Tech Industry

Caldera takes on Windows 95

A federal magistrate agrees to let Caldera amend its antitrust suit against Microsoft to include evidence concerning Windows 95.

After receiving permission from a federal magistrate judge, Caldera has amended its private antitrust lawsuit against Microsoft to include evidence concerning Windows 95.

Up to now, the suit has been limited to alleged wrongdoing concerning Windows 3.1 and MS-DOS, older versions of Microsoft operating systems that slowly are being phased out. The decision means that Caldera can add its voice to a growing chorus of critics who claim that Microsoft engages in anticompetitive practices when designing and marketing its dominant Windows 95 product.

It also could prove to be a significant boon to Caldera's case.

"Until the court allowed us to include Windows 95 in our lawsuit, the case we've had has been very historical in nature," said Lyle Ball, a spokesman for Caldera. "Now it includes current behavior, so we get to use evidence we've gathered post-1995 to also prove our allegations against Microsoft."

Caldera alleges that Microsoft illegally tied MS-DOS software to Windows and engaged in other anticompetitive practices intended to quash DR-DOS, a competing operating system that Caldera acquired from Novell. Microsoft has denied the charges.

Two weeks ago, U.S. Magistrate Ronald Boyce of Salt Lake City ruled at a hearing that Caldera was free to amend its complaint to include allegations that Microsoft illegally tied MS-DOS to Windows 95. In addition to providing Caldera with more ammunition to bolster its charges, the ruling could allow the closely-held Utah software maker to collect substantially higher damages should it succeed in proving its case.

At a hearing slated for tomorrow, the court is expected to hear Microsoft's request to delay the start of a jury trial scheduled for November. Caldera also plans to raise issues concerning the fact-finding procedure of the case, known as discovery.

Rich Gray, an antitrust attorney with Bergeson, Eliopoulos, Grady & Gray, said that the decision is a clear victory for Caldera because the company is now allowed to introduce "potentially explosive" evidence to a jury. He warned, however, that Caldera has by no means won the war.

"It certainly breathes life into an important lawsuit, but Caldera still has a lot of work to do," Gray said. For instance, he added, the company will have to demonstrate that there were no technological justifications for tying Windows software to MS-DOS. Caldera also must demonstrate that, were it not for Microsoft's allegedly anticompetitive activities, DR-DOS would have gained significant market share. Neither allegation will be easy to prove, Gray said.

Caldera filed its case in July 1996, alleging that Microsoft unnecessarily tied MS-DOS to Windows and made false promises, known as vaporware announcements, in order to eliminate DR-DOS. The suit is just one of a number of actions taking aim at Microsoft's allegedly anticompetitive practices.

The Justice Department, for example, has alleged that Microsoft is violating the terms of a 1995 consent decree by requiring Internet Explorer to be shipped with Windows 95. The DOJ also is in the midst of a much broader investigation of Microsoft practices and is investigating deals the software giant has made with content companies and Net broadcasters.

Additionally, at least 11 states are looking into Microsoft's business practices, as are the Senate Judiciary Committee and enforcers of fair competition in Japan and Europe.

A Microsoft spokesman said the ruling was little more than procedural in nature and would bear no effect on the outcome of the case. "We do not believe that this new allegation has any legal or factual substance whatsoever, and we look forward to proving that in court," said Microsoft's Jim Cullinan.