Conclusion: DoJ spin bowls MS video clean

Most spectacular government victory since Kuwait, says observer

MS on Trial The DoJ team is learning a few tricks from Microsoft. Having had its own witnesses intimidated by senior Microsoft staff sitting in the front row of the courtroom and known to its witnesses, who better to invite to sit in the front row last week than Edward Felten and his boys, who had detected the sleight of hand in the video. Michael Lacovara, who deserves the prize for being Microsoft's most boring cross-examiner, commented that "David [Boies] got a big bang on a very trivial issue." Is he suggesting that "trivial" lies are acceptable? The hapless Mark Murray was seen to rush from the courtroom punching buttons on his mobile phone as Boies' questions hit the bullseye. Murray's biggest mistake was when he said, standing alongside Neukom, that "The first tape was showing, was using computers in a studio to illustrate the points that we had discovered in the laboratory." The use of the word "illustrate" gave the game away: the video was a dishonest demonstration intended to deceive the court. He also rather stupidly said that "One of the great things about the software industry is that if there are bugs, you can go back and fix them." The corollary seemed to be "we can rewrite history". Tod Nielsen of Microsoft said of that "Each time we connected we got a different performance rate, a different sized pipe. So it would have been unfair to either side to compare, you know, one machine at one rate with another machine at another rate." The earlier tests were probably too fast for Microsoft to demonstrate the slow performance it so desperately wanted. Bill Neukom, Microsoft's head lawyer who has been completely silent in the courtroom (and sometimes absent), had to admit "We didn't make a very good tape" and that Microsoft would make it "unambiguously clear that the Felten program does not do what its supposed to do." He was wrong. Rich Gray, a San Jose-based attorney following the trial, suggested that "The last time the United States government inflicted this much punishment on a foe, the evening news was filled with aerial photography of bombed-out vehicles and burning Iraqi tanks on the highway leading out of Kuwait City." Boies was rather restrained in his comments outside the courtroom: "Microsoft says this is some kind of mistake. I'm not going to stand here and say something nefarious happened in Redmond. All we know is that the tape they put in evidence is not reliable." The most telling point, the one that is likely to influence Judge Jackson, was verbalised by Boies: "This is not public relations, this is not sales ... We know that [the test] was not as portrayed, and that's important, because what a court needs is to have confidence that the evidence is accurate." ® Complete Register trial coverage

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