Herbert Stein, a senior fellow at the American Enterprise Institute, was chairman of the Council of Economic Advisers under Presidents Nixon and Ford.
Day 14 of the Trial
Tuesday, Microsoft began to gain a little ground in opposition to the Department of Justice. Microsoft’s performance was awkward, irritating, and soporific. But at the end of the day, when one shook oneself to wake up, one realized that the atmosphere had changed a little. Of course, there is a long way to go, with lots of witnesses on each side still to be called. Today was a reminder that we are probably only in the first quarter of this ball game and that the outcome is still in doubt.
Early in the day, Microsoft began its cross-examination of Steven McGeady, the Intel executive, who had been such a sure-footed witness for the DOJ on Monday. The question at issue was McGeady’s position that Microsoft had threatened to use its control over the market for Intel’s MMX chip to force Intel to abandon a program, NSP, which Microsoft regarded as a danger to it. (I’m not going to try to explain what these acronyms mean. It doesn’t matter. One could just as well say that Microsoft had threatened to do X to force Intel to do Y.)
Microsoft started on what I thought was not a fruitful approach. It wanted to establish that in the computer industry, coordination, compatibility, and uniformity among all the ingredients of the final product are important. But that is not the issue. It is also true in this industry that market forces and the independent recognition of their self-interest by the various actors brings about the necessary compatibility. The issue is whether Microsoft is using monopoly power–“muscle”–to force the industry into its mold and into dependence on it.
Microsoft soon abandoned this philosophical line of attack and turned to the business of trying to discredit the witness from Intel. The lawyers proposed to do this by showing excerpts from a videotape of McGeady’s superior at Intel, in which he presumably took a different position. Unfortunately, the DOJ had not been notified of their intention to do this and requested an opportunity to study the whole videotape in order to see the context of the particular excerpts that were to be shown. This led to a 45 minute conference in the judge’s chambers, much to the disgust of the media present and also, I believe, to the annoyance of the judge. At the end of the conference, an officer of the court returned to inform us that we would now have a two hour recess for lunch.
When the proceedings resumed after lunch, the Microsoft case resumed in earnest, without benefit of any videotape. Microsoft took up the questioning of McGeady, with the aim of showing that there were legitimate business interests, other than the desire to reinforce a monopoly position, behind Microsoft’s decision to defer support for MMX and to limit the use of NSP. The witness remained strong and composed. At one time he was asked why he had not been included in a group from Intel that went to negotiate with Microsoft, and he responded by saying, “One riot, one ranger!” That gave everyone the only opportunity of the day to laugh. For much of the afternoon, I felt that the Microsoft lawyer was leading the Intel witness into a technological thicket where the witness was much more at home than the lawyer was. Still, after two and a half hours of mostly deadly dull questioning, I felt that doubt had been created where little seemed to exist before.
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I do not intend to return to this courtroom, enlightening as I have found it to be, so I will take this opportunity to leap ahead several months or, more likely, years. Suppose it is determined, which at this point is by no means certain, that Microsoft has violated the antitrust laws. What should happen then? What should Microsoft be required to do or to stop doing? That is a question to which nobody has even the glimmer of an answer, as far as I can see.
There are 20 or 30 professional reporters who have been sitting on those hard benches day after day for weeks and who have the prospect of sitting there for many weeks more. Yet they seem both serious and in good spirits. They pay close attention, they read the documents, and they have learned a lot about a difficult subject. They all have access to the same information. There will be no scoops. They all seek interpretation, and they exchange interpretations freely with each other. They also exchanged with me. I want to express my respect for them.
Finally, there are the lawyers. Yesterday, when I thought things were going badly for Microsoft, I noticed that the Microsoft lawyers didn’t look sad at all. They didn’t look like Norv Turner (the coach of the Washington Redskins) has looked much of the time on the sidelines this season. Perhaps they knew something about how the tide would turn that I didn’t know. Perhaps they find comfort in the thought of their hourly fees.
Anyway, the federal courthouse is across the street from the National Gallery, where every morning thousands of people line up in hopes of getting in to see the van Gogh exhibit. In the courthouse there is also a line of people–general public, not reporters–waiting to get in to see the Microsoft case. There were probably about 40 or 50 on the mornings when I went there. It’s a good show, and I recommend it–for one morning or afternoon, not more. You could learn something about how the world works–the business world and the legal world.
