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MS attorney caught plying witness with Linux numbers

Judge tells them to cut it out - Chinese walls, we've heard of them...

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Microsoft's first witness for the defence collected a reprimand from the judge for talking out of class yesterday. Richard Schmalensee had suddenly come up with an estimate that there are something like 10 million Linux servers out there, having failed to mention this either in his written testimony or in earlier discussion. When puzzled DoJ attorney David Boies asked him where the number had come from, in that case, Schmalensee replied that he'd been passed it by Microsoft attorney David Heiner during a court recess. This is apparently how expensive academic economists conduct their research. But not, apparently, how Judge Thomas Penfield Jackson expects his courtroom to run. He issued an immediate reprimand instructing Microsoft attorneys not to discuss the case with witnesses. Schmalensee also ran into trouble over his definition of Microsoft's market, as it appears he has defined it one way in his evidence for one of the other cases, Microsoft versus Bristol. In the DoJ case it clearly suits Microsoft to try to establish the boundaries of its market as widely as possible, thus increasing the scope of possible competition and reducing the impression that Microsoft has a monopoly. In Bristol, Schmalensee argued that Microsoft's market could be narrowly defined. This difference in definition did however attract the judge's attention, and his sudden interest in other cases could be unhelpful for Microsoft. There's certainly some stuff in both the Caldera and Sun matters which could make unpleasant contributions to the DoJ trial. As regards the meat of the first cross examination sessions themselves, Schmalensee seems to have clutched onto Linux determinedly, but to have been eventually forced to concede that Microsoft had not had a serious OS competitor in 12 years. But, he said hopefully, in a year or two, Linux and/or BeOS really could be rivals. Honest. ® Complete Register trial coverage

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