Timothy Noah is one of the writers of Slate’s “Chatterbox” column.
Day 29 of the Trial
Judge Thomas Penfield Jackson, who is presiding over the Microsoft trial, does not have a favorable impression of reporters. “I have a visceral sense that the relationship between a potentially newsworthy case and the press is roughly comparable to the relationship between a healthy organism and an infectious disease,” the jurist said in a speech last year. “The press, like all infectious diseases, is a predator. It will feed on whatever it can find, including the host, if its appetite is not sated.”
This commentary was faxed by Jackson to the Washington Post in lieu of an interview for a profile that leads the “Style” section of today’s paper. The story is not likely to increase Jackson’s affection for the Fourth Estate. It notes that the Washingtonian, a city magazine here, pegged Jackson “one of the least-respected judges on the federal bench.” The Post says Jackson has a reputation for “a notoriously slow docket and a fondness for recesses.” It says he was an attorney for Richard Nixon’s Committee to Re-Elect the President in 1972, which, the Post reminds us, supported “the break-in of the Democratic National Headquarters in the Watergate.” It says his name came up as a possible contender for the D.C. Superior Court and D.C. Court of Appeals but that he wasn’t named and that “some lawyers” suspected the reason was that “he was a member of the then whites-only Chevy Chase Club.”
The story also says a few nice things about Jackson–he was “a tenacious trial lawyer”; he has, in the words of one former colleague, a love of the English language–but mostly the piece is not nice. “I wouldn’t say we’ve given up on Jackson,” one anonymous Microsoft “insider” is quoted as saying in the piece, “but there’s a definite focus on building a record that will help us before the appeals court.”
Given all this, it’s pretty baffling that much of the evidence introduced by Microsoft in today’s trial consists of … news clippings! The clippings are from various computer magazines. They are cited by Microsoft associate general counsel Tom Burt as evidence that Sun Microsystems is being a crybaby when it complains that Microsoft tampered with its Java program in a way that made it easier to use with Windows and harder to use with Windows’ competitors. For example, Burt says triumphantly, PC Week has written, “It is not supportable to accuse Microsoft of twisting Java to its own ends.” But where did Burt get the idea that Jackson gives a hoot what PC Week thinks? Doesn’t Burt know that Jackson hates reporters? Doesn’t he know that Jackson probably hates reporters a little more today than he does on most days?
Today’s witness is Sun Microsystems Vice President James Gosling, who is continuing testimony begun last week but interrupted this week to accommodate David Farber, an expert witness from the University of Pennsylvania. Gosling doesn’t like Microsoft any better than Farber did–both are witnesses for the government–but Gosling is much more articulate. His hair is long but bald on top, and he has a beard. He has the air of a Silicon Valley hipster; although he is wearing a suit today in the witness box, several reporters tell me they’ve seen him observing the proceedings wearing Birkenstocks and a leather jacket. When Burt grills Gosling about a meeting in which Microsoft executives offered to help work out an interface problem between Java and Windows, Gosling gets off an excellent line: “Often when Microsoft was holding out their hand, there was a knife in their hand and they were expecting us to grab the blade.”
Throughout Gosling’s cross-examination by Burt and subsequent questioning by David Boies, the former Cravath lawyer who is lead attorney for the Justice Department on this case, Gosling’s stance is roughly this: Sun is the United Nations. It wants its Java software to be compatible with all other software. Borders between nations are a geographical fiction. We are all brothers under the skin. But Microsoft is the Roman Empire. It craves world domination. So it forced Java to become subservient to Windows 98. Microsoft’s stance, as I can glean it from Burt’s questions, is that Sun wants to be the Roman Empire too and that, in cahoots with America Online and Netscape, it may get its chance. According to this view, the U.N. stance is a ruse. For all its peace-loving talk, Sun is readying its troops to invade. But Gosling says the AOL-Netscape deal isn’t as fearsome as Microsoft says it is.
Burt: Isn’t it true AOL is paying “over $4 billion” to acquire Netscape?
Gosling: “In the realm of acquisitions,” $4 billion “is a relatively small price” to pay for a company.
It’s an answer that seems likely to appeal to Judge Jackson: Don’t believe everything you read in the papers.
Click here for MSNBC’s full coverage of trial developments.
