MS exec evasive on ISPs and downloads

Myhrvold's views seem flexible, to say the least

MS on Trial Cameron Myhrvold, VP of the Internet customer unit, strategic relationships, is something of a street fighter in his role at Microsoft. He was far from alone in not being able to get Microsoft Word working properly, so that the paragraph numbers in an HTML printout of his direct testimony were correct: seven times his numbering starts again from one, and a paragraph number is duplicated. So far, only Will Poole has managed to get the numbering right, so perhaps he was using WordPerfect. The video that preceded Myhrvold's cross-examination was also presented by Yusuf Mehdi, who had reported sick at the time that Allchin ran into a few difficulties with his video. The purpose was to show the difference between setting up an Internet connection using Microsoft's Referral Server on Windows 98, and how connection is achieved with Windows 3.1. Mehdi then went on to showing how this worked for Netscape, mercifully without a direct attempt to compare Microsoft and Netscape. It is true that the videos give some background for Judge Jackson in the argument that follows, but Microsoft fails miserably as a pedagogue, and has made a strategic error in not getting a respectable third-party organisation involved in making the videos. The foolishness in Myhrvold's video was in trying to show (unnecessarily) how Internet connection was quicker and easier with Windows 98 compared with Windows 3.1(five minutes versus fourteen minutes), but it was not a good plan to use different speed modems in the machines used for comparison. Myhrvold said on oath that the demonstrations were prepared at his instruction and under his general supervision. He was asked by David Boies if the same speed modems were used, and said: "I believe so". He admitted that the modems were of different makes, but in response to Boies' question as to whether he had suggested using comparable modems, replied: "Yes, of course. And I don't know whether they did or not. That is certainly something I can easily check on. I have a piece of email that would give me that information." It was very strange that he should immediately know he had an email with the information, but had not previously checked it. Boies, or one of his assistants, had checked however, and found that Compaq 7800s came with a 56K internal modem. Myhrvold said: "I believe in each case they were 28.8 modems." For Microsoft, the damage was again done and the media had a headline. Myhrvold's answers to many of Boies questions either showed an astonishing degree of ignorance for a Microsoft vice president, or were evasive and untrue. He denied "that in terms of distributing browser, the two most important of the several channels that we've identified are the OEM channel and the ISP channel". He had been reconverted to the significance of downloaded browsers, and waxed on that he was "fascinated to discover in preparing for this case that I'm actually wrong" in stating in his April 1998 deposition that browsers were too big for large-scale downloading. Boies produced a draft email co-authored by Myhrvold on 18 December 1996 to Brad Chase and others (which he said was never sent) discussing the importance of ISPs as a Microsoft channel: "ISPs drive market share. 35 percent of end-user Internet access customers get their browser from an ISP". In one of several extraordinary volte-faces, Myhrvold said he "wouldn't agree with that statement". It did seem that he was agreeing with the desires of Microsoft lawyers, however. In a deposition on 24 April 1998, Myhrvold said Microsoft would be more successful if Netscape did not have as much distribution as Microsoft, or as many distribution opportunities. Myhrvold was asked to look at it, and immediately said it was not a copy of the deposition since it did not take into account some errata "I was asked to make to it after the deposition". Boies had laid a trap and Myhrvold did not see the net. The hapless Steve Holley, for it was he who had been assigned to be Myhrvold's legal minder, said he didn't have a copy of the revised deposition at the moment, but Witness Myhrvold volunteered "I do, in my bag". Boies asked Myhrvold if he thought that the stenographer took down accurately what he had said at his deposition. Myhrvold hesitated, and momentarily must have imagined he was Perry Mason with the power to have something struck from the record: "I struck-well, you could see for yourself, but I did make modifications to this answer because I did not agree with it when I was shown the draft of my deposition." Boies missed the key point that Myhrvold had made: he was "asked" to make the change - and by who else than a Microsoft lawyer? Boies advised Myhrvold he could say that the transcript was erroneous, or that he had said it but now disagreed with it. Myhrvold had written "Delete entry" on the errata sheet accompanying the transcript. Boies moved on to the subject of Myhrvold's bonus, and asked him if part of his bonus was based on what happened to Microsoft's browser share. Witness Myhrvold, on oath, said "No". Boise pointed out that Dan Rosen, who was known to Myhrvold, had been asked during his deposition: "Do you have an understanding as to why it was essential in February of 1996 that Microsoft increase its browser share?" to which Rosen had replied: "Given the author, I would assume it was essential to Cameron [Myhrvold] because part of his bonus was based on it." Witness Myhrvold had a ready response: "Mr Rosen is wrong." Fascinating details of Microsoft's dealings with major ISPs emerged. AT&T negotiated with Microsoft through Tom Evslin, a former Microsoft executive who was surprisingly naive in that he accepted what Brad Silverberg was asking. Silverberg bragged: "Tom Evslin has told me, (a) he wants to talk about IE separately from MSN, and (b) he very badly wants in the windows box. I have told him that the only way we can even consider AT&T being in the Windows box is if AT&T gives IE exclusive or very, very preferential treatment (a la what we have with AOL) parity is completely unacceptable for them to be in the box." AT&T agreed to an 85 percent commitment to IE. It seems to be a habit for Microsoft executives, and Gates in particular, to boast in emails what tough guys they are in negotiation, with the result that the DoJ has a relatively easy time finding out what they were doing or thinking at a particular time. Boies caught Myhrvold again over the importance of the ISP and OEM channels for browser distribution, contrasting an earlier deposition with what he had said at other times. It seemed as though Myhrvold bent in whatever direction Microsoft's lawyers suggested. He was also caught out with a view that differed even from the previous day, but claimed that "he was trying to be very accurate". Myhrvold admitted he had "removed" an exhibit from his direct testimony, but he was "sure it was produced to the government". Boies ominously said "we'll try to find it" during a break, and did so. The DoJ is doing quite well on being able to find documents, but Microsoft flounders, it would seem. The removed document was an analysis of the Netscape percentage for ISPs, very central to Myhrvold's responsibilities. Myhrvold repeated his obstructive approach to Boies' questions, probably not realising the effect this would have on Judge Jackson. When Boies brought up an email in which Bengt Akerlind wrote "Customers/ISPs don't want to talk about it [Netscape's market share] because they all know we are out to get them" Myhrvold claimed that "I'm not sure exactly what 'them' refers to. Bengt - English is not his first language. Certainly we're not out to get ISPs." He was forced by Boies to acknowledge that Netscape was being discussed. It is also amusing that Myhrvold should comment on the English of Akerlind when his own was so poor: the court stenographers had pointed out more grammatical errors (by means of "sic") in Myhrvold's testimony than in that of any other witness-and there were dozens of errors that went unmarked. It was too great a stretch of credulity that when Boies asked if Myhrvold had heard that the trial concerned Microsoft depriving Netscape of revenue, or cutting off its air supply, he could only manage "I may have". An email from Steven Wu in September 1996 said "I think we are definitely hitting them [Netscape] where it hurts in revenue and units". Myhrvold did not remember receiving this, claiming he received "a hell of a lot of email". It was curious that Myhrvold seemed to be concerned about his future job at Microsoft. He said he disagreed with a comment he made on the first day of his testimony that "at some point all browsers will come in the operating system, and this will obviate the need for netops to ship them to their customers". But Boies showed that Myhrvold had said in another email that "I'm afraid Bill's [Gates] view is that as soon as we put IE into Windows 95, it's no longer an issue, and I think we have to show ISP distribution is a real and ongoing issue." Myhrvold confessed: "So, there I'm concerned that perhaps Bill has not thought through this issue and will not care about my business after we ship Windows 95." It will be interesting to see in future years the extent to which self-interest by Microsoft employees becomes a policy determinant. Like other Microsoft witnesses, Myhrvold claimed to know very little about the key data relevant to his job until some obscure fact might help the Microsoft case, at which point it miraculously recovered. His efforts in court, particularly his evasiveness, probably harmed Microsoft's case rather than helped it. For its part, the DoJ managed to strengthen its case from his responses. In view of Myhrvold's performance in his job, let alone as a witness, the question arises as to whether he is under the protection of Nathan Myhrvold, his brother and Microsoft's chief technical officer, who is close to Gates. ® Complete Register trial coverage

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