Vista Capable Lawsuit Is Too Capable
link: original article - section: windows
It's time that Microsoft settled the Windows Vista Capable lawsuit, before the PR—and quite possibly legal—damages escalate.
The judge's decision to compel testimony from Microsoft CEO Steve Ballmer must be the end. No matter the outcome, Microsoft cannot win this lawsuit. The case may be winnable in the court of law, but not in the court of public opinion. More importantly, the company risks exposing its chief executive to unnecessary scrutiny and liability.
Bloggers and journalists singling out Will Poole as the key decision maker are wrong. There is no lone gunman here. There simply is no way that Will alone had authority to override the objections of Jim Allchin, who was co-president of the division responsible for Windows. (Conveniently, Will no longer works for Microsoft.) The decision to deal with Intel had to come from somewhere else—maybe Jim's co-president, Kevin Johnson, who has since left Microsoft, or someone higher up. It's the higher-up person plaintiff attorneys are after: Steve "The Buck Stops Here" Ballmer. Microsoft should settle as quickly and as quietly as possible.
There comes a point in any interaction, particularly legal matters, where pragmatism must supersede projected outcomes. The judge has so narrowed the scope of the case, I doubt that it's winnable. Surely Microsoft attorneys know this. What's that saying? You can win for losing? Microsoft can now only win by losing.
Quick recap, before I continue: In January 2006, Microsoft suddenly removed WDDM (Windows Display Driver Model) from Windows Capable logo requirements. Microsoft's OEM partners, HP in particular, had heavily invested in meeting the WDDM requirements. From e-mail disclosed during the Windows Vista Capable lawsuit, Microsoft appears to have lowered the standard to accommodate Intel, whose then-current family of graphics chip sets didn't comply with WDDM. The resulting change led Microsoft to introduce two logo programs and meant that the majority of PCs shipped during first half of 2006 were incapable of running one of Vista's most visible enhancements—Aero Glass user interface.
One way to view the action: Two monopolies colluded to reduce the standard of art for graphics chip sets. The industry trend had been improving capabilities, and Windows Vista required more graphics capabilities than adopted standards in 2005 and moving into 2006. From that perspective, it is simply inconceivable that Microsoft would take any action that would reduce the standard, but that's certainly what happened nearly three years ago.
A few months back, plaintiff attorneys contacted me about becoming an expert witness in the case. We spoke on the phone for about an hour late on a Friday afternoon. I only momentarily considered taking on such a role, which also would have required my testifying in court. We never discussed money, but the acquaintance who set up the call said the lawyers would likely pay tens of thousands of dollars. I could have used the money—more so during this recession—but I never seriously considered becoming an expert witness, because:
* Journalists cover the news, they don't make it.
* There is inherent conflict of interest working for people who are suing the company that I cover as a journalist.
* There's burning and bridges and burning bridges; my distant relationship with Microsoft would likely become none at all.
As I listened to the attorneys, another reason formed: Their theory of events didn't jive with what I observed in the marketplace or saw in released court documents. Based on the evidence that has been made public and the amount of consumer confusion caused by Vista Capable stickers on new PCs, there is a winnable case, methinks. But the judge's narrowing of the scope of the case and plaintiff attorneys' theories about what logo program started when and for what reason make winning tough to impossible. This is where I insert the qualifier that I am no attorney.
