DoJ's ‘Punch’ beats MS' ‘Judy’

The Felten deposition

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MS on Trial Computer scientist Professor Edward Felten from Princeton was recently deposed prior to his appearance as a rebuttal witness for the DoJ in the Microsoft trial. In many ways the Steve and Steve Show -- Steve Holtzman for the DoJ and Steve Holley of Sullivan & Cromwell for Microsoft -- was like a Punch and Judy show, and there was no doubt that Holtzman was Mr Punch, and Holley an unsuccessful Judy. Judy had a lot of supporters -- Microsoft in-house lawyer David Heiner as his minder, another S&C lawyer as his bagman, and David D'Souza of Microsoft as a make-weight. Mr Punch faced Judy alone. The transcript allows us to get some useful insight into the thrust of the DoJ case. It is clear that the DoJ has decided to keep the issues simple and at the same time to exploit weaknesses in Microsoft's case. Jim Allchin not only bungled very seriously his video evidence, but he also made several incorrect statements about the "integration" of Internet Explorer and Windows 98 in his effort at disparaging Felten's work on a prototype removal program to separate operating systems functions from IE browsing. Consequently most of the deposition was focussed on Holley trying to trip Felten into some responses to rescue the situation. In the event he failed, but the journey served to make naked (again) Microsoft's dirty tricks. Felten and his helpers (former students who set up a consultancy called Elysium Digital) had been allowed access to Windows and IE code by Judge Jackson, subject to a court agreement about confidentiality. This proved Microsoft's undoing, since it made it relatively easy to find out the tricks that Microsoft had used in its "integration" of IE and Windows. Part of Holley's brief was to find out if there were any further nasty surprises that might be sprung during Felten's rebuttal evidence in court. Microsoft had received at the beginning of May a revised version of Felten's prototype IE removal program, which is likely to expose further Microsoft's dirty tricks when Felten gives evidence again. There was considerable sniping between Punch and Judy, with Punch admonishing Judy about exceeding the scope of what was allowed under the terms of the court order for the deposition. For a long time, Judy had only one question for Felten, which he answered patiently, but not with the answer that Judy wanted. Judy wanted to know what files in Windows 98 made up IE. It was of course a trick question, because the dirty trick had been to give many files double or more functionality, so that to remove a file with some IE functionality would be to stop Windows. One of Felten's replies about this was: "There are two things about that question that I think are misformulated. Number one is the idea that files are somehow indivisible units of software, because they're not. There are plenty of smaller units inside files, and smaller units inside those smaller units. Also, as I said, if you talk about what is the Internet Explorer product, it's defined in terms of what it lets the user do." Felten also repeated many times that "the question that I'm considering here is whether it's possible for Microsoft to remove the Internet Explorer browser product from Windows". Judy made no progress at all, and had there been an audience for this rehearsal, it would have withered away because of her constant repetition. A variant of Judy's questions was to enquire whether Felten had made IE bigger. Felten said: "I don't think it's important how big it is. The question... it was designed to ask... was can Microsoft remove the Internet Explorer browser product from Windows. And it answers that question in the affirmative." But not only that, there were many ways to remove IE functionality: "I'm sure Microsoft can find some that are more efficient." The removal program was "proof of concept" to show that Microsoft can remove the IE browser product. Judy became cross when Mr Punch produced his stick when Judy kept asking the same question: PUNCH: Okay. Objection at this point, and I will instruct the witness not to answer. I mean, this is repetitive. And I think you have gotten an answer in this deposition as well as having asked it numerous times before. JUDY: You know my attitude toward this. You refuse to answer this question, and sooner or later someone will take you to account for it. MR PUNCH (sternly): We shall see. JUDY (bravely): We shall see, yes, indeed. It was only when Felten offered to go through his removal program line-by-line that Judy was forced to move along. Judy had evidently read a bluffer's guide to Visual Basic programming, but when he found it was written in grown-ups language, he quaked. Judy tried to undermine Felten's credibility, but in doing so he inadvertently became the one who's competence was suspect. When Judy said Allchin "described a situation -- I don't remember what it was exactly" it was clear that Judy had forgotten her lines, and did not understand what a shell was when Felten was falsely accused of building a custom shell for IE with his program. In another exchange between Punch and Judy: JUDY: So MSHTML.DLL is or is not part of what you call the Internet Explorer browser? PUNCH: Objection on two grounds. One, vague as to "part of". And secondly, it is, again, beyond the allowable scope of this deposition. This has been testified about at length before. And on that ground I will instruct the witness not to answer. JUDY (cheekily): "Part of" is not English? Gee. I thought it was pretty common. Can you answer the question, Professor Felten? PUNCH: No, I've instructed him not to answer. JUDY: Oh, you're instructing him not to answer? Okay. Is the file SHDOCVW.DLL part of what you call the Internet Explorer browser? PUNCH: Same instruction. JUDY: Well, you'll have to answer it soon enough. PUNCH: I think he already has, I'll say for the record. JUDY (cheekily): Maybe to your satisfaction. PUNCH (after Alice): There's a difference between answering it and answering it the way you would like. Judy tackled Felten about the errors in Microsoft's trial testimony, and he replied: "There are many of them, and so what I can do is give you a partial list sort of by category. And since Mr. Allchin testified the most about this topic, I'll talk about what he said specifically. There are some errors in which he describes certain behaviour as erroneous or wrong or buggy behaviour of the removal program, when that behaviour is not in fact a bug. There are some cases in which he incorrectly describes what would happen on a machine in which the removal program had been run. There are claims that there are certain kinds of bugs when there's no apparent evidence to support that. Those are three categories that come to mind." Felten went on to detail some of Allchin's errors, such as claiming that Felten's program caused a memory leak. Allchin must have been winging it, and knowing that there are probably many problems in Windows with memory leaks, thought he could stick Felten with this. It is interesting to note that Microsoft has no technical rebuttal witness to respond, since it used this opportunity in a gamble to pick holes in the AOL-Netscape merger by calling a hostile AOL witness. Judge Jackson is therefore likely to be left with the impression that Allchin's evidence was unreliable, and that he deliberately mislead the court. It was unwise of Judy to bring up again the browsing capabilities of BeOS and Caldera OpenLinux, since both allow alternative browsers. It was also unwise for Judy to raise the dirty trick that Microsoft used to change the help system in Windows to be HTML and IE-specific. Another tack used by Judy was to bring up features it had added to IE5 that were not in Navigator, but it did not win any points because it was simply not relevant. Judy explored the consequences of removing IE, and fell into the trap that any user not wishing IE would not expect IE "features". Felten had shown in his program that it was possible for users to use the Windows update feature without IE, since the service is operated under contract to Microsoft from a non-Microsoft Web site. In one exchange, Judy introduced a dog, but it was a canard: JUDY: And you're going to testify under oath at this trial that the code that performs that functionality is gone from the operating system? PUNCH: Objection. JUDY (petulantly): No, that's a question, and I want an answer to it. PUNCH: Objection. Calls for speculation as to what he will testify about. JUDY: Nice try, Mr Punch. PUNCH (authoritatively): And in fact he has provided testimony on this very subject. And therefore I will instruct the witness not to answer. JUDY: Oh, boy. Oh, boy. You're going to follow that instruction? FELTEN: Of course. JUDY (sarcastically): Why have the dog and bark yourself, right? Perhaps the most wounding of Felten's replies was when he brought up again Microsoft's techno-sabotage of his program: "When I testified here in December I talked about a change that Microsoft had made to one of the ActiveX controls related to Windows Update and about how that had had the effect of making Windows Update no longer work in conjunction with the removal program. But before Microsoft made that change, this worked just fine. And Mr. Allchin says it did not. He's simply wrong." Another telling exchange may prove Microsoft's undoing: JUDY: Can you think of any other example of a situation in which a Microsoft witness said that it was not possible technically to break up DLLs? FELTEN: We have many Microsoft witnesses speaking as though files are indivisible units. That's been given as the premise of many questions asked by Microsoft counsel. As you know, I've told you many times that files are not indivisible units. JUDY (erroneously): That's -- you know, that's kind of an obvious point, right? FELTEN (magisterially): The point is to make this obvious point clear to the Court. A parody on Microsoft's penchant for incorporating everything in Windows was seen in a document written by Paul Mattal of Elysium. He put himself into Allchin's shoes and created an argument for incorporating Word (and by extension, Office) into Windows. It did not seem to have occurred to anybody that Microsoft is rather unlikely to do this in the near future, unless it finds the market becoming too competitive, since it has established that it can charge a monopoly price for Office separately. Felten wasn't word perfect (he didn't know that plug-and-pray was not in Windows 3.1) but his performance was solid for nearly five hours. He stuck to his simple thesis that IE should not be part of Windows 98, and emerged the victor. It now seems likely that the District Court will order that browser neutrality, or a choice as to whether there is a browser, will become one of the remedies, presumably with the onus being put on Microsoft to make this possible by a certain date. This should also require Microsoft making it possible for other browsers to use the Windows help system. ® Complete Register trial coverage

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