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AT LARGE: Courting disaster

AT LARGE: Courting disaster

It's good to see lawyers getting back into IT, don't you think? There was a while there, in the early part of last decade, when the industry seemed to have tired of frivolous lawsuits and decided to get on with the business of business. Boring.

Frivolous lawsuits are what make this industry fun to watch. Great products, innovative business approaches - these are all well and good, but only of interest to those they directly affect. You want the general public involved, you need a battle. A bloody battle, with accusation and counter-accusation, intrigue and counter-intrigue. Lies, theft, bullying - high drama.

That's why the early bit of Microsoft vs DoJ was interesting. Microsoft, the "bad guy", was accused of abusing its position in the industry to kill, crush and destroy Netscape, the "good guy". According to its accusers, it had broken its promise not to tie application sales to operating system sales by integrating a Web browser into Windows. That was just not the done thing. Yah boo hiss.

Hands up everyone who forgot that that was what it was about in the first place. I know one person who did: the US Government's lead attorney, David Boies. On numerous occasions throughout the trial, he has made statements to the press that indicated he was trying to prove a case that was not about Netscape, or browsers, or illegal tying. He was trying to punish Microsoft for everything it has ever done wrong.

Amazingly, he won. He essentially argued to the judge that "gosh, you know, EVERYBODY KNOWS Microsoft is a monopolistic bully". And the judge's response was "golly gee, Dave, I guess you're right. Let's do something about it, shall we?". This won't hold - the show will go on.

Meanwhile, elsewhere, the Napster suit is shaping up into something interesting. Napster, in case you don't know, is a network that allows people with a collection of MP3 files to publicise what MP3s they have, and to see what MP3s other users have. They can then copy them around, share them, play them in the shower, whatever.

But the recording industry doesn't like it. It likes to get money for the product it produces (go figure), and Napster isn't exactly paying a lot. In response to a threatened lawsuit by virtuoso ensemble Metallica, Napster de-registered thousands of subscribers to its service whom Metallica accused (by name) of violating copyright. It then reinstated these members, saying that "sharing" MP3 files does not violate copyright. Metallica has now filed suit, along with Madonna, someone called "Dr Dre", and no doubt a variety of others will join the fray. The stage is set. Bit of biffo, what?The best bit is that Napster has hired David Boies to defend it. He also, for the history buffs, took part in IBM's ill-fated defence against anti-trust charges 20 or so years ago. I can just picture his defence of Napster: "Gosh, you know, music wants to be FREE, man." No doubt he will focus on whether or not Madonna really deserves all that money. Get Roger Ebert to testify that Shanghai Surprise is a really lousy movie, that kind of thing.

There's one other lawsuit I'll mention here. Adobe Systems is suing a Mac info Web site for publishing confidential company information about the upcoming release of Photoshop 6.0. Now, I have to make something clear here: I like Adobe. I use its products often and recommend them to others. I also have friends who work for the company, and I wish it no ill will whatsoever.

But this is ridiculous. Trade secrets are what IT news services thrive on - being the first to publish something is a great way to go from being a small player to a somewhat bigger player. The site got hold of official confirmation of facts that had already appeared on other Web sites as rumours. Their publication on the site in question carried no more weight than the rumours, until Adobe filed suit.

There's a culture of confidentiality and "inside info" between tech companies and tech press, and often the lines are blurred. Sometimes the non-disclosure agreements we sign contain so many loopholes there's no point signing them.

But the press has commercial concerns too, and this site probably saw that the benefit it gained by publishing this info when it did easily outweighed any potential harm to Adobe - and I'd say it was right. I'd like to know how Adobe would have reacted if it had been an IDG site, or some other big player, not a smaller outfit.

And there's the crux of it. Whatever the merits of its argument, Adobe is attacking a small independent publisher. What's more, it's a small independent publisher in the Mac market. This is, in every sense, the hand that feeds. If Adobe is wise (and I believe it generally is), it will drop the suit before it gets out of hand.

Or, if it feels it must continue the suit to save face, at least hire David Boies to prosecute.

Matthew JC. Powell bears no ill will to Metallica either. Contact him on mjcpowell@ozemail.com.au


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