Gillmor: Case vs. Microsoft looks solid
I came across this anti-Microsoft piece in Sunday's San Jose Mercury News at mercurycenter.com.
I have noticed a bias towards Apple by this journalist in the past.
BY DAN GILLMOR
Mercury News Technology Columnist
Early this week, barring the unexpected, the United States, 18 state
governments and the District of Columbia will rest their antitrust case against
Microsoft Corp. The company will then ask U.S. District Judge Thomas
Penfield Jackson to throw out the case. Jackson will say ''no,'' barring the
unthinkable, and the company will begin to put on its own witnesses.
The prosecution's witnesses have held up well under withering, and often
wearisome, cross-examinations by Microsoft's legal pit bulls. But the glue of
the government's case has been in its exhibits. The strongest have been
Microsoft's own words, revealed in internal documents that shine a light on a
remarkable corporate culture.
It's a culture of hard work and superb talent, without a doubt. The talent shines
through in documents that show penetrating strategic insight and tactical
smarts.
You see the hard work when you notice the times on the e-mails, late into the
night and at the crack of dawn. You wonder when they sleep in Redmond,
Wash.
But the culture also radiates contempt. It rejects the norms of behavior that
most of us take for granted. This part of the culture is ugly and paranoid, like a
dictatorship that can survive only as long as it crushes all dissent. It leads, as
the evidence has shown, to predatory behavior against software companies,
bullying of captive PC-manufacturing customers and even roughhouse antics
with its best partners.
The government's other major weapon has been the series of excerpts from Bill
Gates' pre-trial deposition. His deliberate, brazen obtuseness and avoidance of
the most direct questions are bad enough. But if you've seen any of the
excerpts you've gotten a fine view of the sheer contempt this man holds for
anyone who dares to challenge his right to do anything he pleases.
Gates and his apologists wail at the supposed unfairness of it all. They've
insisted that the excerpts aren't relevant. Or, Gates' behavior is typical of
people being deposed. Or, playing of the excerpts is a government plot to
poison public opinion.
Microsoft knows better. The judge knows better, too, if his comments are any
guide.
Despite Gates' dizzying attempts in the deposition to seem unknowledgeable
about his own actions and his company's strategies, the Microsoft chief
executive is widely recognized as one of the most intelligent and hands-on
CEOs in the world. In the real world, no company more purely reflects its chief
executive than Microsoft.
The strength of the government's case has been especially surprising given
the refusal of key victims to testify. The PC manufacturers may loathe
Microsoft and its heavy-handed tactics, but they thrive or wither according to
Microsoft's whims. Their cowardice in declining to testify may be rational. But
it is contemptible. The PC makers should pray the government wins and gets a
satisfactory remedy. Otherwise they'll end up in the worst position of all, and it
will serve them right.
Microsoft did score a few points during the government's case. The company's
best moments came when it showed the errors, if not outright incompetence, of
the companies it sought to crush.
At one point, Jackson noted with acid accuracy to a Sun Microsystems Inc.
executive that Microsoft's version of the Java programming language worked
better than Sun's own version in some respects. Sure, Microsoft's overall aims
were to ruin Java's promise as a potential Windows competitor. But the
company could plausibly claim that it was doing something beneficial for
consumers.
While World Wide Web browsing software has been at the heart of the case,
the defense problem is more generic. Microsoft must find a way to convince
Jackson, or the appeals courts, that it isn't a monopoly. This will be a huge
hurdle.
If Microsoft is found to enjoy a monopoly with its Windows operating system,
as I believe the court will rule, the company inevitably will be found to have
used the monopoly in illegal ways. Only one of those will be the crushing of
Netscape Communications Corp.'s Web-browser business. Contrary to
Microsoft's spin, moreover, the buyout of Netscape by America Online more
reflects Netscape's capitulation to monopolistic tactics than any competitive
threat to the Windows hegeomony.
Microsoft says it behaves no differently than others in the technology
business. This may be true, sadly. But a monopoly isn't allowed to behave the
way a non-dominant company behaves. What's legal for a company on the
way up, however unethical or ugly the behavior may be, often is illegal for a
monopolist.
One of the interesting things about Microsoft's list of witnesses is how few are
from outside the company. This reflects more than just the company's paranoid
and insular nature. It also suggests that it couldn't find very many credible
outsiders willing to defend its behavior, at least not under oath.
I'm told that the government lawyers, particularly antitrust
litigator-extraordinare David Boies, can barely contain their eagerness to
cross-examine Microsoft's executives and other witnesses. Microsoft's own
arrogance led it to establish an incredibly damaging e-mail ''paper trail,'' and
the government lawyers are undoubtedly salivating as they wait to undermine
the company's witnesses with their own words.
However this case turns out, it has already had one valuable effect. The world
is getting a look inside the technology business, and anyone with a sense of
right and wrong has to be appalled.
Even if this trial fails to come up with an ideal judicial remedy for one
company's predatory excesses, it will shine a valuable light on the problem.
Dictators thrive on secrecy, not just raw power, and good people must learn
about the outrages before they can resist.
Microsoft won't be the last monopoly threat we face, just as it wasn't the first.
But this case remains the most important antitrust action in a generation,
because it will help make the rules for competition in the Information Age. Stay
tuned.
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