By Siobhan Kennedy in Connecticut
Bristol Technology Inc’s case against Microsoft Corp is nothing more than a get rich quick scheme orchestrated by company officials as an alternative to selling its products, a lawyer for Microsoft claimed yesterday. Addressing the jury during the closing arguments in the Connecticut court house, Microsoft attorney, David Tulchin said the company did all it could to keep negotiations open with Bristol but all the while, the tiny software firm was secretly working to its own agenda and had no intention of reaching a compromise that suited both parties. They wanted a lawsuit because they wanted to get money for their ‘sue Microsoft for money’ business plan. They said let’s not go out and work for a living….let’s get a jury to give us $263m, $100m for Ken Blackwell and $100m for Keith and Jean Blackwell.
Summing up the evidence of the last ten weeks in its antitrust case against Bristol, Tulchin argued that Bristol had known all along it would never get full access to the Windows NT source code but had enlisted the help of high-flying New York public relations firms and expensive lawyers and expert witnesses to paint an entirely different picture. Everybody roots for the little guy against that big nasty Microsoft, he told the jury, referring to the David versus Goliath press material the PR firm had drawn up to illustrate its case against the software giant, but this is not a PR plan, it’s a court of law. During three hours of detailed and often painstaking arguments, Tulchin re- used a series of company emails, memos and letters to try to prove that far from refusing to deal with Bristol – one of the firm’s main antitrust claims – the company did all it could to rope the software firm into a new contract. Even when Microsoft drew up the terms of a new agreement, Bristol still didn’t respond. I wonder why? he asked the jury sarcastically, because the ‘We sue Microsoft for money’ business plan was already in the works.
At the heart of Bristol’s case against Microsoft is a contract the two signed in 1994. Under the terms of the now famous Wise agreement, Bristol was entitled to use Microsoft’s Windows NT source code to create its Wind/U product, software that enables developers to port Windows applications to the Unix operating environment. Bristol contends that Microsoft promised full access to future versions and releases of the code but when the contract came up for renewal the software giant reneged and told Bristol it could only have access to a subset of the code. Moreover, Bristol argues, that subset – which it claims amounted to about 5% of the full code – would only let its developers write programs for client hardware, effectively denying them access to the server market, which Redmond wanted for itself. After a series of negotiations throughout 1997 and 1998, Bristol filed a lawsuit against the software giant on the grounds that the talks were going nowhere and that Bristol was fast going out of business. Under antitrust laws it alleged that Microsoft refused to deal with Bristol and that it used its monopoly in the PC systems market to break into, and attempt to dominate, the server and workstation space, thereby harming competition. It also claimed that Microsoft’s actions had violated the Connecticut Unfair Trade Practices Act (CUTPA).
Attempting to show those allegations had been proven in court, Bristol’s attorney Patrick Lynch opened his closing argument by comparing himself to Luke Skywalker, the hero of the film Star Wars. Like Skywalker, Lynch said he felt like he was facing the Death Star [Microsoft] with the last plane and only one tank of gas. Appealing to their emotions, he said Bristol was a small company and that the Blackwells were real people much more like you jurors than anyone at the executive level at Microsoft. Throughout the ten weeks of the trial, he said that Microsoft had done its best to argue the case was like a contract case, but he urged the court to see it for what it really was.
This is a case about antitrust laws and laws about unfair competition, he said, it’s about whether Microsoft behaved in an improper way when it launched the Wise program and then withdrew it later and reduced it to an apple core of technology. Was it fair, he asked, that Microsoft had made promises to the whole industry, to AT&T, to Bristol and its customers – General Motors, Lockheed, Boeing, that they could safely bet their companies’ data processing strategy on the promise that it would continue to deliver its source code and then withdraw that code when it felt competition was hoting up? Was it immoral, unethical, oppressive or unscrupulous (as CUTPA charges) that the software giant encouraged people to sign on knowing, as one email showed, that it could pull the plug when it no longer needed them? Didn’t Microsoft really know that not keeping to the Wise agreement, and changing its terms, would have a seriously damaging affect effect on those relying on it?
Those, and numerous other questions, were put to the nine-person jury during Lynch’s two-hour closing argument. Addressing the monopoly question, Lynch drew on another popular film subject: the Mafia. When asked to consider giving away full source code, the attorney said Allchin had testified: Give me one good reason why we should consider this…and any good reason should include how we can make more money and kill Unix, Sybase and Oracle. In court, Allchin denied that he meant his words seriously, referring to his message as locker room talk. But if it was real locker room talk, Lynch said, then Microsoft would go back out onto the field and play the game according to the rules. You win or you lose, no-one gets slaughtered. But instead, like the case against Mafia boss John Gotti, Microsoft purports to play by the rules, but you find a series of shallow graves, he said.
Microsoft’s Tulchin came back by drawing on evidence to show that Bristol, not Redmond, was guilty of territorial behavior. He quoted from an internal document where Bristol stated its explicit goal was to put all competitors out of business….to attack and dominate all core markets in which we compete. Tulchin accused Lynch of editorializing around emails and memos. What you heard was two hours of argument, not evidence. Bristol set about to give examples of Microsoft’s conduct, not just color in emails. He added: Sometimes lawyers hope that if they tell you they see smoke, somewhere you’ll conclude there must be a fire, Tulchin said, I ask you to think of a way to evaluate [the evidence]. Don’t buy someone else’s version of a fire. It’s up to you to prove it’s there. As to Bristol’s argument that the Unix market would suffer because of Microsoft changing the terms of Wise, he said: There’s no evidence, zero, nothing. No one has come in this courtroom…not a single person…and said there’s evidence that the sellers of Unix software have been affected by Microsoft’s dealings with Bristol.
In a long and often animated performance, which drew more on theater techniques than anything Lynch had tried to deliver, Tulchin said that Redmond’s CEO Bill Gates stated in evidence that he supported Wise, he always has and does today. Jim Allchin, Redmond’s SVP also testified that we were trying over and over to come to a deal with Bristol. Even Blackwell himself, Tulchin said, had admitted that being associated with Microsoft had contributed to growth in Bristol’s revenues. Tulchin reiterated what he’d said all along; that Microsoft was willing to negotiate before Bristol had filed its lawsuit, after Bristol had filed the suit and even now, in the middle of the case itself. So who’s trying to hurt who? he asked. Microsoft is still in Wise, with Mainsoft and with Bristol, under its original agreement. If goes against antitrust laws to dismiss Wise, then isn’t it pro-competition to continue it?
Today, having heard both closing arguments, the judge will give the jury her one hundred page summary, whereupon they will be dismissed to ponder the evidence and reach a verdict. There’s no telling how long that might take, but court room pundits say it’s likely they’ll come back with a decision sooner, with the next week or two, than later. á
