The Microsoft Trial June 3, 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.

Chris Crook is the chief of the Antitrust Division for the San Francisco branch of the Department of Justice. He has that lanky, interior quality that distinguishes West Coast lawyers from East Coast lawyers. This morning, we chatted a little in the hallway before trial and he told me you just don’t often get a permanent press corps for a civil trial. The folks in the hard wooden benches on the left-hand side of the courtroom have mostly been here since October. And this is no O.J. trial. Everyone’s sticking it out day after day not because market shares and download ratios make riveting copy, but because this is a massively important trial for a million reasons that don’t always make good copy.

Today I watched Microsoft’s lawyer, Michael Lacovara, finish his cross-examination of the main Justice Department economist, Franklin Fisher. Fisher, who looks like Colonel Potter from M*A*S*H, cracked us up with his testimony yesterday. He wasn’t so funny today. He looked, in fact, as if perhaps the econometrics of it all was starting to get to him too. The reporter from the German press left the courthouse after 42 minutes. Even if you paste them up against pretty blue backgrounds and flash them up on massive television monitors, charts, it would seem, is still charts.

The “story” today lay in the numbers, specifically some top-secret Goldman, Sachs numbers from a due-diligence report done last fall before Netscape was purchased by America Online. The numbers are between 22 percent and 24 percent and they essentially show Netscape’s penetration into the Internet service provider market to be far higher than James Barksdale, the CEO of Netscape, suggested in his testimony last October.

Lacovara also confronted Dr. Fisher with numbers showing that Netscape was averaging a heck of a lot of downloads per month for a coerced, oppressed, and beset little operation. The Netscape documents showed consumers downloading approximately 160 million copies of Navigator each year. According to the calculations done by a reporter in front of me with more agile finger-math skills, it appears that according to Netscape, you and I each downloaded Navigator one and a half times last year. And I know I didn’t. So that means someone out there did it three times.

“The numbers,” Lacovara announced at the break before lunch, “say it all.” He did well both on cross and sound bite this morning, claiming that the numbers show that “there is no credible evidence of foreclosure in this case.” I had to leave at 3 to file this and so missed the first part of David “Don’t Mention the Suits” Boies’ redirect of Fisher, which should take us into next week.

Of course the Real Story taking place under all the Microsoft numbers was happening directly to my left in the press section, and on benches so brutally painful they can only have come from the Marquis de Sade’s rumpus room. The news was this: Elliot of MSNBC Online came back from the morning break with fistfuls of Pez dispensers in his knapsack. These, he hissed to the clutch of newsmen around me, are second-edition Star Wars Pez dispensers. This created the day’s first little ripple of excitement since the Pez dispensers are newly released and because, said Elliot, “Pez never does real people.”

“Geek Heaven,” whispered a journalist in front of me. I realized suddenly that I was sitting smack in that scary central place in the Venn diagram where the circles of lawyers, computer nerds, and writers overlap. Throughout the colloquy going on between Fisher and Lacovara at the front of the courtroom concerning the monthly downloads of Netscape, Elliot downloaded orange Pez into Luke Skywalker.

There is a chasm widening between the two sides in this case, and it is more temporal than philosophical. Microsoft’s posture in this trial (and certainly dominating this rebuttal phase) is almost exclusively future-focused. The Microsoft team has clambered up the mast and peered out from the crow’s-nest and sighted the future. And the future, they tell us, is Netscape. It is Corel developing a Linux desktop interface. The future is in PC substitutes such as game machines, smart handheld devices, and Internet screen-phones. And that future, they tell us, will not be dominated by Microsoft. (Well, OK, it won’t except for when it will be dominated, says Bill Gates in his Newsweek article of last week, “Why the P.C. Will Not Die.” But then Microsoft has been caught up between the horns of its “sky is falling” defense and its “we rock” spin campaign from the very start of the trial.)

But while Microsoft looks to the future and to all the new technologies that threaten to render the company obsolete before we even wrap up this trial, the government has climbed up the same mast and chosen to face squarely backward, looking to the past, correcting for old wrongs. And so a witness like Dr. Fisher, while being shelled with questions about the future of Netscape or of something called a “consumer N.C. client,” can simply and truthfully reply that future technologies are irrelevant to this trial since they have nothing to do with whether Microsoft engaged in the acts of predation, exclusion, and coercion that form the basis of this complaint. This is not only a prospective lawsuit. This case is about behaviors in which Microsoft engaged back before Corel started developing a Linux desktop interface (whatever one of those might be). This case is about old e-mails, old threats, and old punishments meted out back when Microsoft may well have been the biggest bully in the sandbox. And all the smoke and mirrors and handheld-whatevers shouldn’t be distracting us from the fact that this trial is about whether or not Microsoft did something wrong.

There’s a whisper going round that all this future-focus is not so much about the issue of liability, and very much about the award of damages that Judge Jackson will have broad discretion to craft should he decide that Microsoft did indeed do wrong. That would make this bleak look down the barrel of Microsoft’s future sort of like the sentencing phase of a capital punishment trial. This is where the defense team, having claimed that Murderer Bob didn’t do it, didn’t do it, didn’t do it, and lost, must turn around and argue that well-yes-he-did-it-but-it-wasn’t-all-that-brutal. So, too, Microsoft may be trying to tell the judge that even if we did do it, we won’t be able to do it anymore so go easy on the remedy please Sir.

It does make for a weird trial, though. I am downloading for you the mental picture of Microsoft and the Justice Department, strapped back-to-back to the same mast, like the two heads of Janus–one looking forward and the other looking back. Tossing out witnesses and arguments and evidence in opposite directions, the two sides keep trying to make one another see things their own way. And they never seem to acknowledge that they’re fighting different wars.

Click here   for previous dispatches from the Microsoft trial.