Day 9 of the Trial
This morning opened with the lawyers huddled in front of the judge, as the Microsoft team made one last attempt to prevent the Gates tapes from being aired. But when they failed to think up a legal argument, the judge told them to sit down and shut up, presumably so that the rest of us might move on to other business. But having dispatched the lawyers, the judge acknowledged once again that his dog ate his homework. And so he retired to his private chambers to read depositions.
While the judge caught up on his reading, a couple of hundred people squatted in his courtroom. In addition to the usual mob of journalists, these included the next government witness, Avadis Tevanian Jr. of Apple Computer, who sat in the front row of pews reserved for the general public with his lawyers and handlers; Mary Boies, the wife of DOJ counsel David Boies, who sat right behind him; and a pair of staffers from Orrin Hatch’s Senate Judiciary Committee, who sat in the wickedly comfortable chairs in the jury box. At length, the judge returned, and everyone in the courtroom once again rose and fell with renewed expectation that something might actually happen. But at that point the judge’s stomach must have rumbled, for his attention turned swiftly to the courtroom clock. Although it was a good 30 minutes before our usual noon break, he announced with great gusto that it was time for lunch. And off he ambled, as he does each noontime, to dine at his club, the Metropolitan.
The whole crowd reassembled at 2 o’clock. From then until 4:30, with only a single austere break, we were treated to our first real viewing of the Gates tapes. The DOJ has moved on from Microsoft’s manhandling of Netscape and AOL to Microsoft’s manhandling of Apple. The tapes showed Gates responding to David Boies’ questions, which more or less accused Gates of using Apple as a kind of corporate assassin to bump off Netscape and Sun. Perhaps the most enthusiastic charge was that Microsoft threatened, in the middle of last year, to cease development of the Macintosh version of Microsoft’s Office software unless Apple made Internet Explorer the default browser on the Macintosh. Although Apple very badly did not want to do anything to harm either Sun or Netscape, the Microsoft threats resulted in an agreement between the two companies in which Microsoft, as usual, got what it wanted.
All this played out dramatically on the courtroom’s three TV screens. These screens were split, with the exchanges between Boies and Gates scrolling on one side, and the video of Gates’ deposition from Aug. 29, 1998, on the other. Gates sat unhappily, hollow-chested and hunchbacked, his hair hanging down in sawtooth jags over his forehead. When he turned his head slightly to grab for his Diet Coke, he revealed a side part that was more an idea than a fact. He looked for all the world like a 12-year-old boy who had been dressed by his mother before being delivered up to the middle-school principal bent on discovering how he, the kid, had caused all the school’s toilets to overflow simultaneously. Boies would ask his question in a distinctly aggressive tone–he has the New Yorker’s gift for making “sir” sound like an insult–and Gates would just stare at the desk in front of him for what seemed like minutes before saying, “yes,” or “no,” or, more typically, “I don’t remember.” And when asked by Boies to pay extra close attention to some matter, Gates would rock back and forth in his chair, just as the profiles of him all say that he does, like a hummingbird at a feeder. I think these were the moments everyone liked best; they were like little legendary scenes from old movies. (“Play it again, Bill.”)
In the end, Gates did not so much refute Boies’ charges as ignore them. When presented with damning e-mails sent by him to his underlings, and by his underlings to him, he claimed he was unable to recall them–or pretty much anything else, for that matter. And so Boies would flash up the most damning e-mails between Microsoft executives (“Bill’s top priority is for us to get the browser in the OS release from Apple”; “MacOffice is the perfect club to use on Apple”), or from Gates to his staff (“Do we have a clear plan on what we want Apple to do to undermine Java?”), and Gates would stare at them as if they were the most extraordinary documents he had ever laid eyes on. None of the lawyer’s charges registered. With each new assault he stared more intently at the table in front of him with an expression that blended hurt with profound incomprehension. Not 30 minutes into the performance, it became clear to everyone still awake in the courtroom that Gates was a front man for whoever actually ran Microsoft.
I’m not sure that anything was revealed that wasn’t already known. Perhaps there was news made; if so, we will read about it tomorrow. But it is worth considering for a moment the general fuss made over the Gates tapes. They did not need to be shown to be admitted as evidence. And in the absence of a jury, it is hard to see any legal consequences from airing them in court. Which is to say that their apparently huge relevance has nothing to do with the legal case and everything to do with public relations. As if to make this point, the Microsoft lawyers, when forced to decide upon some flattering selections that might be aired after the government’s unflattering ones, called for advice not from other lawyers but from the Microsoft corporate flack, Mark Murray. The sight of Murray directing the lawyers sent the Justice Department lawyers into a fit of giggles. “They have the PR guy making the decisions,” hissed Boies to one of his colleagues. But is it possible, since Microsoft inevitably will win its case, that the only real consequences of this trial will be whatever shift occurs in public perceptions?
******
A pair of corrections and a disclaimer. During the long lull this morning, a reporter from Reuters informed me that what I took for a North Jersey accent in AOL executive David Colburn was in fact a Milwaukee accent. At lunch in the courthouse cafeteria, I was joined by Mary Boies, herself a lawyer. She told me that I was wrong about her husband, David, and that his attire is not an affectation. He’s been wearing the cheap, ill-fitting suits for 20 years. And his black high-top, rubber soled shoes are more often Nikes than Reeboks. Finally, I would like to remind readers that I am working on a book about Silicon Valley, in which several people who loathe Microsoft figure prominently. On the other hand, I am being paid for these “Dispatches” by Microsoft. I suppose I am sympathetic to the Silicon Valley ethic, summed up in the local saying “No conflict, no interest.”
