The Microsoft Trial

The Microsoft Trial

The Microsoft Trial

How you look at things.
Oct. 22 1998 3:30 AM

The Microsoft Trial

The lesson of Flytrap is to attack the inquisition.

The Microsoft antitrust trial opened this week, and it wasn't hard to figure out the theme of the Justice Department's case. "On Day 1, U.S. Targets Gates," declared the Washington Post's front-page headline: "Government Portrays Microsoft Chairman as Cagey, Ruthless." The New York Times called the DOJ's opening statement "a pointed personal attack on the credibility and integrity" of Gates. David Boies, the DOJ's lead attorney, focused his statement on Gates, juxtaposing video clips of Gates' deposition, in which the Microsoft CEO asserted his innocence, with e-mail messages and memos that allegedly contradicted those assertions.

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For months, Microsoft has treated the antitrust case as a silly nuisance. Rather than attack the case the way it has purportedly attacked its competitors, the company has largely ignored it, instead using its rebuttal opportunities to proclaim itself a producer of wonderful products and a dogged servant of consumers. In his opening statement Tuesday, Microsoft lead attorney John Warden associated the company with "the march of progress driven by science and technology."

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

This narcissistic nice-guy act can't go on. In politics, when you're attacked, you attack back. The Clinton White House has demonstrated the ugly efficacy of this strategy throughout the Monica Lewinsky investigation. The first weekend after the scandal broke, Clinton strategist James Carville went on Meet the Press to declare "war" on Independent Counsel Kenneth Starr. "The real focus here is on the methods [and] motives of the independent counsel," said Carville. He accused Starr of "wiring" women in hotel bars and plying them with whiskey. Two days later, Hillary Clinton called Starr "a politically motivated prosecutor who is allied with the right-wing opponents of my husband." This line of attack, pursued relentlessly over the following months, destroyed Starr's credibility. By the time Starr sent his report to Congress, polls indicated half the public placed no faith in his findings.

If Microsoft was to adopt the Clinton strategy, who would be its logical target? Let's see. Whom does the DOJ portray as Microsoft's chief victim? Netscape. Whose 1995 meeting with Microsoft is the centerpiece of the DOJ's case? Netscape's. Whose notes from that meeting are the DOJ's key evidence? Netscape executive Marc Andreessen's. Who is the government's opening witness? Netscape CEO Jim Barksdale. Which company's browser did the DOJ ask Microsoft to offer to Windows 98 customers? Netscape's. And who has most aggressively lobbied the DOJ and Congress to prosecute Microsoft? Netscape.

In its Oct. 19 response to Barksdale's written testimony, Microsoft signaled an increasing willingness to go on the attack. "Mr. Barksdale's inflammatory comments about the [1995] meeting [are] misleading and self-serving comments from a company that is trying to attack Microsoft through government interference, rather than by competing in the marketplace," charged Microsoft. "Mr. Barksdale apparently believes that government lawyers know better than millions of consumers, when it comes to which browser is the best. ... Mr. Barksdale appears to believe that the government should protect Netscape from the rigors of free market competition." On Oct. 20, Microsoft's media relations Web page steered reporters to a Times op-ed that called Netscape "a master of predatory pricing."

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Why Microsoft has previously eschewed this approach is anyone's guess. (Slate has no inside information on this question.) Maybe the company feared it would sully its image by openly slinging mud at a competitor. Maybe it wanted to deprive Netscape of all publicity, including bad publicity. Maybe it thought the antitrust case was legal rather than political and that judges were the only audience that matters. The best bets are: 1) Microsoft thought itself so obviously virtuous that it didn't need to defend its conduct. 2) Since Microsoft understands business far better than politics, it treated the antitrust fight as though it were just another marketing campaign.

Well, it isn't. For all its fearsomeness as an economic competitor, Microsoft has yet to appreciate that the weapons it is now facing--embarrassing memos and video clips--are the weapons of politics, not of business. Welcome to Washington, Mr. Gates.

Recent "Frame Games"

"Clinton's Peace Therapy": Is the Middle East deal a new chapter or a reminder of Monica? (posted Wednesday, Oct. 28, 1998)

"St. Matthew": The political use of a gay man's gruesome death. (posted Friday, Oct. 16, 1998)