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Court steps spin increases as Microsoft demands dismissal

DoJ running scared, and expert is a know-nothing, apparently...

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Microsoft will introduce a Motion to dismiss the case after the DoJ has finished presenting evidence from its twelve witnesses. This is a common legal procedure, but usually has more in common with fisticuffs than legal merit. It would perhaps have been better if Microsoft had not pre-announced its intention before all the evidence had been heard, but such moves are all part of the running PR campaign outside the courtroom. David Boies, the DoJ's special trial counsel, said that this is the sixth time that "Microsoft has proclaimed the government's case dead". Microsoft is of course trying to suggest that the AOL-Netscape deal shows just how volatile the industry is, and is cheeky enough to claim that the case should be dismissed as a result. Perhaps Microsoft should re-read the Complaint that started the case: nothing has changed so far as Microsoft's business practices are concerned. A cooler interpretation is that Microsoft's actions made Netscape vulnerable to the deal that will cost it its independence. Boies said: "What you see here is an exit strategy for Netscape." John Warden of Sullivan and Cromwell, Microsoft's main outside lawyers, claimed that the government "has tried to develop a second case that Microsoft is attempting somehow to gain a 'chokehold' on the Internet". He continued in pugilistic vein: "[The DoJ] is running scared; they're running hard against Microsoft." Warden has even taken to making courthouse steps statements with Microsoft counsel Bill Neukom and company spokesmen - something that he claimed he had not done just a few days ago in a barb aimed at Boies. Dan Gillmor of the San Jose Mercury News characterised the situation of Microsoft spokesman Mark Murray as being like that of a tobacco company spokesman. Microsoft is using all the propaganda tricks in the book: repetition of three claims: that DoJ witnesses are incompetent (and/or helping Microsoft with its case); that innovation will decline if the government gets to control the software industry; and that Microsoft is a tough but legally correct competitor in a rough game. Microsoft press statements are now openly attacking the current witness, economist Frederick Warren-Boulton, who has certainly made many silly mistakes. The DoJ is doing little to balance the rhetoric, but Boies has a few one-liners ("Mr Gates knows where the courthouse is" - a reference to Gates' taunt that the DoJ had not chosen to call him as a witness, and Boies' suggestion that Microsoft calls Gates). But the DoJ's ace is undoubtedly the Gates' videotaped testimony, which is changing Gates' image in the USA: Americans still love his money, but don't really want to be like the pathetic character that they have seen see being deposed on their television screens. Wall Street however has a different view: Microsoft shares are up around their highest ever value, which shows how nutty the Street is, since the likely practical result of the AOL-Netscape-Sun deal is to ensure that MSN will not dominate the Internet. However, irrational behaviour is a two-way street. It took a very long time before IBM shareholders, disappointed at the beginning of the 1990s when IBM shares fell to around $40, decided to include IBM again in their portfolios. Past may yet be prelude. ® Complete Register trial coverage

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