The Microsoft Trial

Day 12 of the Trial

       The trial has now turned into tag team wrestling. Yesterday John Warden hauled himself out of the ring and tapped a younger, fitter lawyer, Theodore Edelman, to replace him. At the same time, the government yanked out Gates and tossed into the fray a live witness who can recall his immediate past, Apple’s chief software engineer, Avadis Tevanian. The new pair of combatants, Edelman and Tevanian, are so different from their predecessors that the trial feels almost new. Instead of the endless blasts of hot air brought forth by Warden’s hog-stomping tactics, the exchanges now have the crisp, staccato sound of a David Mamet play. For the first hour, and for the first time since the trial started, the witness was perfectly controlled by the Microsoft lawyer.
       But the general effect of the thing remains as odd as ever. The new Microsoft lawyer has the warmth of a corpse. He wears a funereal dark charcoal suit and matching hairdo and has the pallor of a man who hasn’t seen daylight in years. If the courtroom population were asked to vote who in the chamber was most likely to be a vampire, he’d win by a landslide. But next to the witness he comes across almost as a hail fellow well met. Tevanian has a Ph.D. in computer science and an intelligence that is cold to the touch. Unlike the others who have come before the court, he says or does nothing without a very clear purpose. He has the air of a murderer who is unlikely to get caught.
       In his written testimony, Tevanian claimed that Microsoft muscled Apple in much the same way as Barksdale claimed it muscled Netscape and Colburn claimed it muscled America Online. In Apple, Microsoft was faced with a leader in a new and potentially large market it desired, in this case the market for “multimedia playback.” (Whoever dreams up these names should be reassigned.) Microsoft responded, as ever, by paying a call on Apple and offering to split the market the way a sumo wrestler offers to split a pie. When that failed, Tevanian’s tale went, Microsoft set out to crush Apple’s business, using the many weapons at its disposal: bundling its own media player with Windows, excluding Apple’s media player from Windows, dragging its feet in providing Apple with APIs, and so on.
       Apple is now the France of the computer world: Once a great world power, it has been reduced by noxious outside forces to a charming nation-state fighting to preserve its distinctive flair. As Tevanian told it, the company learned that it faced another threat to its way of life in August 1997, at a meeting called by Microsoft. The Monopolists said they wished to discuss how the two companies might work together, but when they arrived they let Apple know that Microsoft planned to “kill” its new multimedia player, QuickTime. One of the Apple executives present, shocked by what he had just heard, sought to clarify what the predatory Microsoft executives had just proposed. “You mean that you want us to knife the baby?” he asked in the typically absurd hyperbole of the technogeek. “Yes,” the Microsoft hit man allegedly replied, “we’re talking about knifing the baby.”
       Needless to say (though I’ll say it anyway) the Vampire was unimpressed by the specter of babies being knifed. He attacked Tevanian–whom he called “DOCTAH Tevanian”–in exactly the same way Warden attacked the two earlier witnesses. He argued that QuickTime was still a success; he argued that Apple still sought relations with Microsoft; he presented the court with e-mails that suggested Apple and not Microsoft wished the two companies to “collaborate”; and, perhaps most interesting, he argued that Apple used as a bargaining chip the threat that it would tattle on Microsoft to the DOJ.
       And for the first hour or so the Vampire seemed to be in control. He scored points by digging out documents cited by the doctah in his direct testimony, then finding passages in them, neglected by the doctah, favorable to Microsoft’s case. The doctah did not deny having seen the documents. After all, he had cited them himself, and he was not the sort of person who was comfortable telling lies. Indeed, the doctah is the closest thing the trial has seen to a perfectly honest man, and his honesty was, at first, a weapon used against him. For a brief moment, it appeared the witness might be forced to concede that there was another side to the story of Apple and Microsoft.
       So pleased was the Vampire with his performance that, I believe, he went a bit soft. He was grateful for being presented with such a clean, well-lit neck. But then something happened, and it ruined the Vampire’s day.
       What happened, in a word, was the judge. To bolster his case, the Vampire read between the lines of Apple’s e-mails and the witness’s answers and ascribed to them meanings that perhaps were not intended. This, so far as I could tell, was merely the law taking its natural course. But this time, the judge, for reasons that were not immediately clear, took offense. He twisted and turned unhappily in his chair until finally he called a halt to the trial. “Mr. Edelman,” said the judge to the Vampire, “you keep mis-characterizing what he [the witness] told you. It’s misleading language. And it’s not acceptable to me.” This was as harsh a rebuke as the judge has ever delivered, I think.
       Soon it became clear why the judge was upset: He liked the witness. No: He BELIEVED in the witness. Tevanian was the first witness, indeed the first person to enter the courtroom, who actually understood software. To his vast credit, the Vampire avoided being buffaloed or distracted or even faintly charmed by his technical expertise. But the judge was a different matter. The great thing about the judge is that in the face of overwhelming odds he retains an almost childlike curiosity about the matters before his court. He is not afraid to ask what he knows others will think is a stupid question. And the presence of someone who could actually answer his technical questions was too much for the judge to resist.
       The judge’s first questions came in a low, faltering tone. (“Could you tell me how a … codecs … works?”) But it wasn’t an hour into the day before the judge was hitting the pause button to boom out to the witness in a jovial tone, “Let me ask you the witness this one question. From a TECHNOLOGICAL perspective …”
       And the witness would respond happily with these elegant, simple, cold explanations that inevitably cast an unflattering light on the Microsoft case.
       An hour after the judge asked his first question, the witness was delivering ALL his answers directly to the judge. The Vampire would attack with an unpleasant leading question; the witness would turn to the judge the way you might turn to a benevolent father and say, “Your Honor, that isn’t even close to the truth!” And the judge would shake his head and smile a knowing little paternal smile and call for another cold, clear explanation. The complicity between witness and judge could not have been more explicit if the judge had asked the witness to come back home with him to help him figure out what had gone wrong with his disk drive.
       At the end of the day came the moment the lawyers will look back on and say: That’s when the judge made up his mind that Microsoft was going down. Apropos of nothing, the judge turned to Tevanian and asked him a) if it helped the consumer in any way to have a browser integrated into an operating system; and b) if it was possible to extract a browser that had been built into an operating system without impairing that operating system. And after the man from Apple gave him the answers a) no and b) yes, the judge leaned back and glared at the Microsoft lawyers. We’ve seen the judge irritated. But until that moment, I don’t think, we haven’t seen him angry.