The fact is, the Microsoft programmer can just say "yes, it makes maintainability harder, but the resultant code runs 1.732% faster, and we decided that speed was more important."
Close, but no, the Microsoft programmer will say "yes, it makes maintainability harder, but the resultant code runs 1.732% faster, and we decided that consumers think that little extra bit of speed is worth the price (i.e., the trade-off) of harder maintainability."
And I'm not sure there is anything the government can say to rebut that, other than to show that the Microsoft programmer is just flat out lying, and that the whole technical claim is nothing but a pretext to cover up anticompetitive intent.
And my guess is that the law will presume that the Microsoft programmer knows more about Microsoft code than anyone else. You and I know that that wasn't the real consideration, and that the programmer is lying, but Farber's testimony won't knock it down. What the DOJ really needs is a document, some sort of email that says "let's integrate the code so that it's harder to use Netscape." That's the sort of support that the DOJ needs for this part of the case.
Of course, this is only my opinion (God only knows what the D.C. Circuit will say), and just the memo won't be enough if the proffered technical justification (see above) is true, but you're definitely on the right track and getting warmer. :) |
