By Jo Maitland in Washington
– Judge Thomas Penfield Jackson attempted to lighten up the proceedings here in Washington this week by reading from a fictional complaint sent to a software company. It went something like this…A customer has upgraded a program called Girlfriend 1.0 to Wife 1.0 and is having trouble running programs such as Poker Night 10.3 and Beer Bash 2.1. This is a very common problem, Jackson said, winning laughs in the court. Wife 1.0 is an operating system and designed by its creator to run everything. He went on…when Wife 2.0 comes along you then hit resources problems, incompatibility issues with Wife 1.0 – and you end up with a big problem on your hands, he said. Rumors flying around the press camp after Monday’s proceedings were that Judge Jackson will take advantage of any moment in court that might break the often tedious trawling through technical and economic background documents in the case. This was one of several fictional e-mails – frequently about women – read by the judge and, according to the lifers that have been covering the trial since it began over eight months ago – he is on his third wife.
– He spoke rarely during the day on Monday but, when he did, all sides sat up. MIT economist Dr Schmalensee is Microsoft’s last rebuttal witness to take the stand and attempted to turn the government’s case on its head by saying that consumers had benefited from Microsoft’s actions and strategy. Referring to the many emails and documents that the government used to illustrate Microsoft’s alleged predatory intent, Schmalensee said economists would not attach a high weight to intent. He argued that despite aggressive competition and tough language (such as internal emails at Microsoft which stated, ‘we’re going to kill them,’ referring to Netscape), none of Mircosoft’s actions impeded competition. The judge interrupted, saying that he could see why economists in the business of an academic discipline may not want to include intent, but, you know this is what courts do everyday. Schmalensee replied, of course your honor.
– On Tuesday morning, both sides had the opportunity to present documents to the court which they believe underpin the crux of their cases. Most of the material was under seal or restricted from the public but the handful that did get presented from the government’s side where mainly from the testimony of Barry Schuler, AOL’s president of interactive services, who took the stand in May. The government read from Schuler’s public testimony which said AOL believes that browsers have dried up as a potential revenue stream. There was a lot of concern that the browser business was dead, Schuler said, and we didn’t want to evaluate the value of the deal based on browser market share. Apparently, AOL believes that stand-alone browsers have no commercial value now that Microsoft’s Internet Explorer has been built into Windows 98 – the government’s point exactly. Microsoft predictably enough, thought the opposite was true and at the time Microsoft’s general counsel William Neukom said: From a legal standpoint, this proposed deal pulls the rug out from under the government.
– It was then Microsoft’s turn to refresh the judge’s memory, which it did by pointing to public relations documents from AOL and Netscape at the time of the merger. Microsoft said these show how the companies plan to integrate and expand the browser and portal as a platform, suggesting the business was very definitely alive. Then the Microsoft attorney asked to show the court a second attempt at a videotaped demonstration to prove that Internet Explorer is an integral part of Windows. The original demonstration was thrown out by the judge in February, when lead government attorney David Boies spotted that Microsoft had done the demonstration on two different PCs – meaning that one could have been prepared especially for the trial. The government immediately objected to the possibility of a second demonstration stating: This is way too late, Microsoft has already had two depositions and two chances on the stand to refute Professor Edward Felten’s demonstration that the browser can easily be removed from Windows and is therefore not an integral part of the operating system and, to offer this tape now without foundation or cross-examination is unacceptable, the government attorney said. The judge agreed with the government and said it could be included in the overall evidence but that it was too late to introduce it now.
– Yesterday, when Microsoft attorney Michael Lacovara requested to read from a document that he said would take approximately 25 minutes, the judge asked, How much of it is superfluous? suggesting he thought much of it might be. Lacovara moved on to something else. From ComputerWire’s observations of the week so far, Judge Jackson has seen all he needs to see in this case and it looks more and more likely that he will find in favor of the government.
