It is something to the average Joe the  consumer, at least morally if not legally. 

The mail highlights include Microsoft employees disappointed with lowering the standard for a machine that runs Vista;  Microsoft employees taken in by the company's hype over their own personal machines; Microsoft employees having the same confusion getting programs and data to transfer from old machines to new; and Vista driver issues causing presentations by Microsoft employees to fail in one form or another.  One would think that these problems would raise a red flag of one type or another.  The practical response should have included something more than Vista is wonderful.  Steve Ballmer put some of the blame on Microsoft wasting 2.5 years out of 5 to get Vista ready.  Whether any of this or any of the other evidence makes Microsoft legally culpable is up to the Court.  The emails alone paint a picture of a company that had badly managed the process of turning the concept of Vista into a real operating system.  Steve Ballmer claimed to his employees that he was out of the loop when it came to the Vista Capable decision.  That may be plausible though he didn't do anything to change the decision when he certainly had the power to do so.  Now Ballmer is called to testify on his role.  The judge said he discussed Vista branding with executives, so he has some knowledge worth exploring.  Expect a page out of the Clinton playbook over the definition of words.

Microsoft is not the same company that it was prior to the antitrust battles in the U.S. and more recently in Europe.  There was a time when Microsoft drove the design and everyone followed.  Not now.  Apple can actually compete and raise its market share somewhat with the "I'm a Mac" ad campaign.  If that gets under Bill Gates' skin, I wonder how he feels about how Microsoft handled the development and marketing of Vista?  Microsoft may win the suit but it will have lost the publicity war over the quality of the company flagship product.  The emails show, at the very least, that Vista wasn't ready before it came out, and that Microsoft had some form of corporate knowledge to that effect.  I hope the lesson isn't wasted on Windows 7.  Or the efforts to build search market share.

TechFlash has the latest round of emails in PDF.  See for yourself.  [MG]