David Plotz is a Slate senior writer.
Day 21 of the Trial
Although I may be the only Microsoft employee who also worked for the Department of Justice, I have so far refrained from commenting on the Microsoft antitrust trial. I knew that my broad (dare I say vast?) expertise–nine whole months as a paralegal in the DOJ’s Environmental Defense Section, two full years covering noncomputer issues for Slate–could intimidate my fellow reporters and might even sway the judge. To preserve the integrity of the justice system, I have stayed silent. Today, the silence ends.
Actually, it just seems like an excellent day for a courtroom visit. The morning papers announce that America Online is close to striking a deal to purchase Netscape for $4 billion and to form an alliance with Sun Microsystems. This merger is bad for Microsoft as a business, but since anything that’s bad for Microsoft as a business should be good for Microsoft as an antitrust defendant, the news seems to have put a spring in the step of the Microsofties at the courthouse.
Bill Neukom, Microsoft’s general counsel, makes an early morning appearance on the courthouse steps to crow about the merger. “The proposed deal demonstrates a simple truth: that there is vigorous competition in the marketplace and that Microsoft faces resourceful and capable competitors. From a legal standpoint, the deal pulls the rug out from under the government,” Neukom says. “The government should not be taking sides in an industry that is as open and competitive as this one. … The marketplace and competition [are] five steps ahead of government intervention.”
The news of the merger intrudes on the courtroom, too, though not till late in the morning. The day’s business is the cross-examination of government witness Frederick Warren-Boulton, an economist testifying to Microsoft’s monopoly status. None of the reporters I talk to is sure whether this is the third or fourth day of Warren-Boulton’s cross-examination. They are sure that he has been one dull witness. The interaction between Warren-Boulton and Microsoft lawyer Michael Lacovara is painful. Warren-Boulton is petulant and passive-aggressive: Every word must be dragged out of him. “Yes” has three syllables. Lacovara, young and hair-gelled, counters with as much condescension as seems humanly possible (though my seatmate assures me that Lacovara is by far the politest of the Microsoft lawyers).
Lacovara spends most of the first half of the morning unsuccessfully trying to get Warren-Boulton to admit that rival operating systems, notably one called BeOS, are eating into Windows’ market share. Finally, just before lunch, the merger pops in. Warren-Boulton is defending a chart that shows Microsoft’s share of the browser market rising to 70 percent of homes and 60 percent of businesses by 2001. Lacovara asks him if he read the newspaper this morning. Warren-Boulton replies that he did. AOL currently uses Microsoft’s Internet Explorer as its default browser. Lacovara pushes the witness to concede that 1) the merger makes it likely that AOL will drop Internet Explorer and adopt Netscape Navigator and 2) that switch will cut Microsoft’s browser share. The intention of the questioning seems to be to show that AOL holds the power and Microsoft is the supplicant.
But it is during these questions that it becomes clear that Microsoft is not going to win this spin battle after all. Warren-Boulton rejects the notion that AOL will drop Internet Explorer for Netscape’s browser. And when Lacovara tries to get him to admit that the AOL-Netscape merger proves that the software industry is competitive, Warren-Boulton responds, “It is unfortunate to see the disappearance of Netscape, one of the brightest stars [in the industry]. I regret that this has come to pass, that Netscape has been forced to the wall.”
He didn’t say two words at the end of that answer, and he didn’t need to. Everyone knew they were there: “by Microsoft“–“forced to the wall by Microsoft.”
At the lunch break, which should be known as the midday spin, lead DOJ lawyer David Boies tells reporters that according to today’s Washington Post, AOL will probably keep Internet Explorer as its default browser. “If AOL feels compelled to use Internet Explorer, even after it owns Netscape Navigator, that is an indication of Microsoft’s power.”
Microsoft wanted the day’s message to be: Microsoft is weak–look at the mighty AOL-Netscape-Sun triumvirate. Instead, Warren-Boulton and Boies have made Microsoft look powerful: the bully who keeps control of AOL’s browser. Neukom appears again to rehash his statement and to try to counter the default browser argument. (In his lunchtime statement, Neukom refers to the AOL-Netscape-Sun arrangement as a “powerful combination” and “stunning combination.” He lingers over the word “combination.” Perhaps he hopes to remind listeners of “combines,” the bad, old 19th century cartels.)
The afternoon session, after all this spinning, is a comedown. Lacovara spends most of it trying to show that Warren-Boulton is 1) a technical ignoramus and 2) hence unqualified to make intelligent judgments about the economics of the software industry. He fires technical questions at him about Java and operating systems. “Is there a principal reason why an operating system can’t include an HTML rendering machine?” “Do you know what a ‘caffeine mark’ is?” “Do you have any understanding of this subject?” Since Warren-Boulton is a technical ignoramus, Lacovara largely succeeds in showing that 1) is true, though it’s not clear that 1) actually has anything to do with 2).
By the time I split at 4 p.m., Lacovara has–in three-plus days of examination–covered only 11 pages of Warren-Boulton’s 89 pages of written testimony. Microsoft’s lawyers, who want to make sure the record is as thorough as possible for an appeal, are cross-examining their witnesses line by excruciating line. Judge Thomas Penfield Jackson, though he looks like he’d rather be anywhere else, must sit there and (pretend to?) listen to this. No one else has to, not even most of the reporters. By midafternoon, the courtroom press section is emptying out. My colleagues, I surmise, are ducking out to report the AOL story.
Click here for MSNBC’s full coverage of trial developments.
For more Slate coverage of the AOL-Netscape deal, see ” The Week/The Spin,” ” What’s in Netscape for AOL?” and ” Antitrust Mania.”
