Java guru beats-off Microsoft attorney with ease

Gosling's cross-examination seems to have been a whitewash for Microsoft

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Sun's Dr James Gosling proved to be a highly credible witness last week, and outclassed Tom Burt, the Microsoft associate general counsel who cross-examined him. Burt didn't cross-examine Gosling on his written testimony, but engaged in a debate with the inventor of Java -- and lost. Only once did Burt question Gosling on his written testimony in nearly two days, and that was a request for an elaboration rather than a challenge to what Gosling had said. While Gosling was searching for his testimony at the bottom of a pile of documents, Judge Jackson pointedly remarked that "I have his testimony. It has been a long time since we have averted to it." It seemed clear that Burt had blown it by ignoring the testimony and trying to discuss other issues raised in marginally interesting emails, and in magazine articles. The only other reference that Burt made to the testimony was to remind Gosling that he had said in a footnote that he would not broadly address issues raised in Sun versus Microsoft. At one point, after Burt crowed at the performance of Microsoft's Java virtual machine, Gosling said: "Where we became significantly concerned about Microsoft was not in the fact that they were outperforming us, but in the process of re-engineering their VM, they were deviating from the specifications, which, you know, the court in San Jose has now found twice in our favour." Burt couldn't move on fast enough, and away from the testimony. At least the judge will accept Gosling's testimony -- and the signs in court were that he had read it. In it, Gosling set out the background to Java in a clear and concise manner, and without rancour. With no challenge from Burt about the reasons for Java development, and with the evidence that Microsoft was losing out in its case with Sun in San Jose, Microsoft's actions with respect to Java are likely to be viewed by the judge as illegal and anticompetitive. Some data in Gosling's testimony are worth mentioning: more than a thousand copies of the Java source code have been licensed for reference and evaluation, and more than a hundred corporations have executed commercial sourcecode licenses for the Java Application Environment. Gosling's opinion that "there are no significant efficiencies to be gained by the inclusion by Microsoft of the Web browser in the operating system that could not also be achieved if computer manufacturers or end users were permitted to install and remove web browsers themselves" is likely to stand as an expert view that Microsoft integrated IE in Windows 98 for anticompetitive reasons. Gosling also pointed out that Microsoft did the same for the JVM - made Microsoft's non-standard version mandatory and non-removable in Windows 98. The broad thrust of Gosling's testimony was to show that far from Microsoft not being allowed to innovate, Microsoft has been doing everything in its power to stop the most innovative technology of the decade by using its market power to foreclose distribution channels. Burt clearly lacks experience in cross-examination (or perhaps has not watched enough afternoon television re-runs of Perry Mason). His attempt at ring-fencing Java failed because of his ignorance in the face of Java's creator. A good example was when Burt attempted to suggest that cross-platform programs only support the lowest common denominator functionality. He shouldn't have brought this up, because it gave Gosling the chance to explain simply and effectively that Windows did not have, for example, anti-aliasing, so that circles drawn in Windows have jagged lines, whereas Java's anti-aliasing makes the lines smooth. Burt's desire to show that Java was slow was so strong that he took examples from the earliest versions of Java. Judge Jackson caught on to this immediately, so that when Burt produced an undated extract from a book, he asked for the date. Burt then went on to what he called "some more contemporary articles in the computer industry press" and came up with a June 1997 item - an article by Jesse Beerst of Ziff-Davis. The judge noted that he was interested in the ad in the left margin, but didn't think it was for Java. Burt forgot to ask Gosling a question, and moved on to another Microsoft-sympathetic article in PC Magazine US from April 1998, but that turned out to be a mistake too. Burt started reading extracts that suited his case, without asking questions, so David Boies for the DoJ objected. The judge upheld the objection, and Gosling proceeded to demolish Burt's inadequate probes. Burt shouldn't have brought up the fact that there were no fully-compliant version 1.1 JVMs for Windows 3.1, because it gave Gosling the chance to mention that "Windows 3.1 has some architectural problems... even Microsoft failed to do a decent implementation... Many people impaled themselves on that particular sword." Ouch. The documents and video-taped testimony that Burt chose for his non-testimony-based challenge of Gosling presented no challenge at all. They did reveal a one-liner from Sun CEO Scott McNealy in one of the exhibits. After McNealy had seen an early demo of Java from Gosling, he wrote an email that said: "Charge: kill HP, IBM, Microsoft and Apple all at once!" The court went into closed session twice to consider Sun evidence that was accepted under seal. It seemed that Microsoft must have enjoyed its fishing expedition when it served subpoenas on Sun to obtain possible evidence. In some very pointed instructions at the end of the session, the judge reminded Burt that "as in-house counsel, you and Mr. Neukom are both precluded by your ethical obligations from imparting the information which has been placed under seal... [this applies] through the corporate hierarchy... remind Mr. Neukom of that obligation". Whether key people at Microsoft already knew the content was not disclosed. Gosling's testimony during cross-examination was meticulously presented, at an appropriate level for the judge, though without condescension as was the case with Burt. At times, the judge questioned Gosling directly, in a way that indicated that he was interested and wanted both to understand the subject better and to get some information that Burt was not bringing out. Burt tried to introduce some testimony from the Sun-Microsoft case, but in a flash, Boies was up, objecting that Microsoft had applied successfully to have a deposition from the Caldera versus Microsoft case withheld, at least for the time being. Burt hastily withdrew his request to include testimony from Sun VP Bill Joy. Burt fearlessly asked Gosling if, by "the evil empire" he meant Microsoft. Gosling confirmed it. Burt then went on to explore the Sun slogan "write once, run anywhere", but seemed unable to appreciate that it wasn't just Microsoft that indulged in a bit of hype - and besides, the slogan was becoming increasingly true over time, although Burt favoured ancient examples. Burt chose the wrong person with whom to pick a fight with on this particular issue, and was stopped by the judge: "You're arguing with the witness now. Put your next question." Sometimes Burt had to curtail Gosling's evidence, because it became rather damaging for Microsoft. In talking about binary compatibility, Gosling went on to say that "there are certainly, for instance, Windows 3.1 programs that do not work on Windows 95... (Burt's interruption was ignored by Gosling) despite extensive testing and diligence on Microsoft's part." Burt again tried to use documents that did not have the original date on them, but didn't get away with it. By this stage, Gosling had the initiative, and Burt's feeder questions tended to underline Gosling's evidence, rather than challenge it. Burt made little headway in trying to suggest that Corel's effort with a Java version of its office suite (using JDK 1.1) proved that Java was a failure. Gosling showed that the problem was in part that it was written before the JDK performance improvements were introduced. So far as the Netscape Java browser was concerned, Gosling thought it too big an engineering project for Netscape after Microsoft had made IE free and so cut off Netscape's revenue possibility. Burt began to repeat some arguments he had made earlier, and found himself being warned by the judge against "cumulative testimony". Again Microsoft tried to establish that a competitor had attempted a market carve-up against Microsoft. Burt suggested that Sun had agreed with Netscape that it would not to enter the desktop browser market with HotJava. Microsoft's evidence was not very convincing, but even if it had been, it was Microsoft that was on trial, not Sun, and excuses that "everybody does it" were an implicit admission by Microsoft of anticompetitive acts. The efforts of Burt to elaborate on a supposed Sun-Netscape agreement came to naught when Gosling said that Sun did not have a commercial browser product and therefore was not competing with anybody in that sector. At one point, Burt introduced an exhibit, which prompted the judge to tell him: "All I'm concerned with is the fact this is from somebody whom this witness does not know to somebody this witness doesn't know about matters as to which he has no knowledge, and I'm curious as to what use the document has other than to get evidence." Gosling's evidence will be resumed after evidence from Professor David Farber on Tuesday. The court will not be in session on Monday. ® Complete Register trial coverage

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