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Today's YouTube: US v. Microsoft 10 Years Later
Monday, December 01 2008 @ 01:01 PM EST

I found a treasure on YouTube. Harvard's Berkman Center for Internet & Society has a channel on YouTube now. And they held a conference in September on the US antitrust trial against Microsoft, collecting many of the players in that famous litigation, including David Boies. So it's your opportunity to see him in action. As usual, he's impressive. I think you'll find his explanation of trials as morality plays intriguing. He talks about highly technical trials, and how the judge finally has to decide who he believes, based on credibility. In the SCO context, I'd say that might not be a winning strategy.

: D

Microsoft's general counsel, Brad Smith, was there too, although he wasn't at Microsoft at the time, but he is refreshingly candid about that trial, saying you can't put lipstick on that pig. He goes on to talk about his efforts to start a new chapter for Microsoft, which I found interesting in that it provides some context into Microsoft's efforts to be less obviously horrible about interoperability, even if you view what is said with one cynical eye open. In any case, fairness alone would cause me to mention it to you. Truth is complex and multi-faceted, and it's really fascinating stuff.

In passing, I'll mention that EFF has highlighted some privacy issues with YouTube and one solution they came up with. With regard to referrer information being sent, Opera gives you the option to turn referrer logging off. Just saying. You can view the videos on the Berkman site also.

So here are some of the videos in the series:

  • Phil Malone's Opening Remarks - Phil Malone is Clinical Professor of Law at Harvard and former lead prosecutor on the Microsoft case for the Antitrust Division of the US Department of Justice. He opens the conference and sketches the long history of Microsoft's antitrust battles. He is a co-founder of the Berkman Center's Citizen Media Law Project and is co-director of the Berkman Centerís Clinical Program in Cyberlaw. Phil came to the Berkman Center after 20 years as a federal prosecutor with the Antitrust Division of the U.S. Department of Justice. He is also one of the author's of the amicus brief in the Lori Drew case.

  • Roundtable Panel 1 with Smith, former DOJ Antitrust head Doug Melamed, and BU law professor Keith Hylton, moderated by Harvard Law antitrust professor Einer Elhauge. There are some interesting comments from the audience, many of whom were involved in the case. The contempt case that they talk about is here.

  • David Boies, founding partner of Boies, Schiller & Flexner and the DOJ's special trial counsel in the Microsoft case. A member of the audience asks him about his favorite moments in the trial.

    Brad Smith.

  • Panel 2, the more techy panel, moderated by Andrew Chin, with David Heiner, Edward Felten, and Steve Holtzman. They talked about tying.

  • Panel 3, Frank Fisher, Doug Melamed, Harry First, Keith Hylton, and Jay Himes debate the meaning of the Microsoft case and remedy in: Assessing Market Power and Anticompetitve Conduct in Dynamic, Innovative Driven Markets: Economic and Legal Lessons from US v. Microsoft.

  • Panel 4, a discussion among three journalists who covered the Microsoft trial, Rajiv Chandrasekaran of the Washington Post, Joe Nocera of the New York Times and Fortune Magazine, and John Wilke of the Wall Street Journal, and Microsoft's chief spokesman at trial and current general manager of public relations and public affairs, Mark Murray.

If you get intrigued by it all, and you want to read transcripts from the trial that Boies references, for example the Richard Schmalensee and Daniel Rosen testimony, you can find them here, direct testimony here and deposition transcripts here. The last two are on the DOJ's site, and their security policy is here:

For site security purposes and to ensure that this service remains available to all users, this Government computer system employs software programs to monitor network traffic to identify unauthorized attempts to upload or change information, or otherwise cause damage. Anyone using this system expressly consents to such monitoring and is advised that if such monitoring reveals evidence of possible abuse or criminal activity, such evidence may be provided to appropriate law enforcement officials. Unauthorized attempts to upload or change information on this server are strictly prohibited and may be punishable by law, including the Computer Fraud and Abuse Act of 1986 and the National Information Infrastructure Protection Act of 1996.
Hasn't someone invented a tool to do transcripts from videos yet? If not, we should at least do the Boies video, don't you think? All the videos are released under this Creative Commons license, Attribution 3.0 Unported. That's the human English version. Here's the legal language. I'm not positive what "unported" means, in connection with either language, but the terms are clear enough that I think it means we could do a transcript as long as we follow all the steps in the terms.

Update: I found one more video, Jonathan Zitrain's, who picked your brains some time ago in connection with his book, if you recall. He introduces the series by taking the audience through the context of the trial. I had to smile at two places, first finding out he used to work at Microsoft as a kid, and second, where he says that in ten years we'll be reuniting to remember the SCO v. IBM case.


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