Last year we noted just how odd it was that a Novell antitrust lawsuit against Microsoft over Windows 95 was still going on, but it really was. However, it may finally be over. After the jury deadlocked in December, the court has dismissed the lawsuit, claiming that Novell failed to show sufficient evidence of antitrust violations by Microsoft. But have no fear, fans of 20 years ago: Novell has promised to appeal. All I can say to that is, wait, Novell still exists?

We recently mentioned the latest round of Microsoft's antitrust fight, dating back to some of its actions around Windows 95. To be clear, I think the action against Microsoft is pretty silly. It's pretty clear that the market is quite capable of dealing with any perceived Microsoft "monopoly" and routing around it. That said, one thing that is quite stunning in all of this is the sheer hypocrisy from Microsoft in discussing this case, as compared to Microsoft's own efforts to drag Google into an antitrust battle as well. Now, some will shrug and say that this is basic self-interest on Microsoft's part. It's always going to favor things that help Microsoft. But it certainly seems to weaken the validity and credibility of Microsoft's arguments.

Back in March, we noted just how ridiculous this was, when Microsoft complained about Google to the European Union, whining that Google made it difficult for Microsoft's platforms (mainly the Bing search engine and Microsoft's mobile platform) to access YouTube video data. At the time Microsoft's General Counsel sure seemed to insist that Google had a duty to engineer its platform to make life easier for its competitors. Here's the quote we highlighted back in March:

First, in 2006 Google acquired YouTube--and since then it has put in place a growing number of technical measures to restrict competing search engines from properly accessing it for their search results. Without proper access to YouTube, Bing and other search engines cannot stand with Google on an equal footing in returning search results with links to YouTube videos and that, of course, drives more users away from competitors and to Google.

Second, in 2010 and again more recently, Google blocked Microsoft's new Windows Phones from operating properly with YouTube. Google has enabled its own Android phones to access YouTube so that users can search for video categories, find favorites, see ratings, and so forth in the rich user interfaces offered by those phones. It's done the same thing for the iPhones offered by Apple, which doesn't offer a competing search service.

Note how in both paragraphs, Smith seems to clearly suggest that Google has a duty to engineer its products to make life easier for Google's own competitors.

Okay. Now, jump over to the ongoing antitrust lawsuit against Microsoft by Novell. And note how Microsoft's lawyers appear to argue directly against this idea that a company should have a duty to build its products to help competitors:

Microsoft attorney Steve Aeschbacher said Novell is saying it wishes Microsoft would have developed Windows 95 differently than it did.

"The law basically doesn't require people to design their products to the whim or demand of other companies. You get to design your own products. There isn't any legal obligation for us to do what they wanted us to do," he said.

Seems to directly contradict what Microsoft said just months ago when it was talking about Google. Furthermore, in Microsoft's motion for summary judgment (pdf) in the current case -- a brief you can be sure MS General Counsel Brad Smith was well aware of -- Microsoft again appears to argue the exact opposite of what it said in regards to Google just months ago:

The allegations underpinning count I are premised on the notion that Microsoft had some affirmative duty to assist—or to continue assisting—a competitor. Novell complains that Microsoft harmed its office productivity applications designed for use with Windows 95 by (i) discontinuing the formal documentation of six APIs in pre-release versions of Windows 95, (ii) failing to include in Windows 95 certain functionality that Novell would have liked, and (iii) failing to endorse Novell’s applications by granting Novell a license to use the Windows 95 logo. These allegations are not cognizable under the antitrust laws.

The objective of our antitrust laws is to promote competition. Successful companies—even monopolists—are encouraged to compete vigorously. Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 544 (9th Cir. 1983) (“A monopolist, no less than any other competitor, is permitted and indeed encouraged to compete aggressively on the merits.”). Monopolists are encouraged to innovate and are entitled to retain the benefits of such innovation. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 281 (2d Cir. 1979). Moreover, a monopolist is not required to help its smaller rivals or shield them from the rigors of competition. Olympia Equip. Leasing Co. v. Western Union Tel. Co., 797 F.2d 370, 375-76 (7th Cir. 1986) (“A firm with lawful monopoly power has no general duty to help its competitors.”); Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990) (“Antitrust law . . . does not require one competitor to give another a break just because failing to do so offends notions of fair play.”).

I agree very much with the Microsoft filing in this case. Antitrust law shouldn't be about propping up competitors or requiring a company to engineer its products in a certain manner to help competitors. And while I understand that Microsoft's position will shift depending on whatever benefits Microsoft best, it seems like the company is being ridiculously short-sighted in being so blatantly hypocritical and inconsistent. It hurts its chances in this particular lawsuit, and it hurts Microsoft's overall credibility. While I understand that Microsoft thinks tossing around antitrust accusations at Google may make life difficult for Google, it seems like both companies would be a lot better off if neither of them tossed antitrust arguments at the other. It seems only likely to backfire.

Thought that Microsoft's antitrust troubles from a decade plus ago were all settled and over with, beyond a little monitoring? Think again. The case involving Novell is continuing onward... and lined up on the docket to testify is Bill Gates, who's being called to explain some questionable emails he sent all the way back in 1994, which seem to suggest plans to use Windows to limit competing office productivity software offerings. Of course, perhaps if Novell hadn't been spending so much time and money fighting Microsoft, it could have spent more time actually building products people want.

We had hoped that after SCO lost its lawsuit (yet again) last summer that the whole SCO vs. Linux legal fight would finally, finally, finally be dead (finally). But, of course, that was wishful thinking. Zombie SCO came back for another whacking, and , as mentioned on Slashdot, another whacking it got. The ruling is worth reading if only for a nice, concise summary of the entire legal dispute and SCO's various attempts to reanimate its very dead corpse.

My favorite part may be a rather minor point in the larger fight, but part of the legal fight involved SCO claiming slander against Novell for telling the world that SCO didn't actually hold the copyrights for UNIX. SCO tried to claim that this hurt its business, and Novell reasonably countered that the thing that really hurt SCO's business was its own actions -- and, as part of that, showed the jury a BusinessWeek article about how SCO was "The Most Hated Company in Tech." SCO claimed this was hearsay, but the court didn't buy it, noting that it was one minor image seen by the jury over a much larger trial, but, more importantly, noted that "there was repeated testimony and argument over the course of the trial pointing out the unpopularity of the SCO Source program."

While there are lots of lessons to be learned from the nearly decade-long SCO legal fight to claim control over Linux and demand a toll from just about everyone, one key lesson is that going legal is no way to build a business that people like or respect. The crux of a strong market system is that it enables transactions where all parties are happy with the results, and all parties feel they came out better off. When your entire business model is to force people to pay, rather than providing real value for which they want to pay, you're positioning yourself for failure.

Last month, when a court ruled against SCO for the... oh heck, we've lost count... 'th time, we wondered if the whole bizarre saga might finally be over. No such luck. Hephaestus points out that SCO has, in fact, appealed. Not much to say about this one, but just shake your head in amazement. Some day, will someone please do a full case study on SCO's elaborate decade-long suicide through bad litigation choice followed by even worse litigation choice?

Is the bogus "we own Linux" lawsuit from SCO finally, finally over? I guess we can never say never, because it keeps coming back from the dead. However, it's taken another head shot. As you may recall, many years back SCO claimed to own the copyrights on Unix, and sued IBM and some other Linux users for infringing on their copyrights -- though, it never actually showed any evidence to back that up. Soon after all this started, Novell came along and noted that, as far as it knew, Novell still held the copyrights, not SCO. So the legal battle shifted to who actually held the copyrights, and SCO has repeatedly come out with the short end of the stick. First a judge ruled that Novell held the copyrights. After an appeals court said that a jury should decide that issue, rather than the judge, the case went back to a jury who also found that Novell, not SCO, held the copyrights. SCO then told the judge that the jury didn't really mean what it said in plain language, and said that the judge should order Novell to hand over the copyrights anyway.

That's not happening. Once again, the judge has ruled for Novell over SCO. In theory, this should end the whole saga. The judge ordered that the case be closed, and without the copyrights, SCO's suit against IBM is dead as well. Will SCO give it up finally? Or will it somehow be reanimated yet again?

It's so rare that we post about a good patent ruling coming out of East Texas that it seems worth highlighting that they do happen. The latest is that Red Hat won after being sued by a patent hoarder, who claimed that every version of Linux infringed on its patents. The jury found that the patents in question were invalid and tossed them out. You may recall that we actually wrote about this lawsuit when it was filed, noting that the company who filed it, IP Innovation, was actually one of many shell companies representing Acacia, which for many years has been a leader in hoarding patents and suing companies who actually innovate. We also noted at the time that the patents in question seemed highly questionable. The fact that even a jury (which tends to find patents valid the majority of the time) found the patents ridiculous is pretty telling.

SCO really is quite the zombie of a company, isn't it? It just never dies. It's been a month since getting smacked down yet again and having a jury declare that Novell still owns the Unix copyrights, and they were never transferred to SCO (after a judge had already said the same thing). And yet, as Slashdot alerts us, SCO has now told the judge he should order Novell to hand over the copyrights anyway. Talk about getting desperate. When will SCO finally be put out of its misery?

Could the case that never ends finally end? As you may recall, years back SCO sued IBM, claiming that Linux infringed on Unix, whose rights SCO acquired earlier. Except... in 2003 Novell tossed a bit of a firecracker into the whole thing by noting that it still owned the copyrights on Unix. The case went back and forth for ages, with a lot of questionable activity (including questions concerning Microsoft's supposed funding of SCO's activities), including accusations that the whole thing was an attempt to pump-and-dump SCO stock. Back in 2008, we thought it was finally over when a judge ruled that Novell owned the copyrights, leading many to expect SCO to finally just die off. Instead, it declared bankruptcy, got a lifeline and continued the fight -- leading to an appeals court ruling that the question over copyright ownership needed to be determined by a jury rather than a judge. As we noted at the time, this was hardly (as SCO's Darl McBride insisted) a vindication for SCO -- it was just another chance for SCO to lose in court.

And lose, it did. As was widely expected, the jury has that Novell owns the copyrights on Unix and SCO basically has no case. Once again, this suggests that SCO has never had a case, and has just been wasting everyone's time (and a lot of people's money) for a long, long, long time.

But, of course, it's probably not over yet. SCO says it will continue the original lawsuit against IBM, saying that it won't be over copyright, but breach of contract claims. Of course, it's now been almost a decade and we still haven't seen what it is that IBM did wrong. SCO still hasn't shown anyone what code breached what contract. However, as Groklaw notes, even if SCO (with what money?) keeps fighting the lawsuit against IBM over contract terms, that's a much more limited lawsuit, as the terms are just between IBM and SCO -- and wouldn't impact the wider "Linux" ecosystem, since others did not sign any kind of contract with SCO. Still, at some point, you would hope that the folks still left at SCO involved in this case realize enough is enough and just let it die.

And you thought the insane nightmare was over. Two years ago it seemed like the long national nightmare that was SCO's claims of copyright infringement in Linux were over. A judge ruled that SCO did not actually own the copyrights it claimed it did, and that they still belonged to Novell. While SCO received a slap on the wrist ($2.5 million) for this, it basically wiped out the key part of SCO's lawsuit against IBM, and led SCO to file for bankruptcy. Some investors supposedly pumped some money into SCO to keep it breathing, but later details on that made the whole deal seem very, very sketchy. However, now SCO might have a very slight chance to turn things around.

A judge has overturned part of the lower court's original ruling on who owns the copyrights to Unix, and ordered a full jury trial take place to determine who actually owns the copyright. Oddly, the court did not overturn the part where SCO has to pay Novell $2.5 million -- which could push the company over the final edge. If, however, SCO can stay alive, and it does go to trial, the company could (and likely will) still lose that trial (and, we're still twiddling our thumbs and waiting for any evidence from SCO that IBM actually infringed on the UNIX copyrights... but that's another story and another lawsuit). SCO's Darl McBride (how he's still running the show is beyond me) is claiming this is a validation for SCO, but that's not even close to true. All the court is saying is that there wasn't enough for the summary judgment on the copyright ownership, and the issue should be taken up in a full jury trial. That's not a "validation" of SCO's position -- it's a small, and likely temporary, lifeline.