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Gates squirms on screen as memory problems re-emerge

Are those who don't remember past emails condemned to resend them?

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Apple VP Avie Tevanian's cross-examination yesterday may well mark the day when Microsoft began to fall seriously behind, and the reason is quite simply that Gates' videotaped deposition has harmed Microsoft's defence greatly. Gates' credibility as a witness is minimal. He is unresponsive, rarely answering the question directly, or gives a response that is not an answer to the question. He often pauses for an inordinate time before giving a non-committal response, and frequently claims not to remember what happened, which does not accord with other evidence about his memory, which is generally regarded as exceptional. Presumably he has been advised to be as non-committal as possible, and claim a lapse of memory. Gates did not act like a CEO and chairman of the largest computer company in the world. He seemed incompetent, and on the basis of his responses, disengaged from the business of the company. Gates looked very uncomfortable, exhibiting several times a childlike petulance at finding himself being relentlessly quizzed on matters that could not easily be explained away. He exhibited his full range of mannerisms, including rocking on his chair. It was very interesting that Gates claimed that there was a company policy that prohibited "dividing markets", and that contravening the policy was a reason for disciplinary action. It sounds as though some staff members are likely to be thrashed, although whether they will be able to claim as a defence that they were 'only obeying orders' is not yet certain. For his part, Gates claimed under oath not to be aware that Microsoft made a market dividing proposal to Apple. Some of the questioning at the three days of depositions was by Steve Houck, attorney for the 20 states and DC. Gates frequently resorted to denying any recollection of sending or receiving key emails, or having conversation with people. Gates might just as well have taken the fifth (amendment) and refused to answer on the ground that he might incriminate himself. It is hard to relate the questioning of Gates to the documents he is being shown (most of which have not yet been unsealed -- ie. placed in the public domain), although quotations from some were included in the DoJ's Complaint and Memorandum in May that started this phase of the investigation. Microsoft internal emails produced to him frequently contradicted his deposition. The taped extracts did little more than confirm much that was hitherto suspected, but Gates' behaviour, body language, defiant attitude and humbug said a great deal. The revelations were in emails that were quoted. An example of the dialogue suffices to demonstrate the nature of his responses. Gates emailed VP Paul Maritz and others, saying: "I want to get as much mileage as possible out of our browser and Java relationship here." In other words, a real advantage against Sun and Netscape. "Do we have a clear plan on what we want Apple to do to undermine Sun?" David Boies, Doj trial attorney: Did you send this email, Mr Gates, on or about August 8, 1997? Gates: I don't remember sending it. Boies: Do you have any doubt that you sent it? Gates: No. It appears to be an email I sent. Boies: What do you mean when you asked Mr Maritz whether or not, "we have a clear plan on what we want Apple to do to undermine Sun?" Gates: I don't remember. At Microsoft's request, the videotape included a section where Gates said that resolving the patent dispute in which Apple had sued Microsoft was a key objective in 1996 and 1997. Microsoft trial lawyer John Warden's reason for wanting this passage inserted was to distract from an email Gates wrote on 23 June 1996 wherein he said he had "two key goals in investing in the Apple relationship" which were to maintain the market share of Microsoft Office in the Mac market, and to get Apple to "embrace Internet Explorer in some way". Gates said he was unable to recall indicating, as John Ludwig of Microsoft put it, that his "top priority is for us to get the browser in the October OS release from Apple. We should do whatever it takes to make this happen". The documentation contains the evidence that Microsoft linked an investment of $150 million in Apple to Apple agreeing to take IE, but Gates denied this. Microsoft documents show that in fact an additional $100 million was paid to Apple to settle the so-called patent dispute (which translates as Microsoft having been caught with a sizeable amount of Apple's QuickTime code). A particularly revealing email from Ben Waldman of Microsoft (he's the guy in charge of Mac application development) to Gates directly contradicts Gates' assertion that there was only an internal debate at Microsoft as to whether Microsoft should update the Mac version of Microsoft Office, which Apple regarded as very important for its survival at the time. Waldman wrote: "The threat to cancel Mac Office 97 is certainly the strongest bargaining point that we have, as doing so will do a great deal of harm to Apple immediately. I also believe that Apple is taking this threat pretty seriously." By threatening to withdraw Mac Office 97, Apple's agreement to prefer IE to Navigator and settle the dispute over the QuickTime code was easily obtained. It was just another example of monopoly power being used in a very focussed way. ® Complete Register trial coverage Click for more stories Click for story index

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