Allchin heads for video remix
We look at the events leading up to this week's disaster
The hot news in the trial at the moment concerns the Felten prototype removal program to stop browsing functionality in Windows 98. It has been seized upon by the hungry media as a stick with which to beat Microsoft. To refute the suspicion that Microsoft deliberately misled the court, the evidence needs examining very carefully and forensically, away from the Star Chamber. An overnight re-run, with referees from both sides in attendance, is unlikely to resolve all the issues. If the evidence stands further scrutiny, retribution should be swift, appropriate, and include a consideration of criminal sanctions. Because the Felten video issue will be much discussed, we are posting the full text of the videotape voice-overs so that readers of The Register can assess the facts so far for themselves (Full transcript). This is accompanied by a chronology (below) of the related events and a detailed analysis of the cross-examination. In matters of business ethics, Microsoft has not lost its virginity: it was never a virgin, even in the earliest days when Gates used time on a Harvard computer for his private for-profit purposes. CHRONOLOGY Early September: Felten provided Microsoft with a copy of the source code of his prototype removal program. 4 December: Microsoft modified some of the software it used as part of Windows Update, with the result that there was incompatibility between the new version of Windows 98 and Felten's program. 11 December: Felten's direct testimony was unsealed. Felten said on his Web site that his program was not available publicly, and also made it clear that he was an independent consultant to the DoJ. In this work, he was assisted by Christian Hicks (age 24) and Peter Creath (age 23), formerly at Princeton with Felten, and now with a consultancy that they formed called Elysium Digital. Their Web site claims "many years of experience" for the youthful Creath, and "wide experience " for the older Hicks. 14 December: Felten's cross-examination, including a demonstration of the removal of browsing capability from Windows 98, with continued functionality of Windows 98. 16 December: Microsoft filed a Representation concerning allegations by Felten that Microsoft had made "some change to the Windows Update site that he believed interfered with is add/removal program" (and it was interesting that Felten never used the word "add" – just "remove"). Microsoft said that it provides updates about every two weeks, and had modified the site on 4 November (for version 2 of the Windows 98 Update), and again on 4 December. 13 January: Judge Jackson ruled: "Plaintiffs' motion to strike the Representation of Microsoft is denied. The Representation has been controverted, and consequently it is of no probative force or effect at this stage whatsoever other than as a Representation as to what purported testimony will be." Since Allchin was to testify concerning the representation, the judge reluctantly allowed document discovery and a further two hours of deposition to be taken from Allchin, since in Allchin's direct testimony there was no detail of the tests on Felten's program, although Microsoft said it caused Windows 98 to fail. Late January: Further deposition of Allchin. 26 January: Short video by Allchin. 29 January: Allchin's direct testimony released. 1 February: Allchin's cross-examination commenced. Microsoft played a video of its testing of the Felten program, and a second short video in which Allchin purported to show that IE remained after Felten's program was run. 2 February: Allchin's cross-examination was concluded. Redirect examination was by Steven Holley. Felten's original demonstration on video is no longer at the MSNBC site, although the date it disappeared is not known. The youthful Creath and Hicks appear to have been responsible for spotting an anomaly on the Microsoft videotape that suggested that the title bar of the Windows update window said "Internet Explorer" rather than "Windows 98", which was what it should be after Felten's program had been run. Allchin went belly up, and surrendered. The Microsoft spin doctors span very fast. 3 February: The redirect examination continued, followed by a devastating re-cross-examination by Boies. At the end of the day, it was agreed that Allchin would personally repeat the test, surrounded by heavy breathers. At the end of the hearing yesterday, there was a bench conference between the lawyers and the judge. The court: I do not believe that he [Allchin] deliberately falsified this, but it does cast serious doubt on reliability of that exhibit all together. If you would like to have an opportunity to have him go back and do it himself and videotape it while he does it himself and then come in and tell us what it shows- Holley: I would, your honour. I apologise that this demonstration, which is what it was, got bolloxed up, and I'm confident and represent to the court as an officer of the court that we did nothing to these demonstrations. The court: I didn't think he did, but Mr Boies has done a very professional job of discrediting those tapes. Holley: Well, the test results were what they were, and we are confident with that, and I would like, your honour, the opportunity tonight to do exactly what your honour suggests. So, if we could recess until tomorrow morning. The court: I'm sure we can. Boies: No objection. Your honour, could we have somebody present during that demonstration? Holley: Absolutely, your honour. The court: Yes, that would be the best way to do it. ® Complete Register trial coverage
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