USA versus Microsoft - the 14th week

Microsoft alleged that Feltenization would cause Windows to fail

by independent computer industry analyst Graham Lea

At a time when Microsoft should be gaining some of the lost ground by presenting evidence from its own witnesses, the company experienced its worst week so far in the trial.

David Boies, the Department of Justice's special trial counsel, cross-examined Microsoft's senior vice president Jim Allchin in a relentless three-pronged attack that made a major impact on the credibility of Microsoft's evidence and witnesses.

A key claim by Microsoft has been that only with Internet Explorer 4 (IE4) in Windows 98 could users get "the rich experience that comes from integration".

Twenty times, Mr Boies brought up a feature of Windows 98 and asked: "If you took a Windows 95 machine without any integrated IE technologies, and you added a stand-alone downloaded-off-the-web or bought-at-retail IE4, you would get the same rich experience that you say you got here?"

Each time Mr Allchin had to agree that the same functionality could be obtained by loading the original version of Windows 95 to which the retail version of IE4 had been added. Mr Boies concluded by asking if "that's what you mean by 'deep integration'?"
Mr Allchin replied that the product combination "becomes almost Windows 98", so destroying the claim that there are significant technical advantages in the merged Windows 98 product.

Windows leverage

The second attack was against Microsoft's claim that it had not integrated Windows 98 and IE to make life difficult for Netscape. Mr Boies produced a number of emails that Mr Allchin had sent that gave contrary evidence: "we must leverage Windows more. Treating IE as just an add-on to Windows which is cross-platformed loses our biggest advantage: Windows market share."

David Boies: relentless attack

Ben Slivka, a senior Microsoft employee, had been asked in a deposition if the web application program [Netscape Navigator] was a threat to the Windows operating system and if integrating the browser into Windows was a response to that platform threat. He had answered: "Absolutely" and "Yes" to the questions.

When David Boies pressed Mr Allchin about a deposition in which he had said that including IE3 with Windows was done to compete with Netscape, Stephen Holley, counsel for Microsoft, objected and claimed it was confusing the witness. Judge Jackson overruled him, saying "I don't find it confusing".

Explorer and Windows welded

Microsoft's third and most serious problem arose from its attempt to show that Professor Felten's prototype program to remove IE's browsing capability from Windows 98 could not succeed because IE is welded into Windows 98.

The court was shown a Microsoft-produced video demonstration that alleged that Feltenization caused a failure in running Windows. Professor Felten had claimed in December that as a result of some change by Microsoft, the Windows update feature stopped working after his program was run.

Microsoft had a copy of the source code of the program, and it was widely believed that Microsoft had found some way to stop it.

Microsoft protested its innocence. Professor Felten pointed out that Microsoft could do a much better job of a removal program than he had done in his prototype.

Microsoft had even admitted that Dell had been allowed to licence a version of Windows 98 with IE disabled.

Video tampering?

The video shown in court was not what it purported to be, and in freeze-frame mode it was clear that more than one computer had been used.

Nor did the commentary fit what it was claimed was being seen in the demonstration.
Mr Allchin admitted "I believe, from what I'm seeing here, that they filmed the wrong system". Judge Jackson interrupted him to ask: "How can I rely on it if you can't tell me whether it's the same machine or whether any changes have been made to it? It's very troubling Mr Allchin.
And I would feel much better about it if you had made the test yourself, if you had been there. . . . It simply casts doubts on the reliability, entire reliability, of the video demonstration."

Judge Jackson, with unprecedented praise, said that "Mr Boies has done a very professional job of discrediting those tapes". It was then decided that the demonstration could be repeated that evening with DoJ witnesses present.

Microsoft spokesman Mark Murray did not help matters by saying that "The first tape was showing ... computers in a studio to illustrate the points that we had discovered in the laboratory."
This was taken as an admission that the demonstration was to illustrate what Microsoft was claiming, and not what actually happened.

Demonstration shut-out

Professor Felten, his assistants, and attorneys from the DoJ were kept waiting for two hours in the lobby of the offices of Microsoft's lawyers, and were refused entry into the sixth floor conference room overlooking the White House to see the unpacking and setting up of the new computers being used for the repeated demonstration.
This created a grave suspicion that there might have been some interference so that the demonstration would show what Microsoft wished it to show.

In the event, Mr Allchin was unable to demonstrate the alleged performance degradation of Windows 98 performance in a Feltenized machine.

At the end of the day, Judge Jackson said he wanted to see counsel in his chambers. It is not known exactly what was discussed, but the indications were that the judge was very concerned at the credibility of Microsoft's witnesses.
Professor Schmalensee had admitted to relying on data that Microsoft staff had said were unreliable, and Paul Maritz's testimony contradicted that of several other witnesses.

Michael Devlin, President of Rational Software Corporation, spent a morning giving evidence for its business partner Microsoft. His support was hardly surprising. Microsoft has only one further non-Microsoft witness, from Compaq.

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Graham Lea is a leading computer industry analyst specialising in Microsoft who will be following the case for News Online.