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DoJ fights bid to strike Apple evidence

Argues against Microsoft claim that Tevanian evidence is hearsay

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The DoJ has just filed its Opposition to Microsoft's 10 November Motion to strike the evidence of Apple VP Avie Tevanian. It argues that Tevanian has direct personal knowledge of the QuickTime/Windows incompatibilities and their nature, and was personally involved in efforts to fix the problems. Microsoft had contended that Tevanian had insufficient knowledge to support his assertion that Microsoft had sabotaged QuickTime. Microsoft had produced in court a document previously unseen by Tevanian and asked him to interpret it. But it turned out this was a trap. The document was downloaded from Netscape's Web site, and is complex and incomplete, consisting of 5 out of 11 pages of chapter 2 of some unspecified document about developing plug-ins. The DoJ says that Microsoft tried to ambush Tevanian by asking for an instant assessment of the document. Tevanian was not prepared to answer questions on the document, so Microsoft claimed that he "insulated himself from meaningful cross-examination". The problems Apple experienced resulted in "incorrect and misleading error messages" when QuickTime was invoked. The messages suggested users reconfigure their systems because of a supposed error in their media file associations, when there was in fact no such error. Tevanian felt that such messages were unlikely to have appeared accidentally, and therefore inferred that Microsoft intended there to be a problem for Apple. The deviousness is that Microsoft had two explanations for Apple's problems. One was that Apple had not followed Netscape's plug-in instructions (false), and the other was that an ActiveX control was absent. It is almost certainly significant that Microsoft's response to Apple was delayed by "a newly developed legal complication" in August 1998. A 21 July 1998 email from Schaaff to Microsoft sets out the problem and notes that Microsoft's software uses "information from the Windows Registry to determine what MIME types get routed to which places.. as you know, the Windows registry is not publicly documented..." which results in "third party developers, like Apple, getting hurt." The DoJ has not made an issue of undocumented calls in Microsoft software, which is an oversight since no remedy against Microsoft would be adequate without forced disclosure of such information. The DoJ disclosed emails between Apple and Microsoft in its opposition. Tim Schaaff, Apple's lead on QuickTime (who had been "subjected to a vigorous and lengthy deposition by Microsoft") pointed out to Microsoft in email that MIDI and MPEG formats were not Microsoft formats, as Microsoft had been claiming, but industry standards. He also noted that although IE preferred ActiveX controls, "it didn't use to" and Schaaff "would at least have expected [Microsoft] to maintain good compatibility with the existing, widely adopted standards, such as the Netscape Plug-in API. Besides, ActiveX is only supported on Windows and only with Internet Explorer. That's a bit narrow, don't you think? Microsoft repeatedly pressured Apple to abandon QuickTime for Windows, and Microsoft's Don Bradford relayed a message that Gates "wanted Apple to abandon the playback segment of its multimedia business on Windows". Meanwhile QuickTime continued to work with Navigator. A Microsoft internal document filed with the Opposition by the DoJ shows that Microsoft corrected problems between MOV and QuickTime, but admitted that Microsoft "does not really want to enable [Apple] to do this to the file types that [Microsoft] owns". Another document entitled "QuickTime/DirectX convergence proposal" evidently was the basis for a meeting on 15 June 1998 between Tevanian (with Steve Jobs present) and Microsoft at which Microsoft proposed that Apple should abandon of QuickTime for Windows. It notes that Microsoft would announce "Adoption of MOV as the Windows file format" and "Adoption of [QuickTime] Authoring services". Eric Engstrom, the Microsoft executive in charge of Microsoft's multimedia work, is scheduled to give evidence for Microsoft, so it will be interesting to see what he has to say when he is cross-examined. ® Complete Register trial coverage

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