The Microsoft Trial June 22, 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.

Oh God.

I’ve figured it out.

This is all about religion, isn’t it?

But first, the trial:

This morning, by prior agreement, the Justice and Microsoft lawyers read into the record excepts from the America Online documents with which Microsoft examined AOL’s very hostile hostile witness, David Colburn, last week. (As an aside, no one ever reads the little sideways smiley-faces into the record. Why is that?) Perhaps unsurprisingly, the Justice lawyers read principally those sentences that begin: “The Microsoft bastards are oppressing us beyond all endurance,” while the Microsoft lawyers read the other sentences–the ones about “we shall rise up and band together with Netscape and Sun and break free from the tyrannical grip of the vile oppressor to someday [insert maniacal laughter here] conquer the wooooorld!”

We break at 11 for a long lunch. In the press room, I overhear a colleague bemoaning the flood of hearsay evidence admitted in this trial. (At some point this morning, Judge Thomas Penfield Jackson asks John Warden of Microsoft, “Do we know when this document was created and by whom and in what context?” Warden replies with a long sentence that is Sullivan & Cromwell code for “no.” Nevertheless, the document is on the record as something from sometime by someone at AOL. We think.) I laugh, recalling a time when I, too, was young and naive and shocked by the hearsay evidence in this case.

This afternoon is another leg of the desolate slog through the Siberian tundra of market shares and arcane definitions of predation (one of the DOJ claims in this trial). At some point, someone behind me passes up a note that says “Judge Jackson. We need a lead please. The press.” Nothing is happening except that Microsoft’s final rebuttal witness, Dean Richard Schmalensee of the Sloan School of Management at MIT, is making funny faces. Sullivan & Cromwell’s Michael Lacovara will ask him how some of Microsoft’s teeny weeny rivals are doing. Schmalensee will screw up his Basil Rathbone face into something approximating rapture as he enthuses about how well Linux is doing (“big investors”) or about the future of the “open source movement” (“fascinating, fascinating”). He seems more concerned about calibrating the correct balance of euphoria and academic dispassion on his face, than he is with the substance of his answer.

And now on to God. It finally hit me today in the hard wooden pews of Judge Jackson’s courtroom that this trial is a battle between church and state. Not just because we dress up in nice suits and make offers of proof to a man in black robes seated way up high on a dais. And not just because we swear on the Bible and not just because we are constantly standing up and sitting down and not because we intermittently go out into the hallway to gossip and misbehave. This trial is about religion and if you don’t believe me, consider the language in the documents and testimony over the past few weeks:

· “how religious is our support of Smart Suite?” (internal Microsoft e-mail)· “blessed through the enabling programs …” (testimony of IBM executive Garry Norris)· “the Java religion coming out of the software group is a real problem” (Gates memo to staff)· “this also demonstrates our agnostic approach to operating systems” (AOL e-mail)· “products anointed by Microsoft” (Gordon Eubanks’ testimony on cross)· the rhetoric of “evangelizing” that has pervaded this trial

Consider this insight from my smart friend Liam: It is the millennium and our greatest fear is not the wrath of God but of our computers crashing; angels put up seed money for startup companies and daemons run in the background of other processes; while the word for changing among file formats is conversion; and Easter eggs are little surprises hidden in software programs.

I have been a religious person all my life and perhaps for this reason my roommate says I am too readily converted to a “pod person” hatched in a Microsoft lab. I really do believe. It is so easy to celebrate the ease and efficiency of a world that’s all Microsoft, all the time. Finally, we are all communicating. No more ugly bickering (Microsoft/Apple/Catholic/Protestant …). We all see the same light at the same time.

The evangelical language is no accident. Microsoft is a secular church and Microsoft is on a crusade. Microsoft is impelled by the genuine conviction that in bringing its beliefs to the masses, it is saving us. Microsoft generally and Bill Gates in particular are zealots dedicated to bringing the whole world under the white wings of salvation. What other image can there be than that of a Holy Roman Empire, terrorized by even a shard of disbelief and responding to insignificant competitors with swift and brutal retribution? To any church, heresy–even minor heresy–can spread like a cancer. Because only a true religion understands that there is no room for competition in the battle for Salvation, Microsoft has brought to bear a whole panoply of good old fashioned religious remedies on its competitors: excommunication, denouncements, a few scattered stake-burnings, to stop them from leaving the fold.

A picture of Bill Gates has emerged in this trial as the angry, jealous God of the Old Testament. He finds out in South America that IBM preloaded Lotus Smart Suite and goes ballistic because he was not consulted (we have seen the e-mails). Why, asks my colleague from CNBC, is it that Gates–while he permeates every part of this trial–has only ever been seen as an apparition, on videotape through a million bits of light and pixels? A burning bush for the ‘90s?

When trying their witches, the Puritans came up with a nifty little lose-lose program that Judge Jackson might want to adapt for his Findings of Fact and Conclusions of Law. Microsoft can be dunked in a tub of water. If it floats, it was monopolist and gets taken out and destroyed. If it sinks, it was just super-competitive and too bad it died. Or maybe the Judge can just wait for the millennium and let Microsoft be broken up by powers from above.

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