With one Trial of the Century over, it was time to head back to the other. Within minutes, I was sentimental for Rep. Henry Hyde and his bowling team of failed prosecutors.
“In order to comply with the MS-Compaq Internet/Intranet MOU, CSBU would have to significantly alter the current Predator product, revise its business model and jeopardize two profitable, revenue generating contracts,” read the supposedly dramatic document placed on a television monitor before me and others Friday afternoon.
Welcome back to the other Trial of the Century, where mention of Monica, Vernon and Betty is supplanted by the inspiring, equally repetitive mentions of OEMs (Original Equipment Manufacturers), ICPs (Internet Content Providers) and ISVs (Independent Software Vendors).
Yes, amble a few blocks from the Capitol and find the federal courthouse where the United States of America v. Microsoft Corp. has been playing out for months. It’s a tale of a real stalker, namely Microsoft, and has months to go.
“Yeah, a real trial,” said a still-chagrined David Schippers, Hyde’s chief impeachment attorney, now back in his Chicago office, when I talked to him by phone Friday.
A real trial, yes, with a clear burden of proof, rules of evidence, lots of live witnesses, a passable judge straining to stay awake, and nobody but nobody alluding to the dead at Normandy or quoting the Founding Fathers, Abe Lincoln, Arthur Schlesinger Jr. or Ernie Banks (yes, Ernie was cited during the other trial).
Microsoft stands accused of trying to crush its competition. One vivid claim involves browsers, the gizmo that lets us cruise the Internet. Netscape, a big browser maker, whined to the government about Microsoft illegally seeking to turn it into corporate ash, while Microsoft says Netscape is a big crybaby and Bill Gates is merely a victim of his aggressive genius.
I had been away from the trial so long, the government had completed its case and was now defending, though you wouldn’t know it from press accounts.
According to those, chief government lawyer David Boies, an inescapably precise, cool and impressive litigator, still had the software behemoth on the run even as Microsoft counterattacked. The Microsoft effort, conceded a “confidential” memo to clients from the broker Salomon Smith Barney, “does not play well with the press” (such insight from Wall Street!).
Upon return, I briefly thought I had entered the wrong courtroom. In the witness box was a guy who resembled a square-jawed, dark-suited, humorless cross between the late Jimmy Hoffa and the late comic Jackie Vernon (with black, slicked-back hair, no less, recalling what was known in the 1950s as a “D.A.” because it resembled the derriere of a duck).
In fact, it was John Rose, a high-ranking executive of Compaq Computer Corp., who was a key go-between in dealing with Microsoft.
Now, Rose was not just one of Microsoft’s first defense witnesses but also one of the few who doesn’t work for Microsoft. Nevertheless, he and his Microsoft handlers were having a tough time with Boies, a well-known private attorney hired by the Justice Department for this one matter.
The government suggests that big, bad Microsoft sought to stick it to Compaq, chagrined with Compaq playing footsie with Netscape. Microsoft allegedly went so far as to very directly threaten Compaq with no longer selling it the potent Windows operating system unless it said “adios” to Netscape, a disputed event which prompted Netscape’s boss to go scurrying to the government for shelter.
Rose seemed rather smug during his two days on the stand, occasionally looking about with a theatrical air after responding to a question, as if we were his sold-out audience. His only moments of unease came when Boies confronted him with ambiguous documents from the files of Microsoft.
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One was an e-mail from Gates himself, telling colleagues about a personal visit he’d made to Compaq and mentioning having thanked Rose “for all of his trips to Seattle and his willingness to distract a lot of time for the lawsuit.”
Interesting, especially since it flatly contradicted Rose’s own testimony about not talking to anyone at Microsoft about the case.
“I think he’s just making a comment there,” Rose said. “I never discussed the case with him.”
If that was underwhelming, it paled by comparison to the earlier act of seeming self-immolation performed by Microsoft in beginning its defense two weeks earlier. That involved botching a video demonstration and raising the possibility of doctoring its own evidence. Its bumbling only heightened a sense of Boies’ adroit ways.
It does not hurt that both Boies and the Microsoft defense team, sensitive to the demands of television, make sure to pop outside the courthouse during the lunch break and at day’s end to answer questions for cameras barred inside.
Boies cuts an unassuming figure and is willing to occasionally concede that a particular witness, or evidence, of his wasn’t all that hot. Even with the significant public-relations resources Microsoft has marshalled, nothing has been quite as effective as Boies’ cunning inside and understatement outside.
Reporters like him, in a way that they don’t like the Microsoft team, which includes a top Gates aide-de-camp, Tod Nielsen, who seems to have a cell phone surgically implanted in one ear when found in the hallway during breaks.
The journalistic cognoscenti assume this is the Silicon Valley hot line, perhaps right to Gates’ palatial bedroom in that $60 million, 20,000-square-foot residence. But, being as close to the case as they are, some may be missing the forest for the redwoods.
It’s an occupational hazard, especially in covering trials and being immersed in every incremental twist and turn. A day like Friday was especially daunting for the newsies who have lived this case for months, as each side was hurling seemingly contradictory evidence, mostly in the form of e-mails and snatches of pre-trial depositions of various executives.
Did or did not the Microsoft threat of ditching a big contract with Compaq have to do with Compaq’s relations with Netscape and use of its Navigator browser? “It had nothing to do with Netscape Navigator,” testified Rose.
But other documents raised doubts sufficient to leave reporters shaking their heads at Friday’s end. “What’s our lede out of all this?” one asked another, journalese for, “What the hell is the story?”
Of course, there would soon be Boies and his counterpart, Microsoft general counsel William Neukom, to goad into something more definitive. As usual, Boies would likely get the long end of the stick.
Even the business press, including the Wall Street Journal and Fortune magazine, have emoted over the government and Boies. “As Microsoft Struggles With Antitrust Case, Tactical Errors Emerge” declared a Journal page 1 headline last Thursday, topping a story replete with the now-requisite, mind-reading assumption that the judge has turned wary of Microsoft.
Alas, it may be a fair depiction of the surface. But what about the legal substance and the judge’s ultimate decision?
For sure, one can stipulate to Boies’ head-turning performance, and clear suggestions of Microsoft coercion. But that may still be a far cry from proving antitrust, of a firm illegally using monopoly power (remember, it’s not per se illegal to be King of the Hill) and harming consumers.
Rose, the Hoffa look-alike, may have stumbled into the nub of the matter when alluding to Compaq’s use of Windows as an operating system.
“Consumers demand Windows,” he said.
It’s a sentiment one should keep in mind before jumping to the conclusion that Microsoft, for all its slimy dealings with competitors and occasional courtroom battles with the truth, will fare no better than Henry Hyde’s band of renown did up the street.
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James Warren and Michael Tackett of the Tribune’s Washington bureau are hosts of “Unconventional Wisdom” at 7:05 p.m. Sunday on WGN-AM 720.