September 22, 1999

Summations Are Offered in Microsoft Antitrust Trial

By JOEL BRINKLEY

ASHINGTON -- Almost a year after it began, the Microsoft antitrust trial wound to a close Tuesday with final arguments from lawyers for the company and the Government that ranged from scornful to contemptuous of the other side's case.

MICROSOFT ON TRIAL Index of Articles Forum Is Microsoft too powerful a player in the computer industry?

When it was over, at dusk this evening, Judge Thomas Penfield Jackson said simply, "Thank you, counsel. The case is submitted." He then rose from the bench and marched unceremoniously from the packed courtroom.

Later this year, probably before Thanksgiving, Judge Jackson is expected to issue his findings of fact, a first brush at a verdict that sets out which version of events, the Microsoft Corporation's or the Government's, he takes to be closest to the truth. A verdict should come a few weeks after that.

This morning, two Government lawyers contended that Microsoft was guilty of every charge and that the Justice Department's case was strong.

"Your Honor, the overwhelming weight of evidence in this case establishes not just that Microsoft has substantial monopoly power but that Microsoft has wielded its power to the detriment of consumers," said Stephen Houck, the lead lawyer for the 19 states that joined the Justice Department in the antitrust suit.

"If the market remains structured as it is," he added, "Microsoft will retain both the means and the incentive to do what it's done for many years now -- to restrict consumer choice, to raise prices and to stifle innovation."

For his part, Microsoft's lead lawyer, John Warden, characterized the Government's case as "specious," "fiction," "fantasy," "silly" and "pure baloney."

"Any extraordinary relief requires an extraordinary showing of evidence," he asserted, "and hearsay, semantic games and accusations of deals that were never consummated do not stand as an extraordinary showing."

No new evidence could be introduced in closing arguments; the lawyers could only summarize and repackage evidence they had already presented during the trial.

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Government lawyers say that their stongest hand is the copious documentary evidence they subpoenaed from Microsoft: thousands of e-mail messages and other internal corporate records from the last five years. Today, David Boies, the lead lawyer for the Justice Department, repeatedly exhorted the judge to ignore what Boies portrayed as revisionist explanations Microsoft had offered in court.

"I urge the court to look at the contemporary records," he said. "Look at what they were saying at the time."

That record, he said, clearly supports the Government's central contention, that Microsoft chose to merge its Web browser into its Windows operating system as a means of crushing its chief competitor in the browser business, the Netscape Communications Corporation.

"Microsoft argues that they're doing this to improve Windows," he said. "I urge Your Honor to look at the documents. They're not saying they're tying these two things together so they'll sell more Windows. No, they are using Windows" to put Netscape at a disadvantage.

When computer manufacturers complained that they did not want a bundled browser with Windows, Boies recounted from testimony, Microsoft countered that the manufacturers could not hide or remove Microsoft's browser because the company "wanted to protect the Windows experience."

With that, he added, "They were trying to throw some kind of patina over what they were really trying to do: stop distribution of competitors."

Running through most of the Government's allegations, Boies repeatedly contrasted the Microsoft lawyers' explanations in court with contemporaneous internal discussions laid out in the Microsoft documents, arguing that they were at variance or in directly conflict.

As an example, trying to show that Microsoft is not a monopolist, the company's lawyers argued that other companies could unseat Microsoft at any time. But Boies showed statements in which William H. Gates, Microsoft's chairman, said he did not think those threats were real.

The Government, as part of its presentation today, also played parts of Gates's videotaped deposition.

When his turn came, Warden argued that nearly all the Government's witnesses were either paid experts or representatives of Microsoft competitors, companies that had "lobbied the Government for the chance to appear." Too often Warden asserted, "these witnesses said one thing here in court and then did something quite different in the marketplace." He called the Governemnt's documentary evidence "marginal e-mails."

In final arguments, lawyers scorn the other side's contentions.

As for Boies's repeated success at humilating Microsoft's witnesses in court early this year, Warden said: "It did win the rapt attention of the gallery, but in the real world it is clear that the Government has failed to make its case. There are astounding failures of proof and glaring inconsistencies from the witnesses."

He repeatedly directed the judge's attention to a Federal appellate ruling in June 1998 that Microsoft had the right to integrate a browser with Windows if the integration benefitted consumers.

He held out his harshest criticism for Edward W. Felten, a Princeton University computer scientist who served as a Government witness and professed to be able to pull the browser out of Windows without damaging the performance of the operating system. This was an attempt to disprove Microsoft's assertion that the browser had been so thoroughly integrated into Windows that neither would work any longer without the other.

Felten sat in the courtroom with several of his students this afternoon as Warden called his testimony "a shame, the crudest form of sleight of hand, a game."

Warden dismissed the Government's many-layered argument that Microsoft held a monopoly in personal computer operating systems by saying "If there is no commercially viable alternative to Windows 98, then it's because there is not demand."

Alluding to one possible remedy should Microsoft be found guilty -- giving the Government a role in product development -- he said, "I think all of us agree that central planning is bad."

In his rebuttal, Boies took up that line and said, "I agree that central planning is bad." The judge then allowed that he, too, opposed "central planning."

To which Boies added, "Central planning is bad -- by Governments, and by monopolies."