“Should Be Inc. settle with Microsoft or should it hold out and wait for Massachusetts attorney general Tom Reilly to press for a fair settlement or penalty for the software giant? Assuming Massachusetts is sucessful, Be’s task of being reinbursed for losses would be much easier. If Be settles, Microsoft would not have to admit wrongdoing.” This means that Microsoft would be given a proverbial license to pressure PC OEMs to not install alternatives to Windows, the editorial states.
Be-Microsoft Settlement Puts The Thumb Back On PC OEMs
About The Author
Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
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Are Be able to “not settle”? I thought the entire thing has come about because Be *did* settle?
It’d be nice if they fought on though.
If Microsoft’s competitors want an admission of wrongdoing from the software giant, they should provide Be, Inc. with a financial incentive to hold out for it. They could form a group similar to http://www.youmaybenext.com .
Be surely got the best deal here — taking Microsoft’s money is a bonus for a company that’s being wound up.
There would be no commercial gain for Be to take the risk of fighting what some might call “a moral stand” against Microsoft since there’s not much more for Be to gain here. They are history! And ultimately a small part now…
“This means that Microsoft would be given a proverbial license to pressure PC OEMs to not install alternatives to Windows, the editorial states.”
And how’s this different from present policy?
Seems they already have the OEMs by the shorthairs.
“They are history! And ultimately a small part now…”
Yes, too bad, too bad… Humans move in mysterious ways…
well i guess this deal has not been approved by the judge but does be still have a choice?
from a matter of principal and for most shareholders, holding out for MASS (what a great state) to go on might be better if it meant greater rewards. It is not clear to me why the author thinks the MASS trial would result in greater potential for Be, Inc to prevail. Any insights on why that is the assumption here?
I must say i am saddened by the settlement. Its only a slap on the wrist for MS (probably about equals to bill gates weekend spending money) and it does nothing to discourage MS’ practices. Be had a good case which makes settlement that much worse.
I am convinced that only two efforts can fight MS and reduce their ability to disrupt the computer industry. One is open source software. The ability of PDA manufacturers to move up and offer laptops and then perhaps all out desktops on a Different platform (ARM) might also do. Apple could have an impact as well but to do that they’d need to vastly reduce the pricing on their towers, something that won’t happen quickly.
MS will push for more restrictive OEM agreements no matter what happens.
I wonder if this (small) settlement was pushed by Be Inc lawyers. If I remember correctly, the lawyers for Be Inc. were only to be paid from a settlement, and we not paid up front. By settling now, the lawyers get their un-disclosed amount of cash, without concern for the business case. Stockholders like myself really get nothing. I would rather forgo a few dollars I would get back and see the case go to court, even if I get nothing in the end.
Yes, Be as a product company is no longer, but as a business entity, it still has a responsibility to its shareholders. If there is a dollar settlement, the shareholders would probably get something back from their investment.
For people sueing Microsoft to keep pushing until MS is forced to open up the Win32 APIs and file formats, because 100% compatability with Windows is the only way we’re ever going to see any real competition on the desktop PC again.
>>>well i guess this deal has not been approved by the judge but does be still have a choice?
Motz doesn’t get to review the settlement.
If court approval is required, then they would have worded the press release differently.
Quote from the press release announcing that Microsoft reached a settlement (which was later shot down by Motz) with the 100 private anti-trust suits:
“Details of the five-year education program are outlined in a Settlement Agreement signed by the parties on Monday, which will be filed with the Federal District Court of Maryland later today. The program, IF ACCEPTED BY THE COURT, will provide cash, computer hardware, software, technical assistance and training to over 12,500 schools and more than 400,000 teachers who work in those schools. A public hearing on the agreement is scheduled for Tuesday, November 27th.”
“Under the PROPOSED settlement, Microsoft’s new educational programs would be in addition to the company’s long-standing corporate philanthropy efforts. Last year, Microsoft gave more than $215 million in cash and software to nearly 5,000 nonprofit organizations to improve technology access in underserved communities, and expand and diversify the technology workforce.”
If Be’s settlement needs some sort of court approval, they would have worded it as a “proposed” settlement and they would have specifically stated that court approval is required.
Therefore, there is no Motz review.
This is another example from the M$ when they brake the law and buy the case from those who sue them. So? Doesn’t M$ have to act as the law limits? No! They don’t have to, because they are now big enough to buy everybody and everythink what is in their way… Only Linux is ‘unbuyable’ while it’s free…
Monopoly must brake! ASAP!
“Details of the five-year education program are outlined in a Settlement Agreement signed by the parties on Monday, which will be filed with the Federal District Court of Maryland later today. The program, IF ACCEPTED BY THE COURT, will provide cash, computer hardware, software, technical assistance and training to over 12,500 schools and more than 400,000
teachers who work in those schools. A public hearing on the agreement is scheduled for Tuesday, November 27th.”
I say again, Microsoft would be popping the champagne if this gets through. They would like nothing better than to “have to” provide schools with Windows-based systems. If it hadn’t been for anti-dumping laws, they would have done this out of themselves already.
So everyone should sue Microsoft for anything and then “settle” for a certain amount of cash and admit that Microsoft did no wrongdoing whatsoever. What a brilliant thought! I’d certainly go for that one.
Just went over to nasdaq site and looked up beosz. Now my understanding was that Beosz stopped trading on OTC a while ago yet nasdaq has a listing including sales volumes of roughly 800,000 for today. is it still trading?
Also any idea on shares outstanding? nasdaq does not say.
Everyone at Be should be extremely happy with the settlement, especially considering the alternatives.
If Be had not managed to get something for the company vs. nothing, then the most rational path forward would have been to sue Be executive management for fraud and embezzlement.
To take > $100M in funding and never produce a single commercial quality OS shows that Be was a lifestyle company and existed only to fund the lavish lifestyles of the top execs at Be.
Is it still be possible for Be inc. to open source their OS?
If so, why don’t they? How can we get them to do so?
>>>Also any idea on shares outstanding? nasdaq does not say.
38,450,527 shares outstanding as of August 1, 2003.
>>>Is it still be possible for Be inc. to open source their OS?
Not possible — because Be Inc. sold BeOS to Palm a couple of years ago.
“To take > $100M in funding and never produce a single commercial quality OS shows that Be was a lifestyle company and existed only to fund the lavish lifestyles of the top execs at Be.”
i assume you know nothing about be, inc or beos. If you want to see a commercial quality os then get a copy of R5 or go to to http://www.izcorp.com and look at radar which uses Beos. radar (a multi-track recorder) is reknown for its stability and performance. Like i said it runs on beos. Do your research before you make comments like that.
>>>>>>Is it still be possible for Be inc. to open source their OS?
>>>
>>>Not possible — because Be Inc. sold BeOS to Palm a couple of years ago.
In this case:
Is it possible for Palm to open source BeOS?
If so, why don’t they? How can we get them to do so? (What has been done so far?)
I just noticed that this questions are really stupid because they have probably been asked a hundred times before and I really don’t want to start again. But can you provide me with some link to more information maybe?
“>>>Also any idea on shares outstanding? nasdaq does not say.
38,450,527 shares outstanding as of August 1, 2003.”
Where did you get this from. This sounds too high to me. The IPO was for 6 million shares. I do not recall an additional offering and there are no press releases on yahoo or on beincorporated.com to suggest that. They did release a press release saying they would consider another offering though in 2000, no more than that though. By 2001 it was all over.
Even if you include the actual shares that the company held that figure (38 million) seems way too high. If be, Inc. had been able to put out 38 million shares then they’d still be going today.
I got the numbers from Be’s SEC filings.
http://secfilings.nasdaq.com/filingFrameset.asp?FileName=0000895921…
When companies IPO’ed — they only sell something like 10-15% of the company to the public. The VC backers turned their preferred shares into common shares at the IPO. Then you grant a few million stock options to their employees. Voila, 38.4 million shares.
>>>The VC backers turned their preferred shares into common shares at the IPO.
And after the VC backers exchanged their preferred shares (that they got before the IPO) into common shares — the VC backers cash out by selling their common shares to the public.
Note that Be Inc. doesn’t pocket any money when the VC backers sell their common shares to the public.
well if that is the case (38 million share outstanding) then this settlement is even more useless than i thought. Should have kept fighting or better yet never sold to palm and open sourced Beos while letting be, inc. die.
In death as in life be, inc failed to stand up to the beast (microsoft). Its sad. You’d think death would inspire a bit of courage. after all what can you loose once you are dead.
Be was directly hurt because they floated the dual boot ability and MS made [I’m sure someone has at leat one] phone calls to the OEMs not to do it. Be’s case is the “straw” that could break MS. They did everything possible to get noticed [downloaded for free, offered totally free OEM licenses! had the ISVs lined up: Gobe, Opera, etc], and at the last minute, MS threw it’s weight in and prohibited them from competing at all. This was very clearly a direct effect of MS contracts and threats to enforce them.
This is the only shot anyone gets at the most basic of antitrust violations, the bootloader license! Only BE can fight this fight because they incurred harm. No OEM can challange the license because they are “gaged” by it! If Be keels over the chance is gone forever! With the US legals system workings, the MS tactic can’t be ruled illegal until someone is damaged by it AND manages to bring it all the way to court. The Mass. Attorney should get in there and actively demand the court reject the settlement…if successful it would break the DOJ settlement wide open by adding new evidence to the trial that happened AFTER Netscape’s fall, proving that while MS was dealing with the DOJ they were still ACTIVELY violating antitrust rules. It could get Judge Jackson’s rulings back on the plate in a hurry!
This case is much like cases against Mulitmillonaire wife beaters. They beat their wives within an inch of their life and when she leaves he gives her lots of money so she won’t call the cops on him… Eventually, the DA catches on and puts the DR., nurse, or wife up anyway and files charges against the spouse agains her will.
This is a situation where the exact same thing should be done…for mostly the same reasons!
>>>Only BE can fight this fight because they incurred harm.
But the harm incurred was minimal at best. Be Inc. was in the PC market for something like 18 months — that’s pretty good for 23 million dollars.
These things all add up to the same result = nothing. There is no “fight for justice.” There is no “fight for what’s right.” All there is, is “try to settle the debts and move on to the next opportunity.”
The government has too many strings attached to it from the business world, so they won’t do any of the above, either. We saw the result of their attempt at going after Microsoft: nothing but a waste of money and time (self fulfilling prophecy for the anti-anti-trust people).
Yes, it would be the “right” thing to keep fighting MS. Yes, it would be great for the whole industry if the BeOS sources were given to the public (minus the third party parts). Yes it would be interesting for Be to use this settlement payout to restart operations. But these dreams (that even I admit to dreaming) aren’t feasable or likely. No enough to even make them worth mentioning.
If we lived in a world of “should,” all this crap wouldn’t even be an issue in the first place. This isn’t a world of “do the right thing.” It’s “Save your ass” and “take as much as you can take.”
Hope is an admirable thing. In the context of this topic, however, I feel it is foolish and pointless.
>>>The Mass. Attorney should get in there and actively demand the court reject the settlement…
The court doesn’t have the right to reject the settlement. This isn’t a class action lawsuit where Judge Motz rejected the settlement between Microsoft and 100 private class action lawsuit.
This is just a normal civil lawsuit between 2 private corporations — which settled out of court — the court doesn’t have any rights to reject anything.
“The court doesn’t have the right to reject the settlement.”
not necessarily true. A contract is a binding agreement but if it is found to be excessively one-sided then the court will not uphold it if challenged. I tell you this from experience as it happened to me (I challenged). from a legal perspective, i wonder if a shareholder could sue Be, inc. and Microsoft to void the contract because of its fairness (or lack thereof). I am not encouraging that, just curious.
Actually on another interesting thought i wonder if Be’s shareholders could file a seperate law suit to recoup the damages incurred by MS. again just curious no intentions to do it myself.
what about linux,
also why doesn’t the linux community make it easy to dual-boot xp and linux?
>>>A contract is a binding agreement but if it is found to be excessively one-sided then the court will not uphold it if challenged.
That’s totally different than whether judge motz can reject the settlement. Be shareholders are not a party to this settlement anyway. Be shareholders can sue Be Inc. and its officers for not protecting their shareholders’ interest — but Microsoft has nothing to do with it.
If MS wins, they’ll have one less commercial entity to destroy, and with that admission they are asking for, they are asking to be treated like 2nd to god almighty, for however laws, they break, companies, they destroy..
It’s the last stand of reason and tolerance against market tyranny.
Sandler, that would be called bribery, and that’s ONE VERY GOOD reason Be should nail them. To accept the money is a payoff. I say go for the nutz and don’t let go until gates loses.
I don’t care how much you give away to “underserved”, you don’t destroy your competitors to do it. Their false piety will destroy them for sure, but in court, facing Be will it happen.
Or no one’s safe.
>>>I don’t care how much you give away to “underserved”, you don’t destroy your competitors to do it.
The anti-MSFT camp is even worst bunch of people.
SUN, they who invests in SCO to destroy linux.
AOL Time Warner, they who allegedly fudged financial numbers to falsely make wall street estimates — destroyer of $150 BILLION in equity. (No matter how many companies Microsoft has destroyed in the past — Microsoft never did wipe out $150 BILLION).
Oracle, they who used campaign contributions in California to influence government bidding, hires people to search competitors’ garbage and with a CEO who spends hundreds of millions of dollars on a yacht race rather than donating it to the poor and needy.
If Microsoft and Gates manage to wipe out these 3 companies, and Gates (as he stated repeatedly) donates 99% of his wealth over his lifetime — the world will be a better place.
And AOL Time Warner and Oracle will negotiate deals with the SEC and the State of California — and admits no wrongdoings as well.
Don’t be naive. EVERYBODY are the devils. At least Gates will donate nearly of his loot.
SCO will shut up when MSFT gets it, becuase they’ve been allowed to go around and threaten because they percieve that is acceptable, I mean, when The Bill and Melinda gates foundation is a vehicle to bribe the office of president for favors?
get with it, people…
>>>SCO will shut up when MSFT gets it, becuase they’ve been allowed to go around and threaten because they percieve that is acceptable, I mean, when The Bill and Melinda gates foundation is a vehicle to bribe the office of president for favors?
You people are so naive. IBM and Microsoft have the exact same position of GPL/Linux and patents.
The fact is that IBM wouldn’t use embedded linux in their own commercial products, but IBM will try to sell you their powerpc chips for your embedded product. The IBM linux watch is just for PR value. Legal risks — Dr. Strassemeyer states that “That is why we don’t do distributions, and that’s why we have distributors.” The majority risks goes to Redhat and the end-user, the majority of the linux revenue goes to IBM. (Note: Strassemeyer’s interview is specifically mentioned in SCO’s lawsuit.)
http://www.sslug.dk/patent/strassemeyer/transr-del.shtml
Microsoft has the exact same legal position of the issue as well.
http://www.theregister.co.uk/content/4/28155.html
The week after Motorola embraced linux cell phone, they also embraced a microsoft cell phone as well. Remember that Motorola is also a cpu/asic manufacturer — they could be pulling an “IBM” — using the linux cell phone as pure PR purposes and try to sell you their embedded chipsets.
Sony brings out a PROTOTYPE linux-based home entertainment HDD recorder, and everybody bought that linux is alright. But Sony also stated that they know that “the (consumer electronics) manufacturer would be held legally responsible if a third party were to sue for patent infringement even if the Linux source code was provided to the maker by a software vendor on the GNU General Public License (GPL) basis.”
http://neasia.nikkeibp.com/wcs/leaf?CID=onair/asabt/news/249603
Sony also has a semiconductor subsidary as well — are they pulling another “IBM”.
Dell tells you that there is the SCO lawsuit is totally groundless, yet they don’t want to indemify you. Remember what IBM states “that’s why we have distributors”. You, the end-user, is going to get sued. RedHat and SuSE is going to get sued. But Dell is protected.
The only guys willing to indemify their own linux product is — SUN micro — an investor of SCO.
The latest Evans Data survey states that something like 40%-50% of the people don’t look into linux/GPL risks (or leave the issue to the engineers who have no idea how the legal system works).
The difference is that Microsoft knows the possible legal problem of GPL and patents, and they tell you the truth — and got demonized. IBM has the exact legal position of the matter, won’t let their own commercial products to use embedded linux, but lies to you and tells you everything is perfectly fine — when IBM salespeople sell you their embedded powerpc chipsets. If you have problems laters, then you are screwed — but IBM already made a lot of money from your purchasing orders of their chipsets.
Hmmm… Now were have we heard all this before? Oh yeah:
http://www.osnews.com/comment.php?news_id=3020&limit=no
http://www.osnews.com/comment.php?news_id=2553&limit=no
http://www.osnews.com/comment.php?news_id=4173
http://www.osnews.com/comment.php?news_id=2513
http://www.osnews.com/comment.php?news_id=1770
At least you’re consistent.
I am never going to use ANY Micros**t product for any of my home or business needs. I decided to do this after the 20th piece of news I read where Micros**t was defending it’s dreadful business practices.
You who are using their products can decide for yourselves if you wish to finance them in their apparent quest to crush any and all opponents.
” Be shareholders can sue Be Inc. and its officers for not protecting their shareholders’ interest — but Microsoft has nothing to do with it.”
Technically, the shareholders (individuals) have sustained personal financial damage due to the actions of Microsoft. They can sue microsoft for damages. It would be up to the judge though if he accepts that. They can also sue microsoft,in addition to be, to break the contract. Both MS and Be are party to that settlement. If you don’t like the settlement you can sue both. Again this is all up to the judge though.
Frankly, i think someone should do it. Someone has to do something to alter MS’ behavior. Otherwise the abuse (and crappy OS quality) will go on forever.
The free market is indeed a power means to regulate a market but without competition we fall into something that looks a lot more like facism than a free market.