Boies weaving a tangled tapestry?

WASHINGTON -- Computer folks do have incredible senses of humor after all.

All throughout its antitrust trial, Microsoft has dismissed Netscape's complaint about giving away browsing technology by making it part of Windows as nothing more than sour grapes.

But lo and behold, evidence arose Wednesday that the very same Microsoft was complaining to Intel about its plans to subsidize a free piece of software from another area of the chip maker's business.

Now I don't know whether Microsoft Group VP Paul Maritz saw anything funny about this or any of the other exchanges he had with David Boies on this day.

Maritz had his hands full, as the exchanges between the two men -- which started off as a battle of wits -- turned into a war of attrition, with the government litigator pounding away until he got the answers he wanted.

I thought Maritz did reasonably well during his time on the stand. He didn't allow himself to get rushed into blurting out anything incredibly idiotic or incriminating.

And he emerged as a reasonable - albeit understandably partisan -- defender of his company and its business practices.

The problem is that Boies, who got off to a slow start earlier in the week, was at the top of his game as he finished off his cross-examination of Microsoft's group vice president.

Over the course of three days, Boies sought to demonstrate a pattern of behavior in which Microsoft sought to eliminate nascent competitive threats to Windows.

Larger ambition
And he battered away until Maritz owned up to several admissions -- none of which by itself points to any illegality, but collectively, they suggest a larger ambition.

1. Microsoft decided to forgo an opportunity to charge for portions of its Web browser in a bid to take market share from rival Netscape.

2. Pressure convinced Intel to drop work on multimedia software that was not compatible with Windows 95.

3. Financial and other incentives were offered to RealNetworks in hopes of getting that company out of the streaming media business.

The government is hoping that Judge Thomas Penfield Jackson is alert enough to connect the dots.

Earlier in the trial, the Justice Department introduced evidence suggesting that Microsoft offered to divide up the Internet browser market by presenting Netscape with a menu of inducements and threats.

This isn't the O.J. Simpson trial, and Boies won't be running around the court waving a bloody dagger. Instead, he's presenting a narrative in which he's seeking to demonstrate to the court that Microsoft's continued behavior constitutes a violation of antitrust law.

It's making the Microsoft side slightly nuts. In corridor conversations and outside the courthouse, during the afternoon spin sessions, company executives gamely repeat that Boies is just working a smoke-and-mirrors routine for the media's benefit.

There is no damning document, there is no damning testimony and surely, there is no damning violation of the law.

In short, they ask, where's the beef?

Here's the beef
Boies, who often hangs around to listen to the Microsoft spin sessions, says he's already put more than enough evidence on the record to suggest a pattern of behavior for the judge to review.

And so it was Wednesday, as he flitted around Microsoft's dealings with both Intel and Real Networks.

Microsoft hoped upstart RealNetworks would exit the multimedia-streaming software market. Microsoft was worried that the company's software might ultimately create a platform that would later challenge Windows.

Microsoft, which ultimately took an equity stake in Real, did nothing untoward, said Maritz. In fact, he noted, Microsoft was not the one to initiate the first contacts.

But Boies wanted to drive home a bigger point.

Bigger picture
"Did [RealNetworks] tell you they would get out of the base media streaming platform?'' Boies asked Maritz.

Maritz said RealNetworks "told us that was a possibility."

When Microsoft made the deal, did Maritz believe RealNetworks would exit the streaming software business (and more importantly, go into other areas that didn't pose threats to Microsoft?), he asked.

Yes, Maritz said.

Now hit the reverse button to May and August of 1995, when Microsoft and Intel met to resolve their dispute over the chip maker's NSP system software project.

Helping Intel?
Maritz said he wanted underscore to Intel the extent of Microsoft's existing development in the Internet. Perhaps so, but Boies spotted a hole.

"Aside from your natural human instinct to try to help Intel, did you have a Microsoft interest to try to stop Intel?'' asked Boies.

"Yes,'' Maritz said. "We didn't want software that was incompatible with Windows 95.''

In isolation, neither of these episodes makes for more than a passing headline, but Boies is weaving them together with prior testimony by executives from Apple and Netscape.

His plan to form a larger tapestry is coming into full view.