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Microsoft, Then and Now - Searching for Video of the US Antitrust Trial
Monday, March 27 2006 @ 11:01 AM EST

The New York Times' Steve Lohr and John Markoff have an interesting take on Microsoft's decision to delay Vista:
Back in 1998, the U.S. government declared that its landmark antitrust suit against Microsoft was not merely a matter of law enforcement, but a defense of innovation. The concern was that the company's strategy of bundling more and more features into Microsoft Windows was thwarting competition and stifling innovation.

Eight years later, long after Microsoft lost and then settled the antitrust case, it turns out that Windows is indeed stifling innovation: at Microsoft.

The problem, they say, is the decision to make everything backward compatible. I don't agree that the company has always done that, but maybe you need to be a secretary or a paralegal to know about those struggles. But let's posit that the company does have that goal now. They have said so, citing that as their reason for not supporting ODF and offering their own XML standard instead. My brain just can't accept that having more than one standard is useful. Imagine if firemen arrived at a fire, and their hoses couldn't fit on the hydrant.

Don't laugh. It happened in 1904, when reinforcements arrived from out-of-state to help fight a huge fire in Baltimore, and the disaster -- the fire destroyed approximately 2,500 buildings and burned for more than 30 hours, while all those out-of-state firemen watched helplessly -- led to standards on firehose couplings. Prior to that, each municipality had its own. I think computers have similarly reached a point where too many people depend on them to let there be competing and incompatible standards. Think Katrina. Yes, people's lives do depend on computers sometimes.

Reorganizing the executives at Microsoft won't solve the real problem, according to the New York Times article, which is that the code is too large and too complex. They also think that it was worries about antitrust issues that contributed to the decision to delay, because Microsoft has promised not to treat OEM's preferentially, and unlike Dell, HP sells through retailers, which means stocking shelves, and that takes time:

Hewlett-Packard, according to a person close to the company who asked not to be identified, informed Microsoft that unless Vista was locked down and ready by August, Hewlett-Packard would be at a disadvantage in the year-end sales season.

Maybe, if that is the issue, Microsoft should just support ODF and give up on the old, tangled pile of spaghetti. It doesn't seem to be working out for them. Anyone thinking of adopting their XML instead of ODF needs to consider what has just happened too. If the legacy code is too complicated and just too hard to support, are there troubles ahead for you?

Reading about their antitrust concerns made me start looking around for some video of David Boies, so you could see him in action.

It used to be that you could find video of the US antitrust trial everywhere. CourtTV had it, and so did ZDNET. Didn't the Department of Justice website have it too? It seems to be all gone. All of it. Even Wayback, which shows the prior existence of some of the files once on ZDNET, no longer will play them. If you download them, RealPlayer says it can't find the server to play them and if you try to just open them, you get the old CNET page, but no video. At least that is what happened to me. In other cases, there is a robots.txt file blocking. Such a complete cleansing of history is seriously weird.

Here's Harvard's Cyberlaw's collection of transcripts of the trial, Trial: The Microsoft Case, which is the next best thing. I contacted them to see if they had the video, but they said they couldn't archive the ZDNET or CourtTV's materials, for copyright reasons. Copyright strikes again. I next tried Harvard Law School, because as a library, they'd be allowed to archive copyrighted materials. They have the deposition from 1998 of Bill Gates, but you have to go there to view it on 11 video cassettes. Research libraries don't let you take things like that home, generally speaking. And rightly so, because if you lose it or your dog eats it, then there is no copy left anywhere. I'm a little nervous about telling you it exists, for fear it will disappear too. And even Harvard Law School doesn't have all the depositions, just that one. They got their copy from the Government Printing Office. But I contacted the Library of Congress and they don't have it any more. Here's what Harvard has:

Gates, Bill, 1955-

Deposition : Bill Gates [videorecording] : case : U.S.A. v. Microsoft Corp.

[Washington, D.C. : U.S. G.P.O., 1998]

11 videocassettes (ca. 1040 min.) : sd., col., 1/2 in.

U.S.A. v. Microsoft Corp.

United States of America v. Microsoft Corp.

Deposition of Bill Gates in the United States of America v. Microsoft Corp. case, U.S. District Court, District of Columbia. Deposition held and filmed at Microsoft in Redmond, WA.

Deposition was taken over three days: 8/27/1998, 8/28/1998, and 9/2/1998.

United States. District Court (District of Columbia)

Microsoft Corporation.

008671575#

The fact that Harvard has this means that a research library near you may have it too. (The University of Chicago has it too.) If you'd like to read a transcript of Boies in action instead of going through all the hassle to view the video, try his opening statement (warning: they are doc files that download on to your computer if you click on the link), or read the cross examination of James Allchin, which includes the famous altered video, which you can read about here. Boies did that cross. The Register also has a massive collection of coverage of the trial that they did, which is a treasure trove, and they have an article about that video too.

This transcript is interesting, where Boies plays some depositions of Bill Gates, even though it isn't Boies doing all of the deposition. The attorney discusses with him an email in which apparently Gates and his boys discussed getting Apple to do a deal with Microsoft, which it eventually did, regarding IE, Microsoft's goal, according to the email, being to harm Sun and Netscape. It seems there were discussions of threatening Apple with a cancellation of MacOffice as a bargaining chip, in discussions with Apple over a patent cross license, to get Apple to do what Microsoft wanted. It seems that there is more utility to patents than just using them to sue people. I must say what popped into my head as I read this transcript was wondering just why Apple decided to support Microsoft's XML, instead of ODF.

You can see a short snip of Bill Gates being deposed in September of 1998 here, and the voice of the attorney asking him questions sounds like David Boies to me. It's too short to be satisfying as to Boies' performance. But it's revelatory about Mr. Gates. To be fair, here's Gates' reaction to the depositions. The guy who posted the brief video clip claims to have a 12 DVD set of the deposition for sale. You can also read this interview with Ken Auletta about the trial. And here's the District Court's site and here's the page of orders by Judge Jackson. No video.

So we'll have to step outside of the antitrust trial to see Boies at work in video. Here's a lecture he gave [RealPlayer needed] at Yale Law Schoool, his alma mater, in 2003, "Fashioning the Legal Constitution: Culture, Courts and the Law." More recently, here's one he gave in November [RealPlayer needed] -- "Judicial Independence and the Rule of Law" at Wisconsin University Law School. He gave the same lecture elsewhere, at New York Law School, where he said that the justice system should be made "more fair". There's a link to the video on that page (scroll down until you see his picture). If you prefer, you can just read quotes from the lecture.

The Department of Justice website has voluminous transcripts, exhibits and documents -- but no videos -- here. Excerpts of transcripts of depositions are here, including one by Bryan Sparks [PDF], I notice, then with Caldera. A lot of it is whited out (I believe Microsoft was able to exclude materials from depositions regarding the Caldera v. Microsoft litigation, which was a Sparks production, at least according to this contemporaneous article in The Register. But isn't it interesting that Boies wanted that material entered into the case? And later, as we know, Canopy asked the court to destroy a lot of those documents from the litigation. So much history being wiped away.) Sparks is asked about OpenLinux and on page 11 of the transcript, he indicates that they were having trouble getting OEMs to offer it, he thought because of fears of retaliation by Microsoft:

Sparks: ... I'm not sure how to elaborate on that, but it is difficult to break in. We also have the -- at least perceived -- I don't have direct knowledge of real, but the perceived notion -- or ai can't comment on the real -- where there's the notion that it would be difficult for the OEM's to take a risk on anything other than Microsoft for retaliatory reasons.

Q: What attempts has Caldera actually made to distribute OpenLinux through OEM's?

Sparks: We've tried. We've talked to some of the larger OEM's, made efforts -- came where we thought was pretty close on one or two of those. Just haven't been successful. We made presentations, we've negotiated price, we've talked about market segments, we've talked about cooperative marketing and sales rollouts, and just haven't been successful in doing that.

He relates that one prospective deal with Compaq went "down the road quite a ways and then, you know, stopped. So I don't know why." That puts the Caldera story in a new light. Darl McBride said they couldn't make money on Linux. Well, if Sparks' story is correct, and it was Microsoft pressuring OEM's not to offer OpenLinux, that would be a different root cause for Caldera's problem. Clearly the GPL wasn't the problem in such a scenario. Sparks says he tried at Dell too, but he couldn't get very far, because, he says, "They're a very outspoken Microsoft shop at Dell, and so, you know, we didn't make much headway there, apparently." You can see how press clippings can be used in litigation beginning on page 19, by the way.

You can see Boies in action before the Supreme Court in the Gore election case by going to this CBS News collection and looking for his name. Oyez has one audio clip here, with accompanying transcript, in .smil format, but my RealPlayer won't play it, claiming it is an unsupported type. Sigh. So, ZDNET, how about it? Could you look around and see if you have those videos lying around somewhere? CourtTV? Is there any way you guys could make those videos available, if you find them? Please? Pretty please? You may say it's just data rot. However, if a guy in Florida is selling DVDs of the deposition of Bill Gates dating from 1998, and Harvard Law has video cassettes, how can that be the entire explanation? Can it really be the case that absolutely no one thought to preserve these videos for posterity? I called Lexis to see if I could buy them. No. They don't have them either. So much for the promise of the internet. If anyone has any news of a sighting of any of that deposition video, I'd surely like to hear about it. And just so you know, the Court of Appeals in the case already ruled that the depositions had to be made public, something Microsoft tried to prevent. Our thanks go to the New York Times for making that happen, and to Tom Harney for finding that article. So, history has been disappearing.

And now you know what Groklaw is for.


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