The Microsoft Trial

Notes from different corners of the world.
Nov. 13 1998 9:30 PM

The Microsoft Trial

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       Jodie T. Allen is Slate's Washington editor.



Day 16 of the Trial



       I will not pretend to be an objective observer of the Microsoft trial. You wouldn't believe me if I did. Unlike my predecessors in this assignment, I am bound by ties, both sympathetic and financial, to the corporation whose rise to power and affluence has earned it the enmity of the Justice Department's antitrust division. My early working years as a computer model builder in the era of IBM hegemony also gave me a strong appreciation for the virtues of compatibility. And I grew up rooting for the Yankees.

       For a Microsoft retainer, this might seem to be a pretty good day for a courtroom visit. Microsoft spent the morning in full attack on Steven McGeady, the Intel executive who has charged that Microsoft strong-armed Intel into abandoning work on Native Signal Processing--a multimedia software project McGeady managed--and pressured the chipmaker to stay out of software programming in general. It displayed a string of e-mails and memos between and among Microsoft and Intel executives plus McGeady's own handwritten notes. Some were long and dull, some short and amusing. One, a note from Intel CEO Andrew Grove to Microsoft CEO Bill Gates after a July 1995 dinner they shared concludes with a "smiley face."

       The selections highlighted by Microsoft's lawyer for the day, Steven Holley, seemed to reveal McGeady as a disgruntled employee, a source of friction and trouble within his own firm who was finally shipped off to MIT to get him out of the way. Here was a man who denigrated his superiors' abilities and memories, put colorful words ("cut off Netscape's air supply," "embrace, extend, and extinguish") into Microsoft executives' mouths unsupported by his own (or anyone else's) notes, leaked confidential documents to the New York Times and worked to establish a personal relationship with Netscape's chairman not necessarily compatible with Intel's interests. Not what you'd call a reliable witness when it comes to characterizing his firm's relationships with Microsoft. Or so it seemed to a first time visitor to the court.

       But that is not the way it appeared to others in the audience who have witnessed the trial from its beginning. For them the roles in this melodrama have been clearly assigned. Holley--and his Sullivan and Cromwell associates at the Microsoft defense table--are "arrogant New York lawyers," as one journalist described them to me. The better to represent their arrogant clients. By contrast, the Justice Department's high-priced gun-for-hire, David Boies, is easy and charming. "I hate to miss seeing Boies perform," said another journalist who had been absent during Holley's morning cross-examination but returned to the courtroom to hear Boies' afternoon "redirect." The judge, Thomas Penfield Jackson, is clearly also a hero of the piece with his good-humored, straight-from-central-casting judiciousness and his interest in technical detail.

       As for the carryover witness, McGeady makes no effort to hide his own arrogance. ("I've been called much worse," he quipped, when confronted with notes in which he recorded that his Intel boss had called him "belligerent" and a "prima donna.") Still he is cast in a "good guy" role, having already charmed the audience and the judge with his confident handling of technical detail and his ready wit.

       Holley, for his part, tries to be more congenial than I imagine--from reading Michael Lewis' entertaining dispatches--his fellow defense lawyers have been. ("Forgive me, Your Honor, if I didn't make that clear." "Please take as much time as you need to read the exhibit.") Holley has no accent that lends itself to easy ridicule. But he cannot keep the sarcasm from his voice when he tries to draw blood from his witness. "Is it not true," he sneers, that while at a colloquium at Harvard Business School, McGeady made remarks about possible antitrust violations by Microsoft simply to make himself sound more knowledgeable and impressive than he really was? "Seemed like a good thing to do at Harvard," McGeady replied cheerfully to appreciative laughter from the audience. "On that note," said the judge gratefully, "we'll recess for lunch."

       Holley finishes his cross-examination shortly after the session resumes. This is followed by Boies' redirect in which he attempts (with less success than he had promised at a noon press conference) to rebut each of Holley's attacks on McGeady's credibility. This is turn is followed by Holley's re-redirect, after which Boies gets a re-re-redirect (perhaps those are not the official legal terms).

       In the course of all this, Holley has scored some mostly unanswered points. A McGeady memo admitted that his own group had (expletived) up in developing NSP for Windows 3.1 rather than Windows 95 so that Microsoft's objections to its release might, as the firm contends, have been made on quality rather than anti-competitive grounds. McGeady wrote a memo to Grove raising the possibility that Microsoft could be "goaded into doing something really stupid and anti-competitive" that would finally catch the attention of the "placid anti-trust police." ("That would be the Department of Justice?" asks the judge.) McGeady himself seems to have engaged in what a casual observer might call anti-competitive behavior. He tried to convince Sun Microsystems, which produces microprocessors in competition with Intel, not to develop a chip optimized for the Java language Sun promotes. That was not, you understand, because Intel feared the competition, but only because, McGeady said, such a chip was "technically not a fruitful idea."

       This, in fact, is today's major thematic point: Everybody does it. Did not Intel, Holley asked, convene a meeting of developers of the four dominant versions of the Unix operating systems--which is used by more than 80 percent of large Web server computers, including IBM and Sun--to encourage them to "collude" on a uniform version of Unix that might compete more strongly with Microsoft's systems? (Not "collude," objected McGeady.) Did not Intel give away software free in the interests of increasing demand for PCs and hence for Intel's microprocessors? ("We didn't believe we engaged in predatory pricing," said the witness.) And how about this e-mail in which Netscape's Marc Andreessen complains that Intel won't stop bundling AOL's browser with its processors?

       Yes, dear reader, it's a dog eat dog world out there. And the question is: When all the canines of the world of high-tech get done scrapping with each other in courtrooms, will anyone be the better for it except the lawyers who hold their leashes?

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Michael Lewis is the author of several books, most recently, Moneyball: The Art of Winning an Unfair Game. Herbert Stein, a senior fellow at the American Enterprise Institute, was chairman of the Council of Economic Advisers under Presidents Nixon and Ford. He died in September 1999. Seth Stevenson shops for Slate. Timothy Noah writes "Chatterbox" for Slate. Jodie T. Allen, former Washington editor of Slate, is a senior writer at U.S. News & World Report. Jonathan Rauch is a senior writer for National Journal and a writer-in-residence at the Brookings Institution. Kate Galbraith was formerly an assistant editor at Slate. Jack Shafer is Slate's editor-at-large. William Saletan is Slate's chief political correspondent. David Plotz is Slate's Washington editor. Jodi Kantor, a former Slate New York editor, edits the New York Times' "Arts & Leisure" section. Kenly Webster, a former federal prosecutor, specializes in litigation at Shaw Pittman Potts & Trowbridge, where he is a senior counsel.

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