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The Microsoft Trial

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from: Timothy Noah

Posted Tuesday, Dec. 8, 1998, at 10:30 PM ET
The author's version of Farber's diagram

       Timothy Noah is one of the writers of Slate's "Chatterbox" column.

Day 27 of the Trial

       "Elmer Fudd in cyberspace?" reads the folded message passed to me this afternoon by a fellow reporter at the Microsoft trial. (We're a merry band.) "No," I scribble back, first glancing up furtively to see whether Judge Thomas Penfield Jackson can see that the press corps is misbehaving. "Dean Jagger (remember him? character actor)."
       We're trying to get a fix on today's witness, David J. Farber, the Alfred Fitler Moore Professor of Telecommunication Systems at the Moore School of Engineering of the University of Pennsylvania. (I'll stop there, though Farber's résumé, at 19 pages, runs longer than his written expert testimony, a mere 15.) Farber has been called by the Justice Department to buttress its claim that operating systems and browsers represent two separate entities. Like Elmer Fudd, Farber has a tendency to turn his R's into W's" But physically, as I told my colleague, he looks more like Dean Jagger, and he talks a bit like him, too.
       Cross-examination of Farber falls to Steven Holley of Sullivan & Cromwell's Microsoft team. I can't remember how my distinguished predecessors described Holley, but he strikes me as a killer. "The first draft [of your testimony] was written for you by Justice Department lawyers, is that correct?" Holley asks. Farber denies it. "I received a draft prepared by, I assume, people in the Justice Department," he concedes, but "I extensively changed it to reflect my opinion and my style of writing." (Apparently this has come up before with other government witnesses.) After Farber stops talking, his mouth keeps moving up and down; I can't tell if this is a nervous tic or if his bridgework is coming loose.
       Holley's questions are all highly technical variations on "Who the hell are you to say that the Windows 98 operating system is separate and distinct from Internet Explorer?" Farber's basic worldview seems to be that consumers should have lots of choices and be able to customize their software in all sorts of ways. Holley's basic worldview seems to be that if you start monkeying around with Windows 98, then nobody's computers are going to work and Microsoft is going to have a lot of irate customers on its hands. It seems strange that Microsoft's defense in an antitrust case is that the world can no longer be run without being dominated by Microsoft. If that's true, shouldn't it be the source of some alarm? I look around the courtroom and count eight computers--three laptops, five desktops--divided among the Microsoft team, the Justice Department team, and the officers of the court. The Justice Department computers run Windows; so, I assume, do the court's; and so, we must assume, do the Microsoft lawyers'.
       Farber has scribbled a diagram of Windows 98 that, improbably, has been entered into evidence. We are looking at it on screens and TV monitors scattered around the courtroom. I don't have the original, but here's basically what it looks like (if anything, my version isn't quite as messy as Farber's):

      The oval at the top is Internet Explorer. The three boxes below, which Farber initially referred to as "shared modules" before crossing out "modules" and scribbling in "DLL," are the Windows 98 operating system. Holley sets to work making fun of the diagram. "You have no idea what's in the oval marked 'Internet Explorer,' " Holley says. (He actually says it more than once, and eventually an irritated Jackson says, "I think you said that several times.") Farber explains that if he'd been permitted to see the design of Windows 98 in detail, he'd have had to sign a nondisclosure agreement. It's an interesting paradox: You can know what's in Windows 98 or you can say what's in Windows 98, but you can't do both. Farber's position is that he has a decent idea of what's in Windows 98, based, in part, on testimony in this case from a Microsoft witness. But Holley hammers away at Farber and gets him to concede that there are some functions that are shared between the rectangles (operating system) and the oval (browser). It's a Jesuitical and largely incomprehensible technical argument that is clearly not going to be resolved today. I wonder whether the trial will resolve it at all.

Click here for MSNBC's full coverage of trial developments.

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from: Timothy Noah

Posted Tuesday, Dec. 8, 1998, at 10:30 PM ET
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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.
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