The Microsoft Trial

Notes from different corners of the world.
Oct. 19 1998 9:30 PM

The Microsoft Trial

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Day 1 of the Trial

       I can understand why the wheels of justice must grind slowly. But must they also grind unpleasantly? The district court in Washington, D.C., has the charm and efficiency of a Soviet customs office. The ceiling of grime-streaked white tiles is illuminated by tubercular fluorescent lights. The seal of the United States over the full moon face of Judge Thomas Penfield Jackson appears to be made of the same hard plastic as a Halloween mask. And as Jackson in perhaps a moment of pique elected to hold the greatest business trial in 25 years in the SMALL courtroom, most of the 450 reporters who turned up are left to rot in the hallways. Fewer than 50 journalists have been granted an honest view of this great event (I'm one). A few more may be let in from time to time, as members of the general public, but once in they are required to remain in their seats straight through recesses and lunch. They must cross their legs tightly and fast for eight hours.
       The first day of the trial belonged entirely to the U.S. government. David Boies, the expensive trial lawyer hired by the Justice Department to argue its antitrust case against Microsoft, put on a riveting slide show. Boies is one of those rare professional men who refuses to look like what he is. He wears a cheap, ill-pressed blue suit; black, rubber-soled Reeboks; a white button-down shirt; and one of those long, rectangular cotton weave ties favored by college freshmen at Midwestern public universities. Yet he has spent most of his career at Cravath, Swaine & Moore! People who underdress for fancy jobs often are credited with modesty--or at the very least with a lack of affectation. But Boies' attire is sufficiently conspicuous to constitute another form of affectation. It virtually shouts: I am so good at what I do that I don't need to hide behind three grand worth of threads.
       And he is, or seems to be. It's hard for someone like me who is new to this interminable lawsuit to evaluate the legal implications of the day's events. The reporters who have covered the case for a while seem to view any seeming victory by the government with intense suspicion. The courts these days are not friendly to antitrust cases. The court of appeals for the D.C. circuit already has ruled against one of the Justice Department's central claims--that it should be illegal to link a Web browser to an operating system. And even if this case does slither through the district and appellate courts the defendant will almost certainly march on to the Supreme Court.
       But if an ordinary citizen had sat in the courtroom today his concern with the legal aspects of the case would have been overwhelmed by its deeper fascination. It offers a spectacular view into the guts of the software industry. In his slide show Boies juxtaposed Microsoft's legal contentions with documents dredged up from just about every big company in the computer business. (Business journalism would benefit greatly if reporters had such subpoena powers.) The moment of high drama came when Boies played short clips of Bill Gates' videotaped testimony. Back and forth he cut between memos written by Gates and the great man himself, under oath, looking as if he had swallowed a bad oyster, denying much of what he had written. In the end Gates claimed he has never even read the Justice Department's complaint against Microsoft, or even a summary of it. At this point in his testimony a few in the crowd were actually chuckling.
       In the courtroom today two things became instantly clear about the software industry. The first is that Microsoft exercises a power unthinkable in most markets, and it does so ruthlessly. The evidence for this was not a snippet here and a snippet there but a tidal wave of e-mails and memorandums in which Microsoft strong-armed competitors and customers.
       "If we had a choice of another supplier, based on your actions in this area, I assure you you would not be our supplier of choice." (A Hewlett-Packard executive, a putative Microsoft customer, in letter to Microsoft.)
       "Gates delivered a characteristically blunt query: 'How much do we need to pay you to screw Netscape??' " (America Online internal memo of meeting with Gates. Jan. 21, 1996.)
       "I don't see why Intel funds a group that is hostile to Windows 95." (Bill Gates' irate e-mail to Andy Grove, Intel's CEO. Feb. 13, 1998.)
       And so on. And on. As a rule, it became clear, Microsoft gets what Microsoft wants. When Bill Gates tells Andy Grove to stop dealing with the competition, Andy Grove stops dealing with the competition.
       The other striking thing today was the quality of minds on display. Technology people are said to be more highly intelligent than average businessmen. You would never guess it from their memos and their e-mail. Their English is barbaric, their thinking unoriginal, their humor witless. More often than not Boies felt compelled to translate the words he read aloud from the memos, so that the rest of the courtroom might simply understand. When a technogeek wishes to confer a sense of urgency upon a task, he refers to it as an "action item." One Microsoft executive writes, with typical metaphorical hysteria, of trying to "avoid a cold or hot war with Netscape." Another warns, "If we're getting shut out [of the browser market] we should escalate to Bill." Escalate to Bill? Technogeekspeak!
       I doubt any sane and reasonable man could come away from today thinking anything but that Microsoft is guilty of many awful things, and if those things aren't strictly illegal they should be. On top of it, he would probably decide that Bill Gates had perjured himself. But the sane, reasonable man is clearly not the audience for this trial. The Microsoft lawyers, at least, seem already to have conceded the public relations struggle. When Boies finished his offensive there remained an hour and a half on the clock. The judge offered the time to Microsoft's lawyers, but the lawyers said they preferred to wait until tomorrow. And because of that tomorrow's newspapers will have in them nothing of Microsoft's point of view.

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.