Microsoft on Trial: Judge lambasts MS video evidence

The presentation purportedly showed problems in a concept program government witnesses said would separate Microsoft's Internet Explorer browser from Windows 98. But by the time the day's session was up, the tape suggested something else, too: the problems, in fact, were in the presentation.

Judge Thomas Penfield Jackson blasted company lawyers for the inconsistencies: "How can I rely on it if you can't tell me if it is the same machine? This is very troubling," he told Microsoft Senior Vice President James Allchin. "I'd feel much better about it if you had made the test yourself."

Replied Allchin: "I did make the test."

Jackson shot back: "Yeah. But that is not what I am seeing here." Later, he added: "This certainly casts doubt on the reliability -- the entire reliability -- of the entire videotaped demonstration."

Princeton University's Dr. Edward Felten developed the government program to prove a point: that Microsoft's browser can, in fact, be separated from the rest of Windows. The point is important, since part of the Microsoft's defense rests on assertions that the browser and operating system are not two products but parts of an inseparable whole.

Among other things, Felten left in place an automatic feature for updating Windows over the World Wide Web as new features arise. That site, Felten testified, was the only site users could get to with his modified version of Windows 98.

In response, Microsoft ran a videotape Monday that suggested the service would eventually stop working once users connected to Windows Update. On tape, it seemed Microsoft was using one "virgin" computer on which only Windows 98 and the Felten program had been installed. "We have not made any other changes to this computer or Windows 98, except to run Dr. Felten's program," Microsoft executive Yusuf Mehdi assured viewers. The company abandoned that assertion by the end of the day.

In rapid succession, government lead attorney David Boies uncovered five separate instances that showed Microsoft used at least two, and possibly three or more machines to carry out its demonstration.

Early in the tape, the videotaped PC displayed a line of computer icons running down the left side of the machine. But within minutes, two additional program icons appeared on screen. The PC suddenly looked a bit less virgin. "Is the second one Microsoft Outlook?" Boies asked Allchin.

"Possibly," Allchin replied; it was hard to tell on the large courtroom screen.

On screen, Mehdi walked observers through a process that showed that even though his computer had been "Feltenized," a control panel for IE remained inside the computer. That was confusing to users, he complained.

Yet when Mehdi returned to the desktop, only one of the two new icons were visible. "That indicates something has happened to the machine in the last two minutes," Boies observed.

"Yes," Allchin said. "I'd like to know what happened to that other icon, too."

Boies ran the tape 15 seconds more. On Monday, the tape had seemed to show that Windows Update ran slowly with the Felten program in place. Yet in this replay -- at least a half-minute before Mehdi's presentation sought to show how slowly the Update ran -- Windows Update appeared quickly on screen. The second icon was back, too.

Jackson launched his lecture about the reliability of the demonstration. "I'd be willing to bring in a machine to the court," Allchin told Jackson.

"Ask your lawyer," Jackson said.

Boies was almost finished. He turned to one last snippet of video. It was the same one he had used to skewer Allchin on Tuesday. Mehdi pulled up the Windows Update site. The response was slow on the "Feltenized" machine. Mehdi pushed his point home "It is taking a very long time -- unusually long ... This is a result of the performance degradation that has occurred because of running the Felten program."

A Feltenized machine should have the title "Windows 98" at the top of the browser Window. An unmodified machine should say "Internet Explorer."

The title at the top of the browser read: "Internet Explorer."

"When the string that indicated it was a Feltenized machine was there, it popped right up," Boies said. A few seconds later he turned to Jackson.

"No more questions," he said.

DOJ officials will be present when the demonstration is re-shot Wednesday night.