U.S. District Judge Thomas Penfield Jackson, who resembles a wizened and white-haired baseball manager, was barely winning a midafternoon tussle with tedium, checking his wall clock and listening to such stirring acronyms as “OEMs,” “ICPs” and “ISVs.”
His head jerked back, then forward as he avoided slumber. I sympathized, feeling likewise and fitfully realizing that the languor around us belied the stakes of the surrounding conflict.
The much-advertised, supposedly historic matter of United States of America vs. Microsoft Corp. began last week on Jackson’s home field, a setting surely galling to the defendant’s billionaire chieftain and a legion of Silicon Valley acolytes and even rivals.
Bill Gates and the techie pack tend to be fiercely libertarian–hating government intrusion into their own, if not competitors’, affairs–and this setting is a wood-paneled and muggy symbol of the Old World and legalisms they hate.
Yes, scads of dark-suited, humorless federal lawyers were trying to disrupt a free, unfettered market and innovation as quaint courtroom artists, not Web page designers, scribbled nearby. All so retro, all so beholden to structure and tradition. Light years from Silicon Valley, where sunlight and freedom reign and executives, according to the early evidence, use e-mail more often than Linda Tripp and Monica Lewinsky.
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The G-men and women contend that, whether you have a clue about Original Equipment Manufacturers (OEMs), Internet Content Providers (ICPs) or Independent Software Vendors (ISVs), Microsoft is a monopoly that has tried to crush competitors; for example, in the market for browsers, the gizmo that lets you cruise the Internet.
Microsoft says folderol, it’s a victim of success and a Justice Department with a tattered case in search of a theory. After the first week, it would be foolish to place heavy bets on either.
But like any heavyweight championship, this elicits an A-list crowd of reporters who pack the courtroom and makes for strange companions as media outlets are forced to share courtroom passes. Thus, the Tribune shares with a Seattle television station owned by a Dallas company.
It’s a generally youthful crowd, as I was reminded in noting to several that the courtroom directly across from Jackson’s is that of Judge Harold Greene, who broke up AT&T. The gratitude voiced over this revelation was somewhat patronizing, as if I were a doddering uncle with gravy stains on his tie at Thanksgiving dinner.
All the networks are here, as well as The New Yorker and Fortune magazine and British, French and Japanese newspapers. A new on-line magazine, Salon, the one that disclosed Illinois Rep. Henry Hyde’s extramarital affair, is also here, in the presence of journalist-author Michael (“Liar’s Poker”) Lewis.
The star opening witness for the government was James Barksdale, who looks like a paunchier Jimmy Stewart. He began his career as an IBM salesman and rose through the ranks at Federal Express. He’s now boss of Netscape, a browser giant that alleges Microsoft tried to muscle out Netscape’s product but not before offering to split the market in the same way the Mafia might divide garbage collection in the Bronx and Brooklyn.
Barksdale professed to be shocked, almost like Stewart in “Mr. Smith Goes to Washington,” although Barksdale’s chagrin seemed more with the terms of the proposal than with the mere theory of divvying up the goodies. It’s the same, at-times-ambiguous view of regulation found among certain phone, cable and broadcast companies, who love government strictures on competitors, not on themselves.
Thus, as I watched Barksdale rhetorically fencing with Microsoft’s very old guard New York attorney John Warden (of the white shoe firm of Sullivan & Cromwell), I wondered how Barksdale might have responded if Don Corleone Gates had sweetened the pot. Might he be sitting on the opposite side of the room, as a defendant in the same antitrust action?
The trial will be so rife with technical chatter, and involve so many witnesses, that the judge suggested a gambit meant to economize. Testimony of the government’s witnesses is presented in prepackaged, written form, meaning the trial has started with the defense’s questioning, based on testimony it already has read.
It’s laborious, with the broad-shouldered Warden firmly grabbing hold of the lectern, the written testimony before him, and interrogating paragraph by paragraph in a bass occasionally laced with skepticism turned to condescension.
When the Microsoft crowd discussed drawing “a line” between them and Netscape in the browser market, was that really an onerous warning, Warden asked. Yessiree, said Barksdale. Warden clearly believes we’re talking about mere semantic differences between the witness and his deep-pockets client.
If you read many of the first week’s accounts, you may assume this is a case about browsers. And, for sure, first witness Barksdale’s grievance is all about that topic.
Imagine turning on your television and, as soon as you hit the power button, the first channel to appear is CNN or superstation WGN. It’s a bit like the situation with Microsoft. You’ve got their operating system and, bingo, there’s the icon for its browser.
Just as you can switch to any channel, you can obviously go out and get another browser. But the mere fact it’s there is an undeniable competitive advantage. If advertisers all knew your television would instantly bring up CNN, don’t you think CNN just might be beneficiary of a fair amount of their marketing dollars?
Still, if the government is to win, it will have to prove a pattern and practice, denigrating Microsoft less for achieving a monopoly (nothing inherently illegal in that) than for how it has used its power.
It’s why the biggest hitters in the industry, including Intel, Apple and America Online, will all testify, presumably to suggest the many ways Microsoft has allegedly squeezed them and others.
“Gates is tough, no question,” said Chicago attorney Howard Trienens, whose firm Sidley & Austin is Illinois counsel for Microsoft.
The choice of Trienens is fitting, if only because he was longtime general counsel for AT&T and lived through the fiercely fought, government-forced dismantling of the phone giant. So at least he knows about Judge Greene.
He refers to William Baxter, former head of the Justice Department’s antitrust division, who had a “surgical view of the problem” in the AT&T case: separate and local operating firms and the long-distance unit. He also was someone “who had the guts” to drop the government’s antitrust case against IBM, said Trienens.
Is there a crisp, clean way out? Some suggest there is, namely in drawing a line between hawking operating systems and browsers.
“The technology is new and wonderful and has the potential of making our lives better,” said Microsoft critic Jim Tierney, former attorney general for the state of Maine who represents Sabre Inc., the on-line reservation system. “But it will only work if one has a choice. The very nature of monopolies is to deny people choices.”
“This case will decide if there is any law in the cyberworld,” said Tierney. “If Microsoft can do what it does, it will be the Wild West. The goal of this case is to assure that everybody has a choice. This is how we will pay our bills, plan our vacations, talk to our kids and parents. There has to be a choice as to how we will do this.”
Of course, that notion might be lost on the Silicon Valley libertarians. Many are, after all, from a different generation.
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At one point, Microsoft’s Warden was quizzing Barksdale about a particular Netscape document. Barksdale said a point in the document, which contradicted Barksdale’s overall thesis, was wrong and surely reflected the youth of the writer.
Since Barksdale didn’t know the writer, Warden wondered how he assumed he was young.
“All the people who work for us are very young,” said Barksdale, 55, with a certain, Old World chagrin. His testimony continues Monday.