The Microsoft Trial Sept. 21, 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. She writes a weekly column for the Ottawa Citizen.

Such is the rhythm of our legal system: Something quite simple (“I want a divorce”) is made exceedingly complex (“What percentage of your income goes to the phone bills?”) only to be made too simple again ("Father gets Easter; Mother, Thanksgiving.”)

One learns this phenomenon within minutes of entering law school. Simple facts (“Angus refused to sing ‘In-a-Gadda-Da-Vida’ at the Goldstein bar mitzvah”) generate pages of abstract legal theory (“Was there a meeting of the minds about whose version he was to sing?”). Your job as law student is to distill all this down to a two-paragraph summary in case you are called upon in class. You will later boil it down to a one-sentence summary for an outline you’ll use to study for finals. The point may or may not appear in the exam.

Such expansion and contraction mean that lawyers are never quite certain how big or important things are. This is why we yell about paperclips and sleep through death-penalty cases.

The Microsoft trial has been called the antitrust trial of the latter half of this century. As have the last three antitrust trials this century. It began as a few disputed sentences in a 1994 consent decree limiting some alleged anti-competitive jiggery-pokery by Microsoft. The “six-to-eight-week trial” metastasized into a 76-day ordeal spanning 11 months with dozens of witnesses and thousands of exhibits. It might have grown even bigger, but Federal District Judge Thomas Penfield Jackson deliberately limited the number of witnesses and kinds of testimony to prevent the legal entropy that produces an O.J. trial.

When testimony ended last June, it looked for a moment as though Computing as We Know It was on the line. But things got quiet, we tried instant messaging, we maybe upgraded, and we bought orange Gap vests online.

Bill Gates gave money away.

Through August and September the case contracted even more, with each side submitting proposed findings of fact, then revised versions of same, each of which told a condensed version of their story from trial. The government said Microsoft used its monopoly power in the operating systems market to bully and threaten its way into dominance over the browser market. Microsoft argued that it acted competitively in a competitive market, that distribution channels for competitors were never foreclosed, and that consumers have not been harmed.

“More paperclips!”

Today, with two and a half hours allocated to each side for closing arguments, the case contracts once again until it is virtually dancing on the head of the pin. Except for the venue–proceedings moved upstairs to a vast courtroom in the U.S. District Courthouse where we sit under the watchful statue eyes of Moses, Justinian, Hammurabi, and Solon–little has changed. Except the lawyers have traded their fine brushes for broad ones–paint rollers, perhaps–and the Microsoft case appears even smaller than it did before.

The Justice Department’s outside counsel David Boies, who cross-examined some of Microsoft’s star witnesses into sweaty little ribbons at trial, simply hands out his outline to the class. He spends the morning walking us through the elements of antitrust law and offering evidence from the record to support his claims. This man who virtually commanded the small courtroom downstairs during trial, seems somewhat diminished today. But he makes his points: Microsoft has monopoly power for operating systems; Microsoft maintained its operating system monopoly through anti-competitive practices; Microsoft used that monopoly to try to monopolize the browser market; Microsoft engaged in contracts and conspiracies in restraint of trade.

Microsoft’s John Warden takes a different tack. Speaking as though his mouth is full of aquarium gravel, he paints everything larger than it is. His job is simple: He must punch holes into the government’s soft places. He does not use an outline. He simply begins to roar. The government has never, ever proved that their browser and operating systems are separable. (Whether they were designed to be inseparable he leaves for another day). In swinging away at the government’s weak spots (market definition, harm to consumer, Netscape’s market penetration), Warden employs the kind of hyperbole usually reserved for domestic fights about who does the dishes. “The government has offered no evidence”; “Professor Fisher offered no analysis”; “Microsoft has never induced an OEM to drop their competitors’ products.”

(“But Mr. Warden, we saw the contracts …”)

“Never!” he roars. “Baloney,” he sputters. At some point he coughs so hard that someone at the DOJ table hands him a cough drop. “Games and shams,” he snarls. When he concludes, it is with an ominous reference to central planning. As Boies rises for his half-hour rebuttal, you can almost hear the drumbeats from Red Square.

David Boies immediately agrees. Central planning is bad. The balalaikas recede. Then he whips out his outline. He focuses narrowly, perhaps too much so: The consumer has been harmed; Microsoft did what they did not to sell more copies of Windows, but rather, to stop their competitors. Now we are all dancing on the head of a pin.

The trial ends without fanfare. Judge Jackson pounds his gavel and leaves the massive courtroom. Now he will reduce these thousands of facts to an even smaller opinion. In the interim, technologies will change and change again. When the dust settles, if it ever settles, all of this will stand for something very great in the casebooks and the exam papers.

Unless it stands for something very small.

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