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Trial unnecessary, and we don't have to be polite – Microsoft lawyer

It was Sound-bite City as John Warden opened for Microsoft's defence yesterday

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The thrust of Microsoft's opening two-hour statement by its leading external lawyer, John Warden of Sullivan & Cromwell, was that it had done no wrong and was not obliged by law to be soft on competitors, since the antitrust laws are not a "code of civility in business". Microsoft "firmly believes the trial to be unnecessary", Warden claimed. He was on thinner ground when he said that there was nothing wrong in "urging your partner not to ally with your competitor", since Microsoft is accused of accompanying such "urging" with dire threats as to what Microsoft would do to the "ally" if it did not give into Microsoft's demands. The case documentation shows many examples, such as threatening to stop supplying Windows 95 to Compaq if Compaq did not agree to include Internet Explorer, and not allowing AOL to have its icon on Microsoft's Internet access Web page if it did not use IE exclusively, despite preferring Netscape for technical reasons (AOL has subsequently denied this). Warden struck an old-fashioned pose by failing to use a computer-driven screen, as had David Boies in opening for the DoJ. "There are a few of us who still use fountain pens," he said as he used an overhead projector. Interestingly, Cromwell & Sullivan's law practice also uses WordPerfect, as do many lawyers, and is far down the list of high technology legal practices in a recent survey. "The effort to demonize Bill Gates... is emblematic" of the DoJ's approach, Warden suggested. The cliche-du-jour was that the DoJ opening remarks were the old chestnut "long on rhetoric, short on substance". Warden turned the decision by Microsoft not to charge for IE into a benefit to consumers, rather than a competitive loss-leader for which the cost would be recovered elsewhere. Warden did admit that Microsoft had forced Netscape to withdraw the fee, which may not help the case later as it is evidence of predation and monopoly leverage. So far as Microsoft's contracts with ISPs were concerned, Warden claimed they were "not only completely unobjectionable but pro-competitive". It is hard to see how Microsoft can make progress with this argument here, since reducing competition is hardly pro-competitive. Warden claimed it was a different issue as to whether Microsoft required PC makers to keep the IE icon on the screen. The DoJ says they are exclusionary and therefore illegal. Warden was always seeking to deliver one-liners for the media, but it is unlikely that Judge Jackson will be moved by them: "Microsoft doesn't deny the consumer choice, they are the consumer choice." Of course, there is no hint at what the "choice" might be in the high street when it comes to operating systems, for example, and why that choice does not exist, and why the price of Windows is an increasing proportion of the price of a new PC, or why Microsoft's gross profit is so high. Microsoft was not a monopolist, Warden maintained, because there were few barriers for those who wanted to enter the business. Of course, entering may be easy, but staying alive is another matter. ® Complete Register trial coverage Click for more stories

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