Microsoft's Maritz unsure how many APIs in Windows

'Couple of thousand -- I guess'

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Microsoft has two mastiffs: president Steve Ballmer and group VP Paul Maritz, who looks after platforms and applications. Mastiff Ballmer will not appear at the trial, mostly because he doesn't have any significant technical knowledge, but mastiff Maritz was the first Microsoft employee to face cross-examination in court. Whether Maritz spent sometime at witness school, or only had time for a briefing from Microsoft lawyers is not at present known, but there is some evidence of some common responses by Bill Gates, Richard Schmalensee (Microsoft's expert witness on encomonics) and Maritz to lines of questioning by the DoJ's chief trial lawyer, David Boies. Slight variants of the phrase 'I don't recall specific receipt of it, but I have no reason to believe I did not receive it' are familiar from the Gates' deposition. There were echoes of the days when IBM was under antitrust examination, since Maritz admitted that certain meetings took place with a lawyer present. Boies had his approach well thought out. He first worked without a document, to get some kind of statement in response to a line of questioning, and then produced any document that controverted the response. He managed to expose a number of significant differences between what Maritz had said when he was deposed, in his written testimony, and in his cross-examination. Most noticeable is Maritz' hardening of attitude, and a memory that manages to lapse at convenient moments. There are several instances where the differences between Maritz' responses on oath and other evidence are in direct conflict. Maritz' approach to Boies' questions was not to answer them, but to make some neutral remarks. Many times he was admonished by Boies. Maritz was questioned about Windows 9x revenues, and put them at about $3 billion, but declined to provide a profit figure although he claimed about $1 billion per year for R&D and marketing. Microsoft still has these funny accounting practices, it seems: not much in the way of accounting books, but perhaps this is better than two sets. Boies posed many unproductive questions about the threat posed by other platforms. It was uphill work nearly all the way. There is every reason to suppose that Microsoft was paranoid about the competitive threat of Netscape and Java, since the executive worriers knew the truth about the quality of Microsoft software. Maritz proved himself able to turn any question about Microsoft's anticompetitive practices into a Microsoft perspective of working only on its own products, and not deliberately harming anybody. Maritz denied that the corrected version of his written testimony had changed the paragraph numbering, but sure enough, Microsoft Word had triumphed again and the paragraph numbering was out-of-step in the court room. It is clear that Maritz did not write his written testimony. It is lawyer talk, and covers areas about which Maritz is not informed. Maritz admitted at various stages that people had helped him in preparing for his appearance. Maritz said he had been given "a whole stack of documents, hundreds of pages -- maybe over a thousand pages of stuff to read". The man in charge of Windows said he did not know how many APIs Windows had. His guess was a couple of thousand. How modest. Maritz sparred with Boies over the legal definitions of market and market share, but little was given away. He was smart enough to avoid the chasm between browser and browser technology. At one point, Boies asked Maritz about market shares. For Unix on PCs, Maritz thought it was between one and five per cent. For Microsoft's share, he suggested a modest 70-80 per cent, with Apple having five to six per cent. The number two competitor, Maritz suggested, was piracy. Maritz couldn't (or wouldn't) come up with a figure for Microsoft's market share excluding piracy. Microsoft attorney John Warden objected from time to time, and was systematically overruled. His witness did not answer the question many times. When the questioning turned to Microsoft policies or practices concerning competition conduct or antitrust compliance guidelines, Maritz confessed that Microsoft had none. Judge Jackson said, after an objection by Warden, that "the witness is awfully difficult to get an answer to a question from". Indeed it was, even though a preposition is a bad word to end a sentence with. It emerged that Microsoft is actively considering adding speech processing to the operating system. Since Microsoft is so far behind in this field, it is probably the only way that it could gain some market share. The end of Boies cross-examination was feeble: Maritz was again trying to press the idea that Windows ran on only around 80 per cent of the world's PCs, and Boies had no evidence to shoot this down. Warden's redirect examination was fluent for the main part, but often concentrated on the wrong things, such as trying to prove Microsoft was working on Internet Explorer early in 1994. He was rather pompous, at one point asking Maritz to look at "the second placement and first in the chronological order" of two emails. It turned out that he meant a third of the way down the first page. Warden is technologically challenged by the case, and it appears that Judge Jackson has a firmer grasp of the technology than he does. The main thrust of his questioning was to press the rewind button, revisit history, make a few changes, and then fast forward. Judge Jackson became increasingly interested in the open source movement, and asked Maritz if the people involved were hobbyists. Maritz saw them as village blacksmiths competing with General Motors, but since the Japanese had done that successfully anyway, perhaps it wasn't a very good example. Warden worked his way through the list of questions he had likely been told to feed to Maritz. "Are there any current developments that bear on the ability of companies to distribute software?" he enquired. Maritz was ready with a one-two. There was, at least for the US, going to be Internet access at ten times the current speed so that software downloading becomes a non-issue. In addition, DSL (digital subscriber line) was going to make permanent connections a reality. The result was that "the OEM channel might become eclipsed" so that future PCs would not have a lot of software. A blissful thought, but beware of the flying pig. Warden finished his redirect rather well, with an advanced copy of Fortune for 15 February 1999 that said that "Microsoft [is] waning. Microsoft has gotten used to being the baddest geek in the room and now is becoming the old-timer in the kids game". Maritz lightened up and said that his son considered him and Microsoft to be old timers. Boies' second cross-examination regained some of the high ground he yielded at the end of his first session. It was in his power to find he was unable to finish his questions that afternoon, which would mean Maritz returning again on Monday. For once, Maritz answered concisely, sensing perhaps that this was the way to escape that evening. An email on 10 June 1994 from Microsoft's Steven Sinovsky revealed that said "we do not currently plan on any other client software especially something like Mosaic..." showed that Microsoft did not have plans for a browser in 1993 or in early 1994, as had been claimed by Schmalensee and Maritz. Microsoft licensed Mosaic in January 1995. In April 1995, there was still discussion as to whether Microsoft's modified Mosaic, to be called IE1, should be included in the Windows box or not. As the clock ticked, Maritz increasingly gave the answers Boies wanted. Maritz admitted that the browser was not integrated initially, but it was an objective. Even when IE3 was released, the browser was standalone, Boies suggested, to which Maritz replied that there were "elements of integration... but the whole tenure here is that we had trouble getting it done in time". Finally, an email from Microsoft's Brad Silverberg dated 14 December 1995 described IE3 as a standalone Web browser that runs on Windows 95. It was a satisfactory conclusion. ® Complete Register trial coverage


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