MS-DOJ: The reporters weigh in

The people who covered this remarkable confrontation offer theirperspectives as the New Year approaches.

At its halfway point, the remarkable courtroom confrontation between the world's biggest independent software maker and the federal government, was topic Numero Uno in the computer industry.

And for good reason: The Microsoft antitrust trial featured enough twists and subplots to keep the cyber-chattering classes in thrall.

Was mighty Microsoft guilty? Could the Department of Justice prove its case? And how would the fallout affect the computer business?

Tough questions to answer, but we asked the reporters and editors who have covered the trial for the Ziff-Davis news organization to share their perspectives.

Charles Cooper
For ZDNet's Charles Cooper, the sporadic somnolence of Judge Thomas Penfield Jackson set the tone for what turned into a predictable "he-said, she-said" faceoff between Microsoft and the DOJ.

Even during the duller moments of the trial -- which were unfortunately many -- the spectators in the peanut gallery could always amuse themselves by counting the number of times the hanging judge nodded off during any particular session. (My personal scorecard had him dozing off a record-high of 11 times during one morning's worth of testimony by economist Frederick Warren-Boulton.)

Still, Jackson has displayed an amazing ability to rouse himself from seeming slumber and interject a piercing question, cutting through all the babble. People who think this judge is clueless about technology are not taking the measure of the man. He's listening in his own way.

As it went into the holiday recess, the government was clearly pleased with the way things went -- and for good reason.

The Justice Department entered into the record a body of evidence pointing to a pattern of anti-competitive behavior by Microsoft. In an antitrust case, the government needs only to provide a preponderance of evidence -- and that's what it's done.

Microsoft, which hasn't yet called its first witness, says it will be able to refute all the government's charges. But the software maker made its job that much more tougher by failing to properly prep its chief executive before he sat down for his deposition.

News stories quoting his colleagues say Bill Gates is perplexed and upset at the way his testimony has been received by the press.

I'm not sure what they're smoking in Redmond, but Gates flubbed his performance with a big fat "F." He comes across as evasive, petulant and otherwise not believable.

Microsoft's PR machine has subsequently charged the DOJ with a naked attempt to embarrass their chief. If that's the truth, the government hasn't had to work very hard to realize that ambition -- Gates did the job by himself.

John Dodge
In the opinion of PC Week's John Dodge, the DOJ scored several punches. What's more, whenever the government got fatigued and needed to score an easy point, it could always go to the videotape and play parts of the Gates video deposition.

That one had "Microsoft: guilty" all over it.

Meanwhile, Steve McGeady of Intel was a very good witness for the government, describing how Microsoft had sunk the chip maker's projects by making unspoken threats. The software maker's attorneys were utterly incapable of derailing him.

Microsoft's best day came when the AOL-Netscape merger was announced. This external event gave some credence to Microsoft's argument that it has to earn its stripes daily. Its prosperity and survival can be challenged by some sea change. And it faces many powerful enemies each day.

Mike Moeller
Mike Moeller of PC Week found Microsoft's best moment came outside the courtroom, helped along by the pace of current events.

The market is changing. The AOL/Netscape merger came at the best time and had nothing to do with Microsoft's courtroom efforts. In fact, in the courtroom, the Redmondites have done little or nothing.

The government made solid opening statements with damning e-mails all over the place -- and the best ones include copies sent to Gates or sent to him directly. The e-mail traffic leading up to the Netscape meeting was also hard to refute.

The DOJ did a good job with its witnesses, not so much in the redirect but in picking the right ones to testify.

Lisa Bowman
For ZDNet's Lisa Bowman, the trial assumed a surreal tone as it flitted from one comic moment to the next:

Surreal moment No.1:

After Microsoft attorney Steven Holley bombed during his cross-examination of Intel's crafty McGeady, company flak Mike Murray went before the cameras assembled on the steps of the courthouse steps to declare it was "another good day in court for Microsoft."

When a reporter asked Murray about the accuracy of a depiction in "Fortune" magazine quoting Andy Grove as admitting that Intel "caved" in to Microsoft, Murray -- ever the spin-meister -- said he wasn't familiar with the statement. Hmmmm ...

Surreal moment No. 2:

Holley tried to get McGeady to admit he had compared Microsoft to the devil, citing an e-mail in which McGeady wrote that the theme song for Windows 95 should have been "Sympathy for the Devil." McGeady scoffed at Holley's suggestion, saying it was simply a literary reference. He then went on to quote a verse of the song for the court's amusement.

Surreal moment No. 3:

Holley also accused McGeady of plagiarizing a story from a book recounting a shouting match between Gates and Grove during a dinner at Grove's house.

Holley, who then pulled out an e-mail Grove sent Gates following the dinner, pointed out that the message ends with a colon followed by a parenthesis mark. Isn't that what's known as "a smiley face?" Holley asked in a smug tone. McGeady replied that it was.

Well, does that usually indicate anger, the lawyer pressed.

"No," said McGeady.

Mary Jo Foley
Mary Jo Foley from Smart Reseller nominated the Gates tapes as the best piece of evidence in the government's arsenal.

All the PR spin in the world won't make the public forget that Gates wouldn't even deign to say "good morning" to DOJ lawyer David Boies.

And Gates' insistence that he didn't understand the words "the" and "and" didn't do MS much good either. So what if it had little to do with the DOJ's case -- the tapes hurt Microsoft. A lot.

The most compelling point made by Microsoft came with the exhibits provided around Java, showing that Sun knew from almost Day One that Microsoft had no intentions of complying with Sun's "standard."

That's pretty damning. Couple that with the judge's pointed questioning of James Gosling, asking why Microsoft needed to wait for Sun to catch up with a "better" Java made by Microsoft. The exchange made Microsoft look good for one all-too-brief moment.

But now comes the biggest question mark still hanging over the case: Microsoft's abrupt cessation of its cross-examination of DOJ witness, Dr. Edward Felten.

As soon as Felten raised the possibility that Microsoft may have tampered with Windows in order to make sure that a program he wrote would fail, all questions ceased.

Hmmm. Makes me wonder if he wasn't onto something. If so, it wouldn't be the first time that Microsoft has been accused of altering Windows to its own advantage.

As for the biggest annoyance, I found Microsoft to be slower than molasses in posting its exhibits and other DOJ-related documents to its Web site. The DOJ began posting exhibits, transcript excerpts and testimony even before the trial began. Who's the Internet kingpin here?

Anne Knowles
For PC Week's Anne Knowles, the most compelling point made by the government came when it demonstrated a consistent pattern of anti-competitive behavior. But she found that Microsoft also scored points during the arguments surrounding Java.

Microsoft's lawyers showed that Sun was aware of Microsoft's plans to alter Java before signing a licensing deal. They then convinced the judge that Sun resented Microsoft because it developed a better Java.

The most embarrassing moment for the government came when Microsoft introduced e-mail from Netscape's Jim Clark groveling to the software maker to get it to invest in Netscape. Microsoft's most embarrassing moment came when the government introduced "snippets" of videotaped deposition of a shifty, cantankerous Gates.

The most overplayed government "win" was hearsay testimony by Apple's Avie Tevanian on the alleged "knife the baby" comment made by a Microsoft exec to an Apple exec.

The most overplayed Microsoft "win" came with the company's claim that Windows and Internet Explorer are inseparable -- an argument the judge no longer cares about.


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