DoJ expert flattened by Microsoft, largely

Exit one of the US' foremost antitrust experts, pursued by bear...

Last week we left the DoJ witness, consultant economist Dr Frederick R Warren-Boulton, being set up by Michael Lacovara, a counsel for Microsoft. This week, W-B spent all of Monday and Tuesday in the box, and completed five days as Lacovara's victim. So far, this has been Microsoft's most successful cross-examination, because W-B has clearly exceeded the evidence in a number of quite important places in his written testimony, and Lacovara has ruthlessly exposed this. Lacovara's method has been to tempt W-B into giving opinions that turn out to be wrong or ill-informed. Lacovara then puts the facts as Microsoft would like them to be seen into a question and feeds it back to W-B, who caves in if the odds against sustaining his earlier responses are overwhelming. Sometimes W-B wins through, but he is being carefully kept away from economic issues for the main part. For the main part, W-B's 'cross' has been pretty boring, but from time to time gems emerge. Lacovara's questions often contained the arrogance for which Microsoft is rather well-known. The following non-random extract from the testimony shows this, and illustrates W-B's vacillation and lack of industry knowledge: Lacovara: Microsoft has agreed to permit browser choice for all computers as to which Gateway has made that request -- isn't that your understanding? W-B: Oh, I don't know if that's all the computers -- I'm just saying that it's a subset of Gateway's computers. Lacovara: You have no basis to testify that Gateway was ever denied the right to implement browser choice by Microsoft for any subset of its products; isn't that right? W-B: That's correct. I don't -- you know, I don't know what the record is on that. Lacovara: And under "browser choice", a user is given the option to select either Netscape's or Microsoft's Web browsing software; isn't that correct? W-B: I believe that's correct. Lacovara: And that choice is given in the initial boot sequence; isn't that also correct? W-B: That's my recollection, although -- you know, I wouldn't want to swear to it in this context. Lacovara: And if the user chooses Netscape under Gateway and Mr von Holle's browser choice program, their machine will be configured so that Netscape software becomes their browsing software, Netscape becomes their default email client, and a Netscape partner becomes their ISP connection; isn't that right, sir? W-B: I'm not certain, but I wouldn't -- I can't tell you there's anything wrong with what you just said. It's my understanding that Gateway has such an arrangement, yes. Lacovara: And do you believe having affirmatively selected Netscape software, a user is then going to forget and click on the wrong icon, even if the IE icon remains on the desktop? W-B: I'm sorry. For somebody who has already selected or chosen Netscape and has ordered a Netscape-configured browser from Gateway? Lacovara: Yes, sir. W-B: That he's going to do what? Lacovara: Then get confused and accidentally click on IE some other time? W-B: I'm not sure as to the extent to which all means of support or access to IE are removed in Gateway. It's my -- I find it difficult to believe that all means of access to Gateway -- to IE have been removed by Gateway, since I'm not sure if that's technically possible. And so it went on. W-B put both feet in when he was asked if he knew how many referrals or subscriptions to AOL were generated from the placement of the AOL icon on the online services folder. Lacovara: And don't give the number. If you could just answer 'yes' or 'no' please. W-B: Well, if you divide 1,700,000... I'm sorry. The judge wanted to know what all this was about, so Lacovara told him: the testimony being discussed had been taken in camera, at AOL's request, and should not have been revealed in open court. So, gentle reader, forget you ever read that, please, and don't tell anyone. Ironically, CompuServe did not find it did very well at all from its deal with Microsoft for some exposure (and nor did Ziff-Davis find being on the Active Desktop helped, it was subsequently revealed in testimony). A Microsoft exhibit (DX1722) consists of AOL email dated 6 February 1996 in which it is stated that AOL would be "distributing 175 million disks this year (and presumably more next year)" giving substance to the description of this activity being 'carpet bombing'. The email also notes that AOL gained "double the number of members since August [1995] compared with MSN". Snippets were read from Brad Silverberg's testimony, which has not yet been made public. In a section detailing a discussion between negotiator Evslin of AT&T and Silverberg, Evslin said he wanted the AT&T icon "in the Windows box". Silverberg: But what are you going to do for me? Evslin: I am not going to do shit for you. I am king of the world, you know. You're going to do this for me because I'm AT&T. Silverberg: And so I let him know that probably wasn't going to fly. So I took an extreme position in the other direction which was... [at this point, W-B started a quotation from Silverberg in paragraph 102 of his written testimony, dodging the expletive which Lacovara had mischievously read into the record]. Throughout the remainder of W-B's examination, Judge Jackson was remarkably tolerant about the length of the cross. After he allowed the admission of an exhibit, both counsels thanked him. Said Jackson sardonically: "Don't thank me for a ruling, either of you. It's my job." The particular exhibit was a screen shot of Windows 98 showing that when the Start button was pushed, Netscape Navigator and Netscape SmartUpdate appeared -- and no IE. Don't rush out to buy one, though -- it was just a demo fudged by Joachim Kempin's boys in Redmond. It was agreed that Kempin could be asked about the provenance of this trick photography when he testifies. It was also confirmed that when Packard Bell's Windows 95 PCs would not respond to the right-hand mouse button, P-B had been trying to make Windows 95 boot into a proprietary OEM shell. The suspicion, not voiced in court, must be that this may have been a little trap arranged by Microsoft. Lacovara tried to make much of the need for OEMs to obey Microsoft on these matters, but since the OEM has the support responsibility, Microsoft had no real reason to complain about what it claims were many support calls (for which it could charge). W-B made the valid point that Microsoft made mistakes too, and that these affected all OEMs. It was his best point of the day. Although the judge had all but directed Lacovara to finish his cross on Monday, he decided to allow a request for a further hour the next day: "I don't want to foreclose you from any valid avenue of cross-examination," Jackson said, no doubt thinking of the court of appeals upstairs. Indeed, the judge now seems to be resigned to the trial stretching on, and appears to be showing signs of taking W-B's testimony with a pinch of salt. But the next day, Lacovara exceeded his time, and Judge Jackson ordered him to finish his cross-examination of attorney Richard Schwartz's redirect: "You'll conclude this by 5pm. This examination has got to be brought to an end. Evidently Microsoft had not expected Lacovara to go on for so long, because Microsoft released its "partial response" to James Gosling's written testimony before the testimony had been released by the court, making the references to it rather silly. Gosling was in court, but not called. Excerpts from the Gates videotaped testimony on Java are expected to be shown shortly. ® Complete Register trial coverage

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