Witness Hearings End in Microsoft Case

By Caron Carlson  |  Posted 2002-05-12
Eight weeks of witness accounts in the case for strict antitrust remedies against Microsoft Corp. concluded Friday with a bit of a whimper, rather than a bang, in a room filled with very tired-looking lawyers and a smattering of public viewers occasionally dozing off.

Each side in the battle--Microsoft and the nine states plus the District of Columbia that are seeking the tough remedies in lieu of a federal settlement agreed to in November--expressed confidence that it had presented the case that would sway Judge Colleen Kollar-Kotelly.

Declaring that Microsoft has demonstrated "just how Draconian and unfair" the states proposal is, attorney Dan Webb told reporters following the hearing that the remedies would harm consumers, the economy and the entire "PC ecosystem."

"The bottom line is very simple," Webb said. "The non-settling states have completely failed to prove their case."

Tom Greene, assistant attorney general for California, said that the states have shown not only that the proposed remedies would benefit competition, but also that they are feasible and reasonable. Microsofts assertion of great harm is a scare tactic, he said.

"Its fundamentally a dare [to the judge]," Greene said about Microsofts threat to pull Windows from the marketplace if the states remedy is approved. "The question is, have they been so frightening that shes unwilling to go in our direction?"

The thorniest issue in the case is the states first remedy proposal, which requires Microsoft to make available a modular Windows, that is, one in which the operating system is unbound from the companys middleware in a way that does not degrade any functionality. Microsoft has asked the judge to throw out the entire case, but it has also asked that if she does not dismiss the case that she at least reject the first remedy proposal.

The states had won the judges approval early in the week to call two expert witnesses to rebut Microsofts witnesses and demonstrate that it is technically feasible to create a modular Windows operating system using Windows XP Embedded. But in a rare moment of courtroom drama late Thursday, the states changed their minds and canceled the witnesses after Microsoft complained about the additional time the rebuttal witnesses would take.

In making their closing arguments--which will likely take place in mid-June--the states will rely on testimony from Bill Gates acknowledging that there could be a market for a modular Windows. They also will rely on the determination by the court of appeals that Microsofts co-mingling of the operating system with a browser was anti-competitive, Greene said.

Microsoft will turn to testimony from one of the states witnesses, Carl Shapiro, a economics professor at the University of California, Berkeley, who would not endorse the proposal for a modular Windows.

As Microsofts final witness, John Bennett, a computer science professor at the University of Colorado, completed his cross-examination Friday, the states tried to show that his testimony transcended his expertise and reflected Microsofts position rather than a strictly independent analysis.

Steven Kuney, attorney for the states, grilled Bennett about several areas in his written testimony that went beyond matters of computer technology into matters of consumer attitudes and marketing. Bennett conceded that his opinions on those matters were based on his own experiences as a consumer, not on any expertise.

Kuney also quizzed Bennett about his assertion that many of the definitions listed in the states proposal are overly broad. Noting that many of the definitions Bennett cited are almost identical to definitions in the federal settlement proposal that Microsoft agreed to, Kuney got Bennett to concede that it is the use of the definitions in the states proposal that he takes issue with.

Bennett also acknowledged that several areas of his testimony were based on conversations with Microsoft employees and that he was not familiar with all of the issues he testified about before Microsoft asked him to be a witness.

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