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To: Gerald R. Lampton who wrote (21928)	12/4/1998 4:36:00 AM
From: Daniel Schuh	Read Replies (1) \| Respond to of 24154

Gates, Boies in 'pissing' match zdnet.com I don't know why, exactly, I'm on the the stand wrt Gates' testimony. As a bemused spectator and hearts and minds watcher, it's relevant enough to me. This article gives Boies' response to that question, but my "relevance" criteria gets covered first. Unlike previously released portions of his deposition, where Gates assiduously dodged questions, today's excerpts proved at times amusing. For example, at one point, David Boies, lead prosecutor for the U.S. Department of Justice, and Gates danced through a series of eight questions about the meaning of the phrase "pissing on," which was used in a Microsoft e-mail sent to Gates regarding the Redmond, Wash., company's plans to discredit forthcoming Java technologies from Sun. "Now, Mr. Slivka, a Microsoft project leader, here says that Microsoft is going to be saying uncomplimentary things about JDK 1.2 at every opportunity," said Boies. "Do you see that?" "Where's that?" responded Gates. "'JDK 1.2 has JFC, which we're going to be pissing on at every opportunity,'" Boies read. "I don't know if he is referring to pissing on JFC, or pissing on JDK 1.2, nor do I know what he specifically means by 'pissing on,'" retorted Gates. Frustrated with Gates' refusal to say whether the phrase meant that Microsoft intended to discredit Java, Boies eventually asked Gates if it was actually a code word inside Microsoft for saying nice things about something. I'm glad to see others finding amusement in deconstruction of the Microsoftese, as indicated below. While the exchange drew laughs within the courtroom -- even from District Court Judge Thomas Penfield Jackson -- the majority of the video consisted of Gates claiming he had little or no knowledge about the reasons that Sun sued Microsoft over Java or what Java development activities were under way at Microsoft. Gates responded to many of the questions with "I don't know," "I don't remember" or "I'm not sure." On a slightly more substantial note, wrt the relevance question, we have this. Outside the courtroom during the break, Microsoft officials said the presentation of Gates' deposition may have been amusing, but it was irrelevant. But Boies quickly countered, saying the purpose behind showing the tape was to show Gates being evasive and to prove him wrong. "That shows that someone has something to hide or knows that they have done something wrong," Boies said. Remember, Gerald, litigation is (psychological?) warfare? Somebody said that once here. Personally, my view on antitrust in this context has always been that it's one front in a broader war. Cheers, Dan.

To: Gerald R. Lampton who wrote (21928)	12/4/1998 10:29:00 AM
From: Gerald R. Lampton	Respond to of 24154

And, I still would like an explanation of the relevance of the Gates testimony. Well, let's see if I can help things along. Antitrust law has never clearly defined what it means by predation, but the concept clearly contains an element of wrongful or specific intent, of a deliberate seeking of market power through means that would not be employed in the normal course of competition. . . . Predation may be defined, provisionally, as a firm's deliberate aggression against one or more of its rivals through the employment of business practices that would not be considered profit-maximizing except for the expectation either that (1) rivals will be driven from the market, leaving the predator with a market share sufficient to command monopoly profits, or (2) rivals will be chastened sufficiently to abandon competitive behavior the predator finds inconvenient or threatening. R. Bork, Antitrust Paradox 144 (1978). So, here is one logical chain of reasoning: 1. Gates claims not to know about, or to know the meaning of, e-mails sent to him by his most intimate business associates. 2. Any normal person in Gates' position would know these things. 3. Therefore, we can infer that Gates does know about and understand the meaning of these e-mails, and that Gates is lying. 4. We can infer from the fact that Gates is lying that he wants to conceal his knowledge of the contents of the e-mails. 5. We can infer from a wish to conceal a consciousness of guilt, i.e., the knowledge that the things described in the e-mails, that he claims not to know about, are wrong. 6. From this knowledge of wrongfulness, we can infer predatory intent. Those are a lot of inferences. I could make the usual arguments about how there could be alternate explanations for the denials, they don't stand up if you break the logical chain, etc. I won't do that, because I think the judge will draw those inferences, as he is entitled to do.