Timothy Noah is one of the writers of Slate’s “Chatterbox” column.
Day 31 of the Trial
Every chance I get, I’ve been asking people I meet at the Microsoft trial: Why doesn’t Microsoft put Bill Gates on the stand?
Microsoft, of course, hasn’t put anybody on the stand yet; it doesn’t start introducing its witnesses in the antitrust trial until mid-January. (The trial is going to be in recess during the weeks of Dec. 21 and Dec. 28; apparently the U.S. district court has bundled Jesus Christ with its operating system.) But the betting is that the Microsoft lawyers won’t call Gates–even though the company has been taunting the Justice Department for its failure to call Gates in person. Presumably that’s because if they did he’d get chewed up on cross-examination by David Boies, the deceptively mild-mannered former Cravath lawyer who’s leading the Justice Department team.
Until today, I thought the Microsoft lawyers should call Gates anyway, because he couldn’t possibly create a worse impression than that left by the snippets of video depositions that Boies and company keep showing at the trial. But then they showed more snippets of Gates’ video depositions today, and I realized that there are indeed gradations of badness in Gates’ performance. Gates today was worse than Gates before (at least as reported in the press; I didn’t actually see any of the damning videos before), raising the ghastly possibility that Gates next month, in person at the E. Barrett Prettyman Courthouse, would be even worse than what I saw today.
Watching Gates on the two big black monitors in the courtroom (with a transcript helpfully scrolling just beneath the video image) you just wanted to slap the guy. He was asked about some e-mail from a Microsoft employee named Russell Siegelman in which Siegelman said he opposed putting an MCI icon on the Windows 95 desktop. “I don’t see anything in here about the desktop,” Gates said. The note actually referred to the Windows box. “The Windows box is definitely not the Windows desktop,” Gates said defiantly. “The Windows box is a piece of cardboard.” A can-you-believe-this-guy laugh burst forth in the courtroom. Then Gates was asked what Siegelman meant when he referred to Windows distribution as “our one unique and valuable asset.” Gates kept pretending the question was really about an unsuccessful piece of Microsoft software called Marvel and dodged the question five or six times.
But the instance where Gates became evasive on a truly Clintonian scale (without the Clinton charm)–the exchange that represented the single worst moment for Gates in the whole trial thus far–occurred when Gates was asked about a message Gates himself had written to other Microsoft executives in August 1997 about a rumored deal between Netscape and IBM.
The Justice Department attorney asked if he had typed “Importance: High” on the message.
“No.”
“No?”
“No. I didn’t type that.”
“Who typed that?”
“A computer.”
This time the courtroom laughter was utterly contemptuous. (For the record, after a little more pointless fencing, Gates conceded that “in this case, it appears I’m the sender.”) Later, to my surprise, I saw that a Microsoft press release actually attempted to defend Gates’ performance in this exchange: “[T]he government makes a big fuss over Bill’s statement that he did not personally type ‘Importance: High’ in a piece of email, but Bill is technically correct that he did not type those words–he merely clicked a button in his email program and the program did the rest.” Bill Gates is not responsible for his function keys! He probably doesn’t even know how the damn things work!
Anything after this was bound to be anticlimactic, and it was. A video deposition of a Disney executive named Steve Wadsworth was shown in order to demonstrate how Microsoft bullied Disney over its inclusion of a Disney graphic on a Netscape Netcaster channel. Wadsworth acknowledged complaining in a memo that Disney was “being roughed up by the thousand pound gorilla of the industry.” I suppose the Justice Department felt that Judge Thomas Penfield Jackson would be outraged at this unkind treatment of Mickey Mouse. But, of course, Disney is a “thousand pound gorilla” too, and it’s possible Jackson views a fight between these two as a corporate Battle of Stalingrad.
The final video snippet, before we broke for lunch (and I decided to call it a day), was from a deposition by Ron Rasmussen, a vice president at a Santa Cruz-based operating system vendor called SCO. The gist of his testimony was that SCO bundles its operating system with Netscape in several desktop programs and that it’s easy as pie to unbundle them by just hitting a tab or the space bar while setting up. The point, I guess, being that if a diddly-squat little software company can do this, why can’t Microsoft?
Click here for MSNBC’s full coverage of trial developments.
