New York Times
October 30, 1998
In Eighth Day, Microsoft Trial Slows Its Pace
WASHINGTON -- In its eighth day, the Microsoft antitrust trial shifted into a slower gear as a senior executive of America Online was led through a painstaking cross-examination in which he was asked to define technical acronyms and parse the fine print of contract terms.
By the end of the day, Microsoft Corp.'s defense team had made a few points and scored one clear victory -- it had dragged the cross-examination out so long that the government did not have time to show videotaped testimony from the company's chairman, Bill Gates.
Though not scheduled to appear in person, Gates is the absent star of the trial. In the opening session last week, the government used a few minutes of the lengthy taped deposition, showing an apparently uncomfortable Gates saying he was not involved in planning moves that Microsoft made in the Internet software market which the Justice Department asserts were illegal.
The Justice Department contends that when set alongside contradictory internal e-mail that Gates himself wrote about those moves, the taped deposition is incriminating.
"We think the videotape offers a pretty fair opportunity to judge Gates' credibility," said David Boies, the Justice Department's trial lawyer.
Microsoft replies that the videotaped deposition shows that Gates is telling the truth, but is understandably not being too cooperative as the target of a government prosecution.
"What you will see is a witness that doesn't let the government put words in his mouth, and a witness who repeatedly defends Microsoft's right to innovate," said Mark Murray, a company spokesman.
But the taped testimony will not be seen until sometime next week, at the earliest, thanks to the methodical questioning style of Microsoft's lead lawyer, John Warden.
The Justice Department and 20 states suing Microsoft have vowed to show five or six hours of the 20 hours of the pretrial deposition of Gates, taken in August. Yet they want to do it between the scheduled appearances of witnesses at the trial. Court sessions are not held on Friday, and the next government witness, Avadis Tevanian, a senior vice president of Apple Computer is scheduled to take the stand on Monday morning.
In court on Thursday, Warden used his second day of cross-examining David Colburn, a senior vice president of America Online, to try to portray Microsoft's dealings with its business partners and competitors as standard practice in the computer industry.
The government says that Microsoft used its monopoly power in personal-computer operating systems to persuade America Online, the United States' largest online service, to agree to an exclusionary deal that stifled competition in the market for software used to browse the World Wide Web. Microsoft's main rival in the browser market is Netscape Communications Corp.
In March 1996, America Online says it agreed to make Microsoft's Internet Explorer its main browser in exchange for a choice spot on the Windows desktop -- the prime real estate in computing, since 90 percent of new personal computers are shipped with Microsoft's Windows operating systems.
Microsoft replies that there is nothing exclusionary or illegal about its contract with America Online. To further his "everybody does it" defense, Warden focused on America Online's contract with Netscape for a so-called instant messaging feature within its online service. Instant messaging allows two computer users who are online at the same time to exchange typed messages with each other immediately -- the equivalent of a typed version of a telephone conversation.
The language of the September 1997 contract between Netscape and America Online does prohibit America Online from promoting software from Netscape's major rivals on its instant-messaging screens.
"Why," Warden asked, "are these prohibitive provisions in the agreement?"
Colburn replied that as part of the deal, Netscape wanted to make sure competitors' products were not promoted -- precisely the kind of conduct Microsoft is accused of doing illegally.
When he got his turn with the witness, Boies sought to point out that things that are legal for most companies often are not legal for a company with monopoly power, which the government alleges Microsoft possesses.
Besides, Boies asked Colburn whether its instant messaging feature was a method for distributing browser software.
Not ordinarily, Colburn replied. Typically, he said, "a user who comes to the instant messaging area already has a browser."
Warden finished by asking Colburn whether it was true that although Microsoft's Internet Explorer is the default browser shipped with the online service's software, "America Online subscribers have the free and unfettered opportunity to use Netscape's browser if they so choose?"
"Yes," Colburn replied, "if they can figure out how to get it. It's not easy."