The New York Times
November 25, 1998


A Day of Hostile Questions in Microsoft Trial


WASHINGTON -- An economist testifying on behalf of the government in its antitrust suit against the Microsoft Corp. sat through another day of hostile cross-examination Tuesday, but Microsoft's lawyer failed to budge him from his opinions.

Michael Lacovara, the Microsoft lawyer who questioned Frederick Warren-Boulton for a third day Tuesday, at one point referred him to a treatise that Microsoft Chairman Bill Gates had written in 1996 about the Internet and personal computers.

"Microsoft's approach is to make Windows so Internet friendly that no one will want a separate browser," Gates wrote. "Our goal is to meld the best of the PC with the best of the Web, creating a single world of great promise."

When Lacovara asked Warren-Boulton if he had any problem with that, the witness said the result would be "a world of great promise -- to Microsoft."

So it went through the day. The court adjourned for a Thanksgiving break, and Warren-Boulton was to take the stand again Monday morning. U.S. District Judge Thomas Penfield Jackson, clearly impatient with the slow pace of this cross-examination, admonished Lacovara that he expected him to finish on Monday. Lacovara promised to work through the weekend cutting his questions.

With an impish smile, Warren-Boulton asked: "Would you like some help?"

Warren-Boulton is an important witness in the sense that the government wants him to lay the factual foundation for the its case -- that Microsoft is in fact a monopoly, meaning that the antitrust laws do apply.

Microsoft's approach appears to be to challenge him in so many areas that he will end up making one or two statements, inadvertently or otherwise, that Microsoft can use against him.

For example, after Lacovara questioned the witness for a full day on Monday, Mark Murray, Microsoft's spokesman, stood on the courthouse steps and declared: "The government's own witness, under oath, said he saw nothing wrong with Netscape adding new features to its Web browser, even back when Netscape had a dominant share of the browser market.

"The government is offering a double standard here -- one standard for Netscape and another for Microsoft."

That resulted from an off-hand observation Warren-Boulton had made on the stand that Netscape had added features and additional small applications to its World Wide Web browser over the years.

Once again, America Online's acquisition of Netscape Communications worked its way into the trial. Microsoft eagerly asserted that the deal was sufficient grounds for the government to drop its lawsuit.

To that, David Boies, the government's lead attorney said: "That's about the sixth time during this trial that Microsoft has declared that the government's case is dead. The government has no intention to withdraw the case, and I think Microsoft knows that."

In his eagerness to embrace the deal as part of Microsoft's defense, Lacovara overstepped at one point, asking a question based on the assertion that Sun Microsystems, Microsoft's arch competitor, would, as Lacovara put it, acquire Netscape's Web browser as part of the transaction.

Startled by that, Jackson leaned forward in his chair and asked, "Is that really the case?"

Lacovara assured him that it was. "It was reported on MSNBC this morning," he explained.

But it was inaccurate. As part of the three-way deal, Sun Microsystems will distribute Netscape's business-level server software for three years. America Online will maintain control of Netscape's Web browser.