The Microsoft Trial June 10, 1999

Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children.

The Microsoft trial is searching for a metaphor. Because no computer program has yet managed to craft one, it has fallen upon the lawyers and witnesses to generate something. As with all human endeavors, the results are both clever and flawed. I’ve heard one comparing Windows 95 to a library and Internet Explorer to the card catalog. Didn’t work. I’ve heard an extended metaphor that had to do with the Lincoln Tunnel and corrupt taxi drivers. Didn’t work. Today, both Justice and Microsoft rummage through the produce in search of a better one.

A central issue to be decided by Judge Thomas Penfield Jackson in this case is whether Microsoft impermissibly tied its browser, Internet Explorer (IE), to its Windows operating system. That question turns on whether Windows and IE are severable or “integrated” systems. Microsoft asserts that the two products are linked too inextricably to be unbundled. The Justice Department says Microsoft can easily remove its browser from Windows and chose not to do so for anti-competitive reasons. Dr. Edward Felten, a professor of computer science from Princeton University, testified in December not only that the two products are severable but also that he had developed a prototype program to remove IE from Windows 98. Today, testifying as the third and final rebuttal witness for the government, Felten re-emphasized and expanded on the point that the two products are readily “unbundled” and described new tests he’s run indicating that removing IE from Windows 98 actually benefits consumers (remember them?) by improving the speed and memory of one’s computer.

Dr. Felten is not merely a computer scientist. He is also a computer. He is paler than the marble ceiling of Judge Jackson’s courtroom. Showing no sign of human affect, he responds both to this morning’s direct examination by Justice’s Steve Holtzman, and to this afternoon’s cross-exam by Sullivan & Cromwell’s Steven Holley, with the speed and memory of a machine–a machine unbundled from its cumbersome browser. Felten anticipates and answers questions almost before they are finished. His answer to each appears to be perfect. He replies in numbered points. He refers to no notes. He races through lists of APIs, DLLs, HTMLs, without a blink, although he approximates a smile when he informs Judge Jackson that a SHLWAPI.DLL is indeed pronounced Shillwapee.

Felten makes the same point in myriad ways and he makes it well: Microsoft can remove IE without harming Windows 98 and with some advantage to the customer. The advantage, he stresses, is “choice.” Felten is liberal with the rhetoric of both “choice” and “force.” He says several times that the customer should not be “forced to take particular software products.” The judge responds well to him, leaning down to ask whether some consumers might not want to forgo having a browser altogether due to “security issues.” Felten agrees. Choice again. His computer brain points out that Microsoft often conflates “integration,” meaning that their products work well together, with “integration,” meaning that products are inseparable.

Then, Felten searches for a metaphor. Since he hasn’t been programmed to do that, he borrows one from the earlier testimony of one of Microsoft’s witnesses, which likened Microsoft products to a grocery bag. “The fact that [Microsoft has] both ice cream and carrots in the same bag, doesn’t mean that they are related in any way.”

Late this morning, DOJ’s Holtzman pulls a “mini Pepperman,” named after yesterday’s lunch fiasco. At 11:10, Judge Jackson, who has been following every word of Felten’s testimony with 110 percent attention, looks down over his glasses and asks Holtzman if it is time for a break. Holtzman, all shoulder blades and elbows, politely asks for five more minutes. All the DOJ lawyers drop their heads into their hands. All the heads begin to shake to and fro. Holtzman forges on through another 30 seconds of testimony. The judge’s eyes have gone to that screensaver with the rocketing stars and planets. Someone hands Holtzman a pink Post-It. He glances at it and calls for a break. Sometimes even the Big Boys forget he’s called “Judge” for a reason.

At the lunchtime spinoff, I talk to Mark Murray, a PR representative from Microsoft who bears an eerie resemblance to James Woods, but only from the side. He offers a more interesting metaphor. He talks of convenience. He says that if all machines have all the same building blocks in place, it’s much easier for developers to ship and for consumers to download new products without having to mess with the whole API again. Likening Microsoft’s operating system to a pantry, he says the government (except he capitalizes the G …) wants to create a world in which if you want pad Thai you need to go to one place for the rice noodles, then all the way to another place for the vegetables, and then … Zounds. It sounds like Stalingrad.

The rest of Felten’s direct testimony after lunch goes to his research showing that the effect of removing IE is not, as Microsoft has insisted, a decrease in the performance of Windows, but rather a net improvement. Steven Holley, representing Microsoft, rises to begin the cross-examination. Dr. Felten does not pale perceptibly, but then I cannot imagine that he could. Holley begins to question Felten on the testimony of other Microsoft witnesses. Felten blandly refuses to answer questions without being given a transcript of their testimony. Holley refuses. Felten insists. Calmly. Holley asks if there is any reason “other than causing me difficulty, why you need to see the transcript.” Felten, Vulcanlike, insists that he will not answer questions without first reading the testimony in context. The judge agrees with Felten. Holley abandons the line of questions.

Holley asks whether Felten’s prototype removal program works. Felten insists that he has “valid proof of concept.” For Holley, this is not a yes. I’m not sure he understands that for a computer, valid proof of concept is all that matters.

On the business of corrections, I’ve got two: I was almost sacked this morning by the DOJ dugout, all of whose members wanted me to know that one woman attorney has spoken in this trial and she was their own Denise DeMory, who led one of their technical experts through his direct. I stand corrected. Also, DOJ’s outside counsel, David Boies, reacting to yesterday’s comments about the testosterone levels of the average antitrust attorney, introduced me today to his wife, who is herself an antitrust attorney. She is neither macho nor aggressive, and she looks like she would lose miserably if called on to anchor the Sigma Nu kegsuck. I stand corrected.

Since Judge Jackson does not hold Microsoft trials on Fridays, we might all usefully spend tomorrow building a better metaphor. I am open to suggestions.

Click here   for dispatches from the last session of the Microsoft trial between October 1998 and February 1999.