Jodie T. Allen is Slate’s Washington editor.
Day 34 of the Trial
It’s the second day after the court’s holiday break and the temperature in the courtroom–both physically and emotionally–is much lower than when last I attended. The Justice Department’s lead counsel, David Boies, and Microsoft’s chief advocate, John Warden, actually exchange a couple of pleasantries in the course of the proceedings. Those in the visitors’ pews have thinned to a dozen or so observers, and the seats reserved for the press are no longer crowded. No one bothers to sign us in.
The morning is devoted to completion of the testimony of Intuit CEO William Harris. Harris has been a big disappointment to my colleagues in the press who had been hoping for some fireworks. Boies had repeatedly touted him as a potent witness for the government’s case. That’s partly because Harris was prepared to suggest a “remedy” (limits on any additions to Windows operating system features) in the event that the court finds against Microsoft, and partly because, unlike most early witnesses, he has no obvious anti-Microsoft ax to grind. His company’s financial software products–Quicken, QuickBooks, TurboTax, etc.–command upward of 80 percent of their markets. And while a one year agreement with Microsoft to “bundle” the Internet Explorer browser with Quicken in return for a “platinum” position on Microsoft’s Active Desktop failed to produce the hoped for “eyeballs” for Intuit Web sites (because users shunned Active Desktop), the deal didn’t seem to hurt Intuit in any measurable way.
Today, Harris offers one telling argument (Judge Jackson leans forward in his chair to take special note). Prior to the agreement with Microsoft, Intuit had promoted the Netscape browser on its Web site with a download button and a link to the Netscape site. But, on Microsoft’s insistence, the company removed those promotions. Why did Intuit agree? “To get our content and promotion of it onto the Windows operating system.” This impresses Jackson.
But Harris, a pleasant-looking man with a congenial manner, hasn’t been paying enough attention to his lawyers. Unlike Bill Gates (who, in the videotaped deposition snippets that Boies again uses to spice up the proceedings, answers testily in monosyllables and quibbles Clintonesquely over words), Harris cheerfully volunteers a good deal of information, some of it more helpful to Microsoft than to the government. Warden carefully picks apart some key parts of his testimony.
Yes, now that Netscape and America Online have merged they will control 60 percent or more of “portal” (entry to the Net) use–though Harris doesn’t consider the merger “anti-competitive.” Yes, it is true that Microsoft’s advantage in setting the default page for its browser didn’t really amount to much, since Internet service providers (which most people use to access the Internet) routinely reset the default to their own pages. And yes, many portal sites, such as the leader, Yahoo, are very successful despite not having an icon on the Windows desktop. (Of course, Harris notes–and gets a good laugh for it–if there were an icon for a central pornographic site, “I’d guess it would be very popular.” “I don’t know what the icon would look like,” opines the judge. I can guess.)
No, Harris did not know for a fact that Gates had personally ordained that no “platinum partner” could promote an alternative browser. Yes, it was true that even absent the agreement Intuit would probably have chosen to embed Internet Explorer rather than Netscape into Quicken because it had scored higher in the company’s technical evaluation. And yes, Intuit had not restored the Netscape download button and link even after the Microsoft agreement expired. Not a big score for the government, my journalist friends agree.
The government’s last witness, MIT Professor Franklin Fisher, promised to be a more potent witness for the DOJ. Fisher–who, Microsoft asserts, once took opposing views when he was IBM’s chief economics expert in its lengthy antitrust trial and whose expertise has been called into question by other courts–testifies to the scope of Microsoft’s dominance in the software operating system market. He argues that the company’s giving away of the Internet Explorer browser amounts to illegal predatory pricing. He presents his analysis of data on pricing agreements between Microsoft and computer makers. But much of the afternoon is consumed by the tedious (the judge actually dozes off briefly) and tendentious efforts by a Microsoft lawyer to impugn an analysis of browser use prepared under Fisher’s direction by a firm selected by the DOJ. Fisher is unaware of the source of a blurry table employed in the selection of ISPs to include in his sample. It was, Microsoft spokesman Mark Murray later informs me, a Microsoft document, but one of scant credibility, prepared in fact by a young female intern. Now who would trust a source like that?
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