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Monday, 29 March, 1999, 07:49 GMT 08:49 UK
USA versus Microsoft: The first two days
US and microsoft flags
The USA vs Microsoft: Trial of the century?
By independent computer analyst Graham Lea

The first two days of the case of the United States against Microsoft in the federal court in Washington DC have shown that there is a marked difference of style between the two sides.

The main players are appearing before Judge Thomas Penfield Jackson who has been a federal judge for 16 years and was appointed by President Reagan.

David Boies is the special trial counsel for the US Department of Justice, and a veteran of the antitrust case against IBM that was abandoned in 1982 after 12 years.

Boies, who uses a computer to bring up his exhibits on a large screen and monitors in the court room, is a Democrat from Illinois. He speaks without notes, and wears black, high-topped sneakers.

Computer illiterate

His opponent is the more conservative John Warden from Microsoft's main outside law firm, Sullivan and Cromwell.

He used an old-fashioned overhead projector to illustrate his points, admitting that he does not use a computer, but not confessing that his firm uses the WordPerfect word processor, now owned by Corel, a Microsoft rival.

So far Warden, who is a Republican originally from Indiana, appears to have established a better rapport with the Judge.

The first day and a half were taken up with opening statements from each side. Boies outlined the government's case against Microsoft and drew special attention to how Microsoft allegedly set out to target Netscape, the leader in browser development.

Gates slammed

The dramatic highlight of the first day was when Boies showed extracts from the three days of videotaped questioning that Bill Gates had to undergo in August.

It was alleged that Microsoft illegally tried to persuade Netscape to agree to divide the market for browsers, with Microsoft producing one for Windows, and Netscape being given the chance to produce one for other operating systems like Unix and the Apple Mac, without competition from Microsoft.

There was considerable tension in the court when Gates' videotaped responses to questions about a meeting between Microsoft and Netscape in June 1995 did not support the documents that the DoJ had obtained from Microsoft.

Suffocating competition

Gates claimed that the first he knew of the allegations was when he read a newspaper report in April this year. However, internal Microsoft documents tell a different story - that Gates was allegedly at the centre of a deliberate move to "cut off the oxygen supply" to Netscape.

The first moves by Microsoft were not to charge users directly for its browser, and to merge it with Windows to make it difficult for Netscape to compete.

Boies also claimed that Microsoft had put pressure on other companies, like Apple, AOL, and AT&T, to use only Microsoft's Internet Explorer browser.

He said it suggested to Intel that it would collaborate with AMD, an Intel rival, unless Intel agreed to stop the development of a Java-based product, and to stop the development of Native Signal Processing, a technology that could be used to bypass Windows to some extent.

To the surprise of most people concerned with the case, Warden did not attempt to deal with the points that the DoJ had raised, but slowly read a prepared text.

Uncivil business

He said that the antitrust laws were "not a code of civility in business" and that Microsoft was not obliged by law to be soft on competitors.

He maintained that Microsoft's contracts with Internet service providers were "unobjectionable and pro-competitive", which was in sharp contrast to the evidence thathas come to light so far, particularly from AOL, for example.

Slow progress

The first witness was Jim Barksdale, the CEO of Netscape. After three hours, Warden's cross-examination had only reached page 13 of the 127-page Barksdale deposition, which was formally made part of the court record to save time.

If the trial continues at this speed, it will last for several months rather than the forecast six to eight weeks. This may indeed be Microsoft's stratagem: to make the trial go on so long that many people become bored with it.

This would also allow Microsoft more time to continue preparing its case; to use its formidable public relations machine to put the best spin possible on what is happening; and to consolidate its position in markets that it does not yet dominate, lest some restraints be introduced by the court as to how its does business.

Meanwhile, it is apparently business as usual at Microsoft.

Graham Lea is a leading computer analyst specialising in Microsoft and who will be following the case for News Online - his views do not represent those of the BBC.


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