Called to the bar

DoJ, Microsoft post their rebuttal witnesses


MS on Trial What are we to make of the list of rebuttal witnesses in the Microsoft trial? The choice by each side shows the aspects of the case they consider to be important. The DoJ seems to have a better selection than Microsoft, all things considered. For Microsoft, the AOL takeover of Netscape is seen to be important evidence that Microsoft has competition, and Microsoft will be mindful that Judge Jackson expressed some surprise at the deal which Microsoft interpreted as a rare example of something favourable to its case. Consequently, Microsoft is risking again calling David Colburn, AOL senior VP for business affairs, as a hostile witness. But since AOL subsequently renewed its agreement to use Internet Explorer as its preferred browser, and also found itself paying twice as much for Netscape as a result of AOL shares having risen steeply after the announcement, the merger does not now look so good. Microsoft is still suggesting that the merger undermines the DoJ's case, and further suggests that Colburn's prior testimony was not complete or candid, based on new documents and depositions since the merger. AOL CEO Steve Case was expected to be called, but Microsoft may well have thought he would be a more difficult witness to control than Colburn. A further blow to AOL came last week since it now looks as though AOL is going to get effectively locked out of being the Internet service provider for cable in the US. Microsoft and AT&T intend that AOL will only be offered as an additional service for a fee, and not as the main service provider, which will act as a significant disincentive for users to pay for Internet access twice just to get AOL's proprietary content. Gordon Eubanks, former CEO of Symantec (and before that he was at IBM), has been less antagonistic to Microsoft than most, despite open warfare from Microsoft in the utilities market. He is noted for having said to Forbes in 1991: "Bill wants to have as much of the software industry as he can swallow, and he's got a very big appetite." And in 1995 to the San Jose Mercury that "software tends to gravitate towards monopoly, because of the benefits of standards. That's balanced by the speed of change in technology, and low barriers of entry in the software business". Eubanks left Symantec in April after the stock had declined 34 per cent so far in the year. He was replaced by John Thompson, former general manager of IBM Americas. Eubanks now runs Oblix, a Web software company. Microsoft wants Eubanks to say how dynamic the competition is in the industry, and the benefits of competition. It will be interesting to see whether Microsoft gives any kind of backhander to Oblix after the trial, but before that, David Boies, the DoJ special trial counsel, will have some questions about the lack of dynamic competition in the operating systems market. The DoJ is recalling Edward Felten, whom Microsoft negated by adjusting Windows with te result that his prototype program to disable the browsing capability of IE in Windows did not work as it had in the laboratory. Felten will be pretty peeved, but have the advantage of the superior program developed in Australia to remove a great deal more of IE from the "integrated" Windows. He and his boys are unlikely to be caught out by a dirty trick this time. Although Felten's contribution was something of a sideshow, the DoJ is evidently still trying to get a remedy that prevents Microsoft offering Windows 98 as an "integrated" product. A lucid summary as to just how Microsoft has set about making it difficult to separate IE from Windows can be expected. Felten will also elaborate on how browsers work with BeOS, Linux and MacOS are readily removable or replaceable, and why it is not necessary for browsing to be hard-wired into Windows, so making IE non-optional and non-removable. If Eubanks was surprise witness for Microsoft, then Garry Norris, previously director of software strategy and strategic relations for the IBM PC company, (from 1995 to 1997) is a greater surprise. However, his evidence will probably be the most interesting and damaging. Norris started with IBM on the marketing side in 1982, so he will have seen the whole Microsoft saga develop. He negotiated Windows licensing agreements with Microsoft, as well as the so-called market development agreements that Microsoft uses to allow discounts for those who toe the line. So far the DoJ has presented very little evidence from PC makers as to just how they were treated by Microsoft. Since Norris is no longer with IBM, he is likely to be much more outspoken than John Soyring, who was a very low-key IBM witness. Norris will have a great deal of dirt that, if presented, could have a significant impact on the trial. The remaining two witnesses are both economists who have already given an abundance of ill-founded and error-rich evidence. They are Franklin Fisher for the DoJ, and Richard Schmalensee for Microsoft. Although arguments by economists have played a major part in antitrust cases in the past, there is a significant change of climate in the US -- particularly in New York and Washington -- since economists have failed to predict economic outcomes because their models are based on an industrial society, whereas in reality we are in a post-industrial age. Nonetheless, interminable flawed arguments can be expected, but it seems unlikely that they will influence Judge Jackson, who has shown that he has a sound enough grasp on the technical aspects of the case to see through some of the silliness that is likely to emerge. Assuming Judge Jackson continues with his four day weeks, it is likely that the rebuttal witnesses will take a month or so. A spokeswoman from the prosecutor's office in Jude Jackson's present drugs case told The Register that she expected that trial to be sent to the jury in about a week, so the Microsoft trial may restart next week. Complete Register trial coverage


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