David Boies Accused Of Running Horrifying Spy Operation Against Harvey Weinstein's Accusers

from the and-reporters dept

David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he’s popped up in Techdirt, it’s been doing really, really sketchy things. He was the lawyer for SCO in that company’s insane “set open source on fire” lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists — including us! — for publishing stories based on those leaked emails (we told him “go pound sand.”) And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn’t just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.

But, it turns out that Boies’ activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein’s legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an “army of spies” to try to trick Weinstein’s accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here’s just a snippet, involving one of Weinstein’s most outspoken victims, Rose McGowan:

In May, 2017, McGowan received an e-mail from a literary agency introducing her to a woman who identified herself as Diana Filip, the deputy head of sustainable and responsible investments at Reuben Capital Partners, a London-based wealth-management firm. Filip told McGowan that she was launching an initiative to combat discrimination against women in the workplace, and asked McGowan, a vocal women?s-rights advocate, to speak at a gala kickoff event later that year. Filip offered McGowan a fee of sixty thousand dollars. ?I understand that we have a lot in common,? Filip wrote to McGowan before their first meeting, in May, at the Peninsula Hotel in Beverly Hills. Filip had a U.K. cell-phone number, and she spoke with what McGowan took to be a German accent. Over the following months, the two women met at least three more times at hotel bars in Los Angeles and New York and other locations. ?I took her to the Venice boardwalk and we had ice cream while we strolled,? McGowan told me, adding that Filip was ?very kind.? The two talked at length about issues relating to women?s empowerment. Filip also repeatedly told McGowan that she wanted to make a significant investment in McGowan?s production company.

Filip was persistent. In one e-mail, she suggested meeting in Los Angeles and then, when McGowan said she would be in New York, Filip said she could meet there just as easily. She also began pressing McGowan for information. In a conversation in July, McGowan revealed to Filip that she had spoken to me as part of my reporting on Weinstein. A week later, I received an e-mail from Filip asking for a meeting and suggesting that I join her campaign to end professional discrimination against women. ?I am very impressed with your work as a male advocate for gender equality, and believe that you would make an invaluable addition to our activities,? she wrote, using her wealth-management firm?s e-mail address. Unsure of who she was, I did not respond.

Filip continued to meet with McGowan. In one meeting in September, Filip was joined by another Black Cube operative, who used the name Paul and claimed to be a colleague at Reuben Capital Partners. The goal, according to two sources with knowledge of the effort, was to pass McGowan to another operative to extract more information. On October 10th, the day The New Yorker published my story about Weinstein, Filip reached out to McGowan in an e-mail. ?Hi Love,? she wrote. ?How are you feeling? . . . Just wanted to tell you how brave I think you are.? She signed off with an ?xx.? Filip e-mailed McGowan as recently as October 23rd.

In fact, ?Diana Filip? was an alias for a former officer in the Israeli Defense Forces who originally hailed from Eastern Europe and was working for Black Cube, according to three individuals with knowledge of the situation. When I sent McGowan photos of the Black Cube agent, she recognized her instantly. ?Oh my God,? she wrote back. ?Reuben Capital. Diana Filip. No fucking way.?

And, yes, apparently it was Boies who signed the contract that made all this possible:

Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein?s abuses….

Oh, and the latter part of that sentence is fairly stunning as well:

… while his firm was also representing the Times, including in a libel case.

That seems like a pretty massive conflict of interest, which Boies denied:

Boies confirmed that his firm contracted with and paid two of the agencies and that investigators from one of them sent him reports, which were then passed on to Weinstein. He said that he did not select the firms or direct the investigators? work. He also denied that the work regarding the Times story represented a conflict of interest.

You know who did think it was a pretty bad conflict of interest? The NY Times. Boy, was the NY Times pissed off:

We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

And, by Tuesday night the Times had fired Boies:

Like other large firms, the Boies firm asked us to waive certain conflicts in advance. We understood that to mean that it could openly bring actions that may be adverse to our interests and we would be free to terminate our relationship with the firm if we felt the new representation posed a serious conflict. We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material in our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.

Boies is now trying to salvage his reputation by apologizing:

?I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.?

Let’s be clear though: this is absolute bullshit by David Boies. It is who he is. Again, he’s threatened plenty of media properties in the past — including us — with bogus threats attempting to stifle a free press and to intimidate reporters into not covering his big name clients. He did it with Theranos. He did it with Sony Pictures. And it certainly appears that he did much more than that for Harvey Weinstein under significantly more shocking circumstances.

So isn’t it about time that people took Boies down off the pedestal he’s been on for many years? He may be famous, but he’s been doing horrible things for the rich and powerful, often attacking and threatening a free press for years. Hiring spies for Harvey Weinstein is just the latest — and perhaps most horrific — example.

* Boies “representation” of Oracle in that case resulted in what remains a truly classic benchslap from Judge William Alsup for Boies making downright silly claims about programming.

JUDGE ALSUP: All right. I have — I was not good — I couldn’t have told you the first thing about Java before this trial. But, I have done and still do a lot of programming myself in other languages. I have written blocks of code like rangeCheck a hundred times or more. I could do it. You could do it. It is so simple. The idea that somebody copied that in order to get to market faster, when it would be just as fast to write it out, it was an accident that that thing got in there. There was no way that you could say that that was speeding them along to the marketplace. That is not a good argument.

MR. BOIES: Your Honor —

JUDGE ALSUP: You’re one of the best lawyers in America. How can you even make that argument? You know, maybe the answer is because you are so good it sounds legit. But it is not legit. That is not a good argument.

MR. BOIES: Your Honor, let me approach it this way, first, okay. I want to come back to rangeCheck. All right.

JUDGE ALSUP: RangeCheck. All it does is it makes sure that the numbers you’re inputting are within a range. And if they’re not, they give it some kind of exceptional treatment. It is so — that witness, when he said a high school student would do this, is absolutely right.

MR. BOIES: He didn’t say a high school student would do it in an hour, all right.

JUDGE ALSUP: Less than — in five minutes, Mr. Boies.

MR. BOIES: Well, Your Honor —

JUDGE ALSUP: If you know the language. Once you know the language, it is a five-minute proposition.

And, on an additional note, if you haven’t yet, you should read Sarah Jeong’s absolutely delightful profile of Judge Alsup and his coding hobby.

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Companies: black cube, ny times

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Comments on “David Boies Accused Of Running Horrifying Spy Operation Against Harvey Weinstein's Accusers”

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75 Comments
Anonymous Coward says:

Hat tip to ME! But where did ol' Harve go?

This morphs into attack on a hired gun, NOTHING about Weinstein.

And you omit “Mossad”, euphemize to “spies”.

And why no attack on HOLLYWOOD? You’ve been railing for twenty years about its evil copyright regime, yet when handed TRUE ammunition — at Fat Rich Targets I’d happily help you fire at — suddenly your gun jams! I guess you’re just too scrupulous to fight evil with an effective weapon, you insist on losing but honorable hand-to-hand, like in a karate movie.

orbitalinsertion (profile) says:

Re: Hat tip to ME! But where did ol' Harve go?

This is the most insane form of "you should write exactly what i think" that i have ever seen. Also, pretty sure your agenda is showing. You need attacks, do you? Hollywood and a lot of other things are bad enough, but you need all this to be, let’s see… a worldwide conspiracy of ____. (Fill in the blank, why don’t you).

David says:

Re: Re: Re:

Congratulations for getting the joke. I would not have thought it requiring explanation, but better safe than sorry. I mean, I laughed heartily when Trump got nominated: the finest in Republican gallows humor in light of not finding a candidate this time round I had ever seen.

But then someone like you was missing for explaining the joke to the American part of the audience.

Good job.

Anonymous Coward says:

No penalty for Boies

Weinstein Work Pulls Lawyer Back Into an Ethical Debate”, by Matthew Goldstein and Adam Liptaknov, New York Times, Nov 7, 2017

Actual conflict or not, legal experts said Mr. Boies would most likely pay little penalty for his dual work for Mr. Weinstein and The Times. They said disciplinary action was unlikely because it usually required a formal complaint. Moreover, they said, some clients may find Mr. Boies’s aggressiveness appealing.

“I don’t think this will hurt from a business perspective,” said Rebecca Roiphe, a professor at New York Law School and a former prosecutor who specializes in legal ethics. “It is not going to harm his reputation with most clients. When you hire Boies, you are hiring an aggressive lawyer.”

Anonymous Coward says:

Re: Re: Re:2 No penalty for Boies

I still miss Groklaw…

That site was a product of its era.

Diverging, in counterpoint, let me briefly touch Andy Odlyzko‘s 2001 article “The Myth of ‘Internet Time’ ” (MIT Technology Review).

The thesis of Internet time rests largely on a misreading of transient phenomena.

But with that said, Groklaw was a product of its particular era and circumstances.

That One Guy (profile) says:

Re: No penalty for Boies

“I don’t think this will hurt from a business perspective,” said Rebecca Roiphe, a professor at New York Law School and a former prosecutor who specializes in legal ethics. “It is not going to harm his reputation with most clients. When you hire Boies, you are hiring an aggressive lawyer.”

That someone described as a ‘former prosecutor who specializes in legal ethics‘ would make that sort of statement is beyond baffling, unless they teach a different version of ‘legal ethics’ at that school.

As for the idea that people would hire him for being ‘an aggressive lawyer’, that doesn’t do you much good when you’re talking about a lawyer who is more than willing to hire someone to go after the very people paying them, as happened here. ‘Aggressiveness’ when turned against you is probably not a very good selling point.

Anyone who hires him after this clearly has more money than sense, and had best hope that they don’t end up in the same position.

JMT (profile) says:

Re: No penalty for Boies

"I don’t think this will hurt from a business perspective…"

You’d think that being public and angrily dropped by a client as well-know as the NYT would be a pretty bad look.

"It is not going to harm his reputation with most clients. When you hire Boies, you are hiring an aggressive lawyer."

Being aggressive for your client’s benefit is surely good for a lawyers rep, but aggressively and duplicitously working against your client’s interests is something completely different.

DannyB (profile) says:

Re: Re:

Yes. That.

I strongly agree.

To anyone who would think that this was overreach, I would ask WHERE WERE YOU IN THE 1990’s ????? UNDER A ROCK ???

When Boise was prosecuting Microsoft for antitrust, I looked up to him. I had never heard of him before, and I was a lot younger.

When his firm took on the SCO case, I thought this nice lawyer had no idea what a bad client he had accepted.

But now I can recognize Boise for what he is. Maybe the Microsoft prosecution was an anomaly.

But Microsoft absolutely positively deserved this antitrust prosecution. Too bad the judge screwed it up at the very last minute before publishing his decision.

But then the Bush administration came in. And Asscroft dropped the whole thing for “lack of merit”.

At the time, I could realize that the rise of open source may seem slow. But it was inexorable. Unstoppable. And that one day Microsoft’s best days would be behind it. I think we have CLEARLY crossed well past that line by now.

DannyB (profile) says:

Re: Re: Re:

Microsoft was worse. Far worse.

I can own and use a computer without FaceTwit.

At the time, one could not own a computer without Microsoft. At least not without going to absolutely extraordinary effort (at the time). Try installing slackware at that time. What leads to antitrust is that Microsoft took plenty of steps to ensure that there could be absolutely no competition.

Roger Strong (profile) says:

Re: Re: Re: Re:

At the time, one could not own a computer without Microsoft.

Both Mac and OS/2 fanboys were constantly claiming "Our OS is far better than Windows and very popular!" While also claiming that Windows had a monopoly.

Linux replaced OS/2, but the claim remained the same.

The BSD crowd would also disagree with your claim.

Thad (user link) says:

Re: Re: Re:2 Re:

All of those other operating systems combined added up to less than 7% of the desktop market in 2001 when the lawsuit was decided. If you weren’t using Windows, you were an enthusiast who either bought niche products (Mac, Amiga) or spent a whole lot of time on the command line (no, I do not think that "the BSD crowd" would disagree with the assertion that installing an alternative OS involved "going to absolutely extraordinary effort").

Thad (user link) says:

Re: Re: Re:4 Re:

The fact remains that there were valid alternatives to Windows, a couple of them (Mac, OS/2) backed by very large companies and with no shortage of office applications.

Sure. Office applications which were either made by Microsoft, purchased by Microsoft, or which Microsoft engaged in anticompetitive behavior against.

Popularity is not the same as monopoly.

No, but 100% market share is. 93% is pretty fucking close.

And it’s not as if Microsoft arrived at its popularity simply by competing fairly and delivering a superior product.

Roger Strong (profile) says:

Re: Re: Re:5 Re:

Office applications which were either made by Microsoft, purchased by Microsoft,

At that point WordPerfect Office had pretty much the same features as Microsoft Office, and was backed by a large company.

If you wanted to avoid Windows? WordPerfect and Lotus 123 were both available on the Mac and OS/2 and a variety of Unix environments and were perfectly viable alternatives. AppleWorks/ClarisWorks was also available on the Mac. There were others.

93% is pretty fucking close.

No, it isn’t. Not when there at plenty of viable alternatives back by other large companies. It’s just popularity. Does Google have a monopoly on search engines given the existence of Bing, DuckDuckGo and the rest?

And it’s not as if Microsoft arrived at its popularity simply by competing fairly and delivering a superior product.

They were competitive bastards to the extent that their competitors were competitive bastards. They tried to make their products industry standards to the extent that others did the same. (Flash, PDF, Lotus Notes, etc.)

Look, I paid for OS/2 and REALLY tried to like it. But it simply WASN’T "a better DOS than DOS and a better Windows han Windows" as IBM claimed. Nor simply a better OS on it’s own merits. When IBM tried to copyright the term "crashproof" for OS/2, I could only laugh and comment that they should also copyright "Nothing could possibly go wrong."

Likewise I owned a couple Macs back then. Nice (but not great) OS, crippled by locked-in godawful hardware. I’ve loaded and used a couple machines with Linux and WordPerfect Office.

Windows 98 wasn’t great, but then neither were the alternatives. Windows 2000 WAS great. And rock-solid stable.

PaulT (profile) says:

Re: Re: Re:6 Re:

“At that point WordPerfect Office had pretty much the same features as Microsoft Office, and was backed by a large company.”

Did you miss the dirty tricks campaign used by Microsoft to convince buyers that only their office system would work properly with Windows? Makes fascinating reading if you’ve managed to be fooled into thinking quality had anything to do with it.

Plus, in the year mentioned by Thad (2001), Wordperfect had been all but killed off:

https://en.wikipedia.org/wiki/WordPerfect#Market_share

“While WordPerfect had more than 50% of the worldwide word-processing market in 1995, by 2000 Word had up to 95%; it was so dominant that WordPerfect executives admitted that their software needed to be compatible with Word documents to survive”

Any assessment of Microsoft’s market share has to be tempered with the knowledge that both consumers had been locked into using at minimum DOS-comptible products, and that Microsoft deliberately crippled competitors that tried to run such software outside of their own ecosystem.

ralph_the_bus_driver (profile) says:

Re: Re: Re:7 Re:

You just touched on part of the problem.

The third party software was not always compatible with MS. WordPerfect would always be problematic when opening in MS Word. MS Word wouldn’t open in WordPerfect.

Lotus 123 would not open in Word or the other way.

After the Antitrust case, MS did start allowing third parties to use source code. Today, I can use Open Office with very few issues going either way with Word.

Thad (user link) says:

Re: Re: Re:8 Re:

After the Antitrust case, MS did start allowing third parties to use source code.

No, they published their format specifications and licensed them for general use. There’s a difference.

Today, I can use Open Office with very few issues going either way with Word.

Jesus Christ, somebody’s still using OpenOffice?

The Wanderer (profile) says:

Re: Re: Re:9 Re:

I use LibreOffice on a reasonably regular basis, simply because it’s the most comprehensive office suite available for Linux that I know of. It’s not exactly ideal in a number of ways, but it does generally suffice.

LibreOffice isn’t quite the same thing as OpenOffice (or even OpenOffice.org, as I believe was its last name), but they do descend from the same codebase, and not all that long ago at that.

PaulT (profile) says:

Re: Re: Re:8 Re:

The issue you’re talking about is incompatibility between competing file formats. This can be a sign of dirty tricks, or just an unfortunate side effect of technology before proper standardisation. It’s not necessarily a sign of dirty tricks, though it can be used as a weapon by those willing to do so.

Microsoft does certainly have a history of making its formats deliberately incompatible. We can see this when OpenOffice gained in popularity – OOo prided themselves on the best compatibility possible with existing Office formats despite their deliberate obfuscation, and worth push their own Open Document format. Microsoft’s response to this was to enforce their new XML format which deliberately included a binary blob, ensuring that other formats needed to either not be fully compatible or violate the DMCA while attempting compatibility.

This is the kind of thing Microsoft were leveraging in the WordPerfect days. They used other dirty tricks to get people to use Word instead of WordPerfect, then the pain of switching file formats ensured people would be less than willing to switch back, even if they found Word not to be a better product. Hence the defacto monopoly which Roger seems to be bizarrely claiming didn’t exist.

Thad (user link) says:

Re: Re: Re:6 Re:

Does Google have a monopoly on search engines given the existence of Bing, DuckDuckGo and the rest?

Your analogy is disingenuous. Switching search engines is entirely different from switching operating systems.

That said, I think Google’s market share and business tactics are absolutely cause for concern. If the US government sued Google for antitrust violations, I would consider it warranted, though I’d rather see stricter privacy standards passed at a legislative level. (Not that either thing is likely to happen.)

They tried to make their products industry standards to the extent that others did the same. (Flash, PDF, Lotus Notes, etc.)

Yeah, I remember how Adobe mandated that when OEMs put its operating system on computers, they had to include a Flash shortcut on the desktop.

No, wait. What I meant to say was, your analogy is disingenuous.

It’s also totally irrelevant, because, as I’ve already noted, "other companies do it too!" is not a defense, it’s a distraction.

Nor simply a better OS on it’s own merits. When IBM tried to copyright the term "crashproof" for OS/2, I could only laugh and comment that they should also copyright "Nothing could possibly go wrong."

Your knowledge of IP law seems to be about on par with your knowledge of antitrust law. Words and phrases are subject to trademarks, not copyrights.

Windows 98 wasn’t great, but then neither were the alternatives. Windows 2000 WAS great. And rock-solid stable.

And which was the one that integrated the web browser into the shell to push its main competitor out of the market, and which one wasn’t?

Huh. Almost as if anticompetitive behavior results in poorer products that are worse for consumers.

Roger Strong (profile) says:

Re: Re: Re:7 Re:

Yeah, I remember how Adobe mandated that when OEMs put its operating system on computers

Above you make the point that search engines aren’t the same as operating systems, and yet here you try to equate apps and platforms with operating systems. Try comparing Microsoft with Apple when it comes to vendor lock-in.

And speaking of disingenuous analogies, Microsoft didn’t mandate that OEMs put its OS on their computers. They merely offered significant discounts for doing so.

The same goes for other software (anti-virus etc.) that got included on PCs. (It’s rarer today; instead you get the time-limited trial versions.)

I don’t know IBM offered similar incentives for OS/2, but I’d be very surprised if they didn’t. Apple policy regarding other OEMs was hardly an improvement.

It’s also totally irrelevant, because, as I’ve already noted, "other companies do it too!" is not a defense, it’s a distraction.

Again, I said, "They were competitive bastards to the extent that their competitors were competitive bastards." That’s not a defense of those practices. I just think it’s a tad fanboyish that only one company gets singled out for it.

Words and phrases are subject to trademarks, not copyrights.

Speaking of distractions. Fine, but my point stands. OS/2 wasn’t some wonder product crushed by anything other than competitive products and bad decisions.

(It reminds me a lot of Blackberry. IBM spent $2 Billion to replace OS/2 on Intel with WorkPlace OS on Power PC just as Windows really took off in the office environment. Much like Blackberry – once they got BBOS working really well as a modern touchscreen phone OS – switched to a new OS on a new hardware platform.)

And which was the one that integrated the web browser into the shell to push its main competitor out of the market, and which one wasn’t?

BOTH came with IE. Because…

a) Why wouldn’t they?

b) Nothing stopped you from installing Netscape Navigator or any other browser of choice. By then we were well into the internet age. It only took a moment to fetch a different browser.

c) Integrating it with the OS simply made sense. It became the standard document reader, replacing WinHelp. They could standardize the UI, making Windows Explorer look much like Internet Explorer, complete with forward and back buttons. You could customize folders and your desktop with HTML.

Not all of that worked well in practice, but it made sense. Whether your help files opened with WinHelp or IE4 made no difference regarding what browser you used to browse the web.

Thad (user link) says:

Re: Re: Re:8 Re:

Above you make the point that search engines aren’t the same as operating systems, and yet here you try to equate apps and platforms with operating systems.

No, here I make the point that apps and platforms are not operating systems.

And speaking of disingenuous analogies, Microsoft didn’t mandate that OEMs put its OS on their computers.

I didn’t say they did. I said they mandated that OEMs put IE on the desktop.

I don’t know IBM offered similar incentives for OS/2, but I’d be very surprised if they didn’t. Apple policy regarding other OEMs was hardly an improvement.

No matter how many times you tell me to look over there, I’m not going to look over there.

Again, I said, "They were competitive bastards to the extent that their competitors were competitive bastards." That’s not a defense of those practices. I just think it’s a tad fanboyish that only one company gets singled out for it.

Yes, it’s so weird how everybody’s only talking about Microsoft in response to a post about David Boies.

OS/2 wasn’t some wonder product crushed by anything other than competitive products and bad decisions.

Literally nobody but you has said a single word about OS/2.

BOTH came with IE.

That’s not the question I asked. I asked which one came with it integrated into its desktop shell.

b) Nothing stopped you from installing Netscape Navigator or any other browser of choice. By then we were well into the internet age. It only took a moment to fetch a different browser.

That’s simply not true. Most people were still on dialup in 2001 (10 million broadband subscribers, 50 million on dialup), and certainly in 1998 when the suit was first brought. It took a lot longer than "a moment to fetch a different browser".

c) Integrating it with the OS simply made sense.

No, it didn’t. It was a security and stability nightmare. It was not driven by developers; it was driven by management looking for ways to force IE adoption.

Roger, at this point you’ve repeatedly mischaracterized my statements, you’ve made claims that are simply mathematically false ("It only took a moment to fetch a different browser"), you don’t seem aware of the basic facts of the allegations in US v Microsoft (you don’t seem to be aware of the contractual language mandating that IE be on the desktop, or that the IE/shell integration was a move deliberately engineered to undermine Netscape, not a decision by the developers), and your arguments keep on returning to "Butbutbut Apple!", "Butbutbut Adobe!", "Butbutbut Google!", and, for some reason, especially "Butbutbut OS/2!" Those are no arguments at all.

It’s quite clear you’ve made up your mind and nobody’s going to change it; I’ve no doubt you’ve been repeating these same talking points for twenty years already, so it’s not as if I expect you to stop now. But I hope you at least see the irony in maintaining the same bullheaded stance defending a single company, defending your position through disingenuous analogies, distractions, and strawman arguments, impervious to basic and indisputable facts like broadband adoption rates, for decades, and then suggest that everybody else but you looks like a fanboy.

PaulT (profile) says:

Re: Re: Re:9 Re:

“And speaking of disingenuous analogies, Microsoft didn’t mandate that OEMs put its OS on their computers.

I didn’t say they did. I said they mandated that OEMs put IE on the desktop.”

He appears to be deliberately obfuscating the point so he’s not exactly wrong, just missing the issue. Even if you were saying what he claims you were, he’s wrong (though not technically incorrect).

MS offered heavy volume licencing discounts to manufacturers for preloading their OS on to their hardware. This obviously led to skewing the market both away from a bare metal setup where the customer would choose their own OS, and away from competing OSes who may not have been able to compete on price. Windows was effectively mandated on new computers.

At some point, certain manufacturers responded to the growing Linux desktop market by offering machines pre-loaded with Linux on hardware setups known to be fully compatible, thus taking the pain out of a minefield at the time (avoiding winmodems/printers, hardware not supported by manufacturers on Linux, etc.)., and also avoiding the “Microsoft tax” where Linux users had to pay for a copy of Windows with a PC from a major retailer despite the fact they’d never use it.

Microsoft’s reaction to this was to quietly inform the manufacturers that if they continued to expand these programs, they might lose the favourable discounts on Windows. An industry with such razor-thin margins as the big box PC manufacturers couldn’t afford to suddenly have a 50-90% increase in the software costs, and supplying an OS was now 100% necessary in the market, so many of these manufacturers dropped their Linux offerings or dropped them to virtually nothing.

So, while Roger is technically correct in his assertion that it wasn’t strictly a mandate, he’s wrong to suggest it didn’t have that effect. Why he’s so desperate to pretend that Microsoft did not have defacto monopolies in numerous areas by the end of the 1990s is another question.

DannyB (profile) says:

Re: Re: Re:2 Re:

Pointing out Mac OS (about 5% by 1999) and Linux (approx 0%) helps make the case against Microsoft.

Microsoft was engaging in behavior that led to the antitrust suit.

Microsoft saw a threat in these new emerging Web Browser thingies. OMG!!! It might be possible to build applications that make the OS irrelevant! And, of course, it eventually happened.

In 1995, Macs were easy to connect to the dial up internet. It had nice GUI applications for the staple applications: Usenet, FTP, Email and Telnet. Also Gopher. And this new web browser thingy: Mosaic, and soon Netscape. PC’s were difficult to set up for dial up internet access. I know, I helped several friends do it.

Bill Gates said the internet was just a fad. Well, of course. Because he saw the world entirely in terms of his business model.

Suddenly Microsoft woke up and smelled the internet! OMG!!! We need a web browser. So Microsoft found a company, SpyGlass who made a browser for the PC. Microsoft bought it for $100,000 up front + a royalty percent of sales. Microsoft renamed SpyGlass to Internet Explorer. And guess how many copies of Internet Explorer were ever sold? Zero.

Yet Microsoft invested $150 Million over time into development of Internet Explorer. Why? In order to turn the internet into Microsoft’s exclusive domain. No other systems should even bother attempting to connect. So IE got some deliciously addictive (and insecure!) extensions that allowed running Windows code in the browser, that depended upon having IE and Windows as your browser.

There already were emerging standards for how to write rich internet applications at the time. But Microsoft worked to make sure it’s unique features in IE were enough to attract a significant number of developers. Then at version 6, Microsoft just let IE stagnate. Having fractured the web, Microsoft had significantly “Microsoftized” the internet.

Microsoft made other efforts. IIS was intended to work “better” with IE. And Front Page also.

This is what led to the antitrust lawsuit. And it was well deserved.

Meanwhile, those mammals started coming out from their hidey holes and caves. FireFox rose from the ashes of Netscape. It got better and better. Over years, due to its clear superiority, its market share grew and grew. Long after the dust had settled on the antitrust suit, Firefox share was over 50% which prompted another crisis at Microsoft! OMG, we need to improve IE some more. Hence IE 7, 8, 9, 10 and 11.

During these years, real web applications came into their own. Now any modern business application is a web application. During the years of IE 7 and beyond, IE was the bane and thorn in the side of every web developer. But open source libraries were able to abstract away the differences between IE and actual web standards. Eventually Microsoft realized it had the laughingstock of a web browser and embraced modern web standards.

But look how long it took. And how much blood, sweat and tears.

I for one am glad that Microsoft’s best days are behind it.

Anonymous Coward says:

Re: Re: Re:3 Re:

Long after the dust had settled on the antitrust suit…

Second Modified Final Judgment (Originally Entered November 12, 2002; Modified September 7, 2006; Further Modified April 22, 2009)

                  V. Termination

. . . on May 12, 2011.

Aug 18, 2011 Joint Motion

. . . the expiration of the Final Judgments on May 12, 2011.

DannyB (profile) says:

Re: Re: Re:4 Re:

The litigation might still be stuck in the courts. The the dust had settled. Everyone knew Microsoft wouldn’t get any (effective) consequences for trying to monopolize the internet. And the industry had moved on. The fact that the gears continued to slowly turn in the courts had little effect.

It was clear they would not regulate the IE behavior — which they did not. By the time users were given a choice of browser, it hardly mattered.

An effective remedy would be to break up Microsoft into three parts: Microsoft A, Microsoft B, and Microsoft C.

Each part gets ALL of the current Microsoft products and split of the total resources. Now go compete with each other boys! Now each of A, B and C would be trying to make their products better and / or cheaper against the others. No more monopoly. If I don’t like what Microsoft A is offering, I can go buy Microsoft C’s product.

Roger Strong (profile) says:

Re: Re: Re:2 Re:

Seriously, you don’t think that IBM, Apple, Lotus, Oracle and the rest exerted pressure on THEIR partners to favor their products over others?

One of the manufacturers in my industry outright told their distributors, “If you want to keep selling our engines, you may not sell competing lines.” It led to some of those distributors splitting into two companies so that they could keep selling multiple lines.

And this was legal. Even the so-called “Microsoft Tax” never went that far.

Thad (user link) says:

Re: Re: Re:3 Re:

Seriously, you don’t think that IBM, Apple, Lotus, Oracle and the rest exerted pressure on THEIR partners to favor their products over others?

You keep going back to that well.

"Other companies are just as bad!" is not a defense, it’s a distraction tactic. That you keep trying to change the subject suggests you know just how weak your argument is.

Roger Strong (profile) says:

Re: Re: Re:4 Re:

"Other companies are just as bad!" is not a defense, it’s a distraction tactic.

As I said, "They were competitive bastards to the extent that their competitors were competitive bastards." That’s not a defense of those practices. I just think it’s a tad fanboyish that only one company gets singled out for it.

The only point I’m trying to make here still stands: The OP’s claim that "At the time, one could not own a computer without Microsoft." is simply wrong. Microsoft didn’t have a monopoly. There were perfectly viable alternatives, and many people used them. Popularity is not monopoly.

The Wanderer (profile) says:

Re: Re: Re:5 Re:

While I’m not saying you’re necessarily wrong… do you remember the "Microsoft tax"?

There was a period where, at least as far as I recall being able to determine, you literally could not buy a prebuilt computer with no OS on it – the manufacturer would insist on shipping it with Windows (and charging you for Windows), reportedly because they got discounts from Microsoft if and only if all their computers shipped with Windows.

I don’t know when that period ended, because IIRC I only bought one computer in that time period, and after that everything I’ve run has been built from parts. I definitely recall its having been a thing, though.

PaulT (profile) says:

Re: Re: Re:5 Re:

“Microsoft didn’t have a monopoly.”

They had a defacto monopoly, that is while they were competitors they were so small or underpowered that they could not effectively compete. For example, when every new PC comes with Windows, the fact that someone can choose after the fact to put a different OS on there does not mean that they don’t have a monopoly in the OS space. It’s a defacto monopoly since it’s difficult to but pre-constructed PC without the OS installed.

It is noted that you’re intent on plying word games rather than admit that no other OS than Windows existed to mainstream PC users of the time. It’s a very simple documented fact, and the fact that Microsoft had a market share a few points shy of 100% doesn’t suddenly mean they had enough effective competition to not be in a monopoly position.

Anonymous Coward says:

that witness, when he said a high school student would do this [write a range checking function], is absolutely right.

Having reviewed code written by high school students, college students, and self-identified professional programmers, I must disagree with the use of would in this context. Could is absolutely fair. Would greatly overestimates the awareness and reliability of practicing programmers. Failure to range check inputs is a notorious problem in the industry, responsible for countless bugs, many of them security sensitive.

DannyB (profile) says:

Re: Re:

Nonetheless, Alsup characterizes it correctly. Any junior programmer would certainly write this in well under five minutes. At this point in my career I would have spent more than 1 minute on a range check function like that. I would have thought of most of the act of writing a function declaration to be a lot of ceremony necessary to produce a reusable function.

discordian_eris (profile) says:

Lies, Damned Lies and David Boies

People need to remember on thing about lawyers, including David Boies. They are paid to lie. That is there main job. To represent their client to the best of their ability and spout whatever their client tells them too. Even when the client wants them to spout absolute BS. (see David Boies and the Oracle and SCO FUBAR.) It is just not possible to be a high profile attorney like David Boies and not be full of crap. This is why their are supposed to be so many rules and laws governing their actions. To contain their sociopathic actions. They are living examplars of the following quote (Out of context but relevant anyways.)

William F. Buckley, Jr, “I won’t insult your intelligence by suggesting that you really believe what you just said.”

Dan (profile) says:

Re: Lies, Damned Lies and David Boies

No, that is “on thing” (presumably “one thing”) people do not need to “remember” about lawyers, because it simply isn’t true. Lawyers aren’t allowed to lie. They aren’t allowed to lie to the court, to their clients, to opposing parties, or to witnesses. They aren’t allowed to lie directly, through intermediaries, or by presenting evidence they know to be false. This is one of the many reasons poor little Joseph Rakofsky got a mistrial for his first client.

Do some lawyers do it? Sure they do. But no, it isn’t part of the job.

David says:

Re: Lies, Damned Lies and David Boies

Lawyers aren’t paid to lie but to convince. Lying before court is not in their permitted toolbox, so they must not be caught at it. It tends to align with their interests, however, so plausible deniability and weaseling are seminal parts of many a successful skill set.

When Boies states

“I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”

David says:

Re: Re: Lies, Damned Lies and David Boies

Lawyers aren’t paid to lie but to convince. Lying before court is not in their permitted toolbox, so they must not be caught at it. It tends to align with their interests, however, so plausible deniability and weaseling are seminal parts of many a successful skill set.

When Boies states

“I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”

[Toggled "Use markdown", then continued typing which only registered on the Markdown button and sent the message on the next RETURN. Sorry]

you have to go through this sentence by sentence. It’s all truthy. "I regret having done this" and getting caught. "It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control." would be the court’s view. Naturally, For plausible deniability Boies would exactly have chosen a setup where he did not have to select and control individual investigators. That’s why you go to an intelligence actor in the first place. "I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article." translates directly into "If this requires intimidating or silencing those women or anyone else, I do not want to know about it. You have to do this on your own without reporting back such measures. Instead, report results. That’s the reason we are engaging someone with your reputation."

"That’s not who I am." translates to "I made sure you will not be able to prove intent beyond reasonable doubt."

The truth is that Boies is someone you go to in order to get results no matter the cost, and he sets up operations in a manner where, if things really blow up, everybody can deny being involved at the necessary depth.

Boies is no naive amateur. There is a reason for everything he does, and there most particularly is a reason for everything he can claim not to know (and likely does indeed not definitely know in actionable detail because it could cost him his license if he did). He is in the business of knowing everything that could help his client, so you can be dead sure that glaring omissions in his knowledge are intentional.

madasahatter (profile) says:

JUDGE ALSUP: If you know the language. Once you know the language, it is a five-minute proposition. – Judge Alsup learned enough programming to understand each language has its own idioms. Thus much of the code to solve a particular type of problem tends to resemble each other in a given language.

Boies is a POS who would sell his own grandmother and daughters into slavery if it would gain him an advantage (sue me slime).

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