To be honest, we really thought we'd be completely sick of the whole "Redmond Justice" thing by now, but it somehow manages to keep our attention. Just what is it about the case that keeps us coming back? Is it the behind-the-scenes glimpses into the sordid power struggles between ruthless corporations? The fascinating views into the arguably immoral and possibly illegal ways these corporations make incomprehensible amounts of money? The way these rich people are forced to defend their choices and actions while grilled by antagonistic lawyers? The atomic clash when an Irresistible Question meets an Immoveable Ego? Well, duh.
Seriously, though, this whole antitrust thing is still going strong and will continue for several more months. The thing is, we no longer doubt that it'll stay riveting until the very end. There's a great article in Computer Reseller News about why the trial is so closely watched, and it's not just because it's the first big antitrust case dealing with software monopolies. It's because the case has just about everything anyone would ever want in a Tom Wolfe bestseller: "money, power, greed, scandal, politics, race, media, and the prospect of a powerful man... being brought down to size." (Sure, there's no sex, but there are still plenty of witnesses left to testify.) The article does a great job of analyzing the "sweeping drama" of the whole mess and paints very vivid characterizations of some of the major players.
Plus, it gave us another reason to root for the Government's side: lawyer David Boies reportedly always wears black Nikes in court. While he's portrayed as more poorly-dressed than Microsoft mouthpiece John Warden, we have to cheer for anyone who would wear sneakers to court— especially during such a momentous case. (Yours Truly once turned down a job offer based almost solely on footwear considerations—if I can't wear skate shoes, I don't belong there.)
Surprise Witness (11/19/98)
Think being the richest man in the world would make someone relatively free from frustration? Not so, according to an Associated Press article. Bill Gates is reportedly very unhappy with his continual taped appearance on "Redmond Justice," which seems to happen every few days. Bill apparently didn't want to appear live on the show, as his own company didn't call him as a witness, and the government is only too happy to leave him out of it—especially since the deposition he gave last August contains plenty of videotaped testimony that supports the government's charges. That right there is Bill's complaint—the government is only showing the stuff that makes him look evasive, confused, or just plain malicious. Of course, Microsoft is perfectly able to show the positive side of Gates with their own excerpts from the deposition, but so far, they've declined. Perhaps there's not much material that they'd really want shown.
Anyway, the upshot is this: the government keeps showing taped footage of Gates' deposition, Microsoft has so far declined to show their own excerpts from the tapes as rebuttal (and can't very well cross-examine a videotape), and so Bill Gates has become his own worst enemy in the biggest trial of his life. What to do? Well, there's still the option of calling Bill as a witness. Yes, each side has already chosen their dozen witnesses and Bill didn't make the cut on either side, but a TechWeb article reveals that each side has the option to call up to two surprise witnesses. Surprise witnesses! The cornerstone of all true courtroom dramas! We may yet get Bill up live in front of those cameras. In fact, lead government lawyer David Boies claims that Bill "is indicating more and more that he'd like to come and testify" and that he's "sure his lawyers will listen to him." Wishful thinking on Boies' part? After all, he was the one who took the original deposition, and it's pretty likely that he thinks he could tear Gates to shreds during cross-examination.
We imagine that Bill's a little camera-shy after the last time he testified in person; remember last March's investigation into competition in the software industry? Senator Orrin Hatch reportedly got kinda nasty. Still, Bill may well feel that testifying in person is the only way to dispel the doubt surrounding his character. If he does order a shift in Microsoft's legal strategy and takes the stand, we hope for the sake of the show that it happens very soon—Sweeps Month is almost over.
Bleeding Them Dry (11/20/98)
"Redmond Justice" has just closed out the fifth week of its new fall season, and much of the high drama seems to have left the show. Early confrontations between Microsoft lawyers and the government's star witnesses—Netscape's Jim Barksdale, AOL's David Colburn, and even Apple's Avie Tevanian—were occasionally acidic, often spiteful, and always just plain entertaining. Now that we've moved into the bottom half of the batting order, though, the witnesses are more likely to be economists and antitrust theorists than celebrities of the high-tech world. Still, they serve an important purpose: one point that the government must prove if its lawsuit against Microsoft is to succeed is that Microsoft's actions hurt consumers. That's why economist Frederic Warren-Boulton is testifying on behalf of the government—and, thankfully, Fred's a pretty colorful witness after all. CNET has the story.
In essence, Fred charges that Microsoft is "keeping prices for its operating systems above market levels." As evidence, he points to internal Microsoft email messages which indicate that the company was very aware that their operating system prices kept rising while the prices on all other computer components were dropping. Those email messages indicate that Microsoft considered the possibility that eventually some PC companies might be pushed too far by exhorbitant prices, and they might try to go elsewhere for their operating system needs—but Microsoft wasn't worried, because their customers had such an investment in Microsoft's platform that alternatives wouldn't sell due to "inertia." That, Fred says, is a monopoly: Microsoft can charge whatever it wants to, because customers are so dependent on them that they have no choice but to pay. And according to the story, he held his ground under cross-examination.
Now, we're fully aware that when Fred talks about Microsoft charging more than they should for Windows, he's talking about OEM prices to PC manufacturers. (For instance, Compaq alone apparently had to pay three quarters of a billion dollars for Windows licenses one year.) But just for fun, let's consider the costs of off-the-shelf shrinkwrapped operating systems, shall we? Average selling price of the Windows 98 upgrade: $87. Average selling price of Mac OS 8.5: $87. Uh-oh. Suppose Apple should gear up for another lawsuit? Granted, one's an upgrade and one's a full OS, but still, you never know what could happen these days...
Motion Denied (11/22/98)
Five full weeks have passed in the new season of "Redmond Justice," and Microsoft is getting increasingly annoyed with the government's repeated practice of showing excerpts of Bill Gates' deposition before a witness is called. The portions of the testimony that the government has been showing uniformly reveal Gates to be forgetful, angry, difficult, combative, and less than credible. That's why, according to a Seattle Times article, Microsoft's lawyers officially requested that the judge prevent those excerpts from being shown in that manner. In a closed-door session, they requested that the government instead be forced to show the deposition in a single eight-hour chunk, instead.
Unfortunately for them, Judge Jackson sees nothing wrong with the manner in which the government is presenting that evidence. He rejected the request, stating that he found it "very effective" to hear Bill answer questions that were relevant to whatever issues were being addressed in court at the time. He went even further, suggesting that "if anything, I think your problem is with your witness, not with the way in which his testimony is being presented." Slam! Indeed, at this point is seems that Gates' unresponsiveness during his deposition could well be Microsoft's biggest liability in this case. If you're wondering what to get the world's richest man for Christmas, how about a big heaping helping of credibility? Then Microsoft could call him as a surprise witness and the fur could really fly.
What we find really interesting in the article is how Microsoft spokesman Mark Murray refers to Gates' testimony as an "immaterial sideshow." So the testimony of the man who is running the company on trial, and who has been personally named as the one who called for many of the alleged anticompetitive practices, is now "immaterial"? That's certainly a novel interpretation of things. Hang on tight, folks, because it just gets better and better...
Turkey A Day Early (11/25/98)
Most people in the U.S. are thankful to have a four-day weekend, but it seems that the lawyers working on the "Redmond Justice" case may not be so lucky. Even though this was only a three-day court week, it seemed to drag on forever; economist Frederick Warren-Boulton is still on the stand for cross-examination, as Microsoft lawyer Mike Lacovara tried to break down his testimony that Microsoft is a monopoly. Unfortunately, Mike is taking forever trying to find a chink in Fred's armor, and the slow pace of the trial hasn't put Judge Jackson in a particularly happy holiday mood. The judge has made it clear to Lacovara that when Fred takes the stand yet again on Monday, it should be for the last time. So it looks like Lacovara's going to be spending at least part of his Thanksgiving weekend "cutting his questions."
A New York Times article suggests that Microsoft's court strategy is to "challenge [Warren-Boulton] in so many areas that he will end up making one or two statements, inadvertently or otherwise, that Microsoft can use against him." That's not a bad strategy, nor is it an unusual one, we'd warrant—but it certainly hints that Microsoft is grasping at straws on this one. When, in all the hours of cross-examination of the witness, Microsoft has to resort to pouncing on a single "off-hand observation" that Netscape has added features to Navigator over the years and then proposing it as evidence that the government's own witness is guilty of supporting a double standard, well, frankly, it smacks of desperation.
You think "desperation" is too strong a word? Perhaps. But consider how strongly Microsoft is trying to use the recent AOL buyout of Netscape in court to strengthen its case—they're trying so hard to make a point, they're actually reporting incorrect facts. During his cross-examination, Lacovara actually stated that Sun would be acquiring Netscape Navigator under the terms of the buyout. That certainly woke up the judge, who asked if that was "really the case," to which Lacovara responded that "it was reported on MSNBC" so it had to be true. Ummm, Mike? Which company accounts for forty percent of the letters in "MSNBC"? Needless to say, the report was false—Sun distributes Netscape's server software under the terms of the deal, not the web browser. Hey, what's a Thanksgiving special without a big ol' turkey in the courtroom?
My Mac Magazine sincerely thanks Jack M. for his kind permission to reprint these news stories and observations. For further episodes of his ongoing Apple soap opera, bookmark his URL and visit regularly. We think you'll find it becomes a habit!
