Deposition of Bill Gates
August 28, 1998, Part A, Page 4
On Wednesday, April 28, 1999, the official transcript of the
1 MR. BOIES: Okay. I'll try to do it. 2 Q. Actually, I think probably the word 3 "content providers" was not used, but the word 4 "content" was used by the witness and I think it was 5 used in the context of answering the question. 6 THE WITNESS: If you're actually 7 interested, it's the "use IE" where you seem to be 8 confused about what content providers do. There is 9 no question about what content provider means. When 10 you say "use IE," it's people who view content who 11 use IE. 12 Q. BY MR. BOIES: Right. And in order for 13 somebody to view content through IE, that content has 14 to be put someplace to begin with; right? 15 A. Yes. 16 Q. And one of the things that Microsoft 17 has tried to do is it has tried to convince content 18 providers to put content places and in a way so that 19 it was more attractive to view that content using IE 20 than with Netscape's browser; correct, sir? 21 A. It's not the places that make it 22 attractive. It's the way they use the HTML. 23 Q. What you've tried to do, what Microsoft 24 has tried to do, is get content providers to display 25 information in a way that would make it more 361 1 attractive to a user to view that content using IE 2 than using Netscape Navigator; correct, sir? 3 A. No. We tried to get them to author it 4 in a way that they exploit our HTML extensions. 5 Author. 6 Q. And is the effect of that to make it 7 more attractive for users to view the content using 8 IE than Netscape Navigator? 9 A. It totally depends on what they do -- 10 what Netscape Navigator does with HTML extensions and 11 what that content provider does with those HTML 12 extensions. 13 Q. Let me ask what I think is a simple 14 question. Has Microsoft made an effort to get 15 content providers to agree to display information in 16 a way that makes that information more attractive 17 when viewed by the then existing Internet Explorer 18 than if viewed by the then existing Netscape browser? 19 A. Our efforts have been focused in 20 getting them to author so that it looks good in 21 Internet Explorer. These people are authors. They 22 don't do display, they do authoring. 23 Q. Let me try to use your words and maybe 24 that will move it along. 25 Have you tried -- has Microsoft tried 362 1 to get content providers to agree to, in your words, 2 author information and data in a way so that that 3 information and data is more attractive to users when 4 viewed through the then current version of Internet 5 Explorer than when viewed through the then current 6 version of Netscape's browser? 7 A. Our attempts to convince people to 8 author using our extensions is not relative to 9 Netscape. It's just a question of can we convince 10 them to use our extensions. And yes, we have 11 endeavored to convince them to use our extensions, 12 but that doesn't say anything about what they're 13 doing or how that stuff looks in Netscape. 14 Q. Are you saying that your effort to 15 convince content providers to use your extensions was 16 unrelated to what the effect would be on Netscape? 17 A. The effect on Netscape would be 18 indirect. Our intent in doing that was to increase 19 the popularity of our products. 20 Q. Was part of your objective also to 21 decrease the popularity of Netscape products? 22 A. Our intent was to increase the 23 popularity of our products. 24 Q. I'm asking a different question. The 25 answer may be simply no, but I'd like to have an 363 1 answer to my question, which is that in addition to 2 trying, as you say you were trying to, to increase 3 the popularity of your products, were you also trying 4 to decrease the popularity of Netscape products? 5 A. All of our effort was aimed at making 6 our product more popular. There may have been an 7 indirect effort in terms of their people choosing our 8 product over other people's products, but the focus 9 is on making our product more attractive. 10 Q. Did you enter into agreements with 11 content providers that limited the ability of those 12 content providers to make their content more 13 attractive when viewed through Netscape's then 14 current browser? 15 A. I'm not familiar with agreements that 16 we had with content providers. 17 Q. You're not familiar with them at all; 18 is that what you're saying? 19 A. I know that we had some, so I'm 20 familiar with their existence. I've never read one, 21 I've never seen one, I've never negotiated one. 22 Q. Have you ever discussed with anyone the 23 substance of what is in them? 24 A. What I know about them is that they -- 25 they're related to the efforts to convince people to 364 1 take advantage of extensions we've done that make 2 those extensions worthwhile to end users. 3 Q. My question now is whether you've ever 4 discussed the substance of what's in those agreements 5 with anyone. And if you have -- 6 A. To the degree I just described them, 7 yes. Beyond that, no. 8 Q. With whom did you have those 9 discussions? 10 A. Oh, it would have been in meetings with 11 various people. You know, Brad Chase, Paul Maritz. 12 Brad Silverberg in a certain period of time. 13 Q. And did they ever tell you that these 14 agreements with content providers limited what the 15 content providers could do with Netscape? 16 A. I don't think so. 17 Q. Do you know, as you sit here now, 18 whether any of the agreements that you entered into, 19 Microsoft entered into with content providers over 20 the last three years limited what those content 21 providers could do with Netscape? 22 MR. HEINER: This question now is, 23 perhaps intentionally, quite a bit broader than the 24 original question about extensions and so forth? Or 25 maybe it's not intentional. 365 1 MR. BOIES: It is a different question. 2 And if the witness doesn't understand it, I'll 3 rephrase it. 4 THE WITNESS: I know that when I was 5 going to testify in Washington, D.C. in the Senate, 6 that Netscape or someone was raising these content 7 provider agreements in an effort to create some 8 controversy around them. And so I was given like a 9 paragraph or two summary. And there were about 40 10 issues in general there, but one of the issues was 11 related to those agreements. And so there may have 12 been something in those paragraphs about the 13 agreements beyond what I knew about them earlier. 14 Q. BY MR. BOIES: But you don't recall the 15 substance of that now; is that what you're saying? 16 A. Well, I can tell you there was 17 something about in a period of time a certain class 18 who is on our channel bar, they could appear on 19 competitive channel bars, but if they -- they could 20 only pay us. There was something like that. 21 Q. That's an interesting one for you to 22 focus on. Can you think of any reason why you would 23 want content providers to agree that they would not 24 pay Netscape any money? 25 A. I know that we had hopes that the 366 1 channel bar would get some usage and we wanted to 2 work with some content providers to show off the 3 channel bar. And I can't give you the reasoning 4 behind any part of the ICP agreement because I wasn't 5 involved in those. 6 Q. But what I'm asking you now is whether 7 you, as you sit here now, can think of any legitimate 8 reason why Microsoft would be getting content 9 providers to agree not to pay Netscape? I'm not 10 talking about getting them to try to use your channel 11 bar. I'm talking about getting them to agree not to 12 pay Netscape. 13 A. You'd have to ask somebody else why 14 they put that in the agreement, unless you're asking 15 me to speculate wildly. 16 Q. Well, I don't know whether it would be 17 wild speculation or not, but I'm asking you whether 18 you, as you sit here now, as the chief executive of 19 Microsoft, can think of any legitimate reason for 20 Microsoft getting content providers to agree not to 21 pay Netscape? 22 MR. HEINER: Object to the question as 23 lacking foundation. 24 THE WITNESS: I'm not aware of any 25 broad prohibition against paying Netscape for 367 1 anything. I think there was something about relative 2 to the channel bar, we wanted some of the premier 3 partners, which is a very small number, to talk about 4 their work with us. And it would have been 5 embarrassing if all those same people were in the 6 same relationship with Netscape in that time period. 7 Q. In your answer in which you said that 8 you thought you recalled some of the things that you 9 were told in preparation for your hearing testimony, 10 you were the one, were you not, just a few minutes 11 ago who said that you recalled that there was some 12 provision that even if the content provider was on 13 another channel bar, they couldn't pay for it? Do 14 you recall saying that just a few minutes ago? 15 A. Uh-huh. 16 Q. You've got to say yes so the 17 reporter -- 18 A. Yes. 19 Q. Now, that's what I'm asking about. 20 What I'm asking is whether you can think of any 21 legitimate reason why Microsoft would get a content 22 provider to agree not to pay Netscape? 23 A. I can guess about that if you want. 24 Q. What I'm asking is not whether you can 25 guess why you did it because we could all guess maybe 368 1 why you did it. What I'm asking is whether you can 2 think of any legitimate reason that would justify 3 doing that? 4 A. Sure. 5 Q. What? 6 A. Well, someone might have said, gee, it 7 would be embarrassing if all these same people 8 appeared in Netscape's equivalent in that time 9 period, let's have them agree not to appear at all. 10 And then someone else might have said no, let's not 11 be that restrictive, let's just make it less likely 12 they will appear by saying that they won't pay 13 Netscape to appear. 14 Q. But if you're going to let them appear, 15 why would you try to stop them from paying to appear? 16 A. It lowers the probability that they 17 will appear. 18 Q. And why does it do that, sir? 19 A. Because there's lots and lots of 20 content providers. And so in the channel bar, these 21 gold or premier or platinum -- I forget the 22 terminology -- slots, there's only visually, at least 23 in the way we did it, room for about five or six of 24 those. And so if you have a contract that says that 25 they won't take money from Netscpae to appear on 369 1 their channel bar, given the broad universe of 2 content providers that are out there, it's very 3 likely that Netscape will choose to pick people who 4 do pay them to be in their channel bar and therefore 5 you've lowered the probability that all the people 6 who appear in yours also appear in Netscape's. 7 Q. So that precluding people from paying 8 was an indirect way of trying to make sure that they 9 didn't appear on Netscape's channel bar; is that 10 right? 11 A. No. Now you've changed things. I've 12 told you I don't know why the provision was put in 13 there. You asked me if I could think of any set of 14 reasoning behind it, and which I did, and then you 15 changed and asked me a question about the history, 16 which again, I can't talk to you about the history. 17 Q. And I don't mean to be asking just 18 about the history. What I mean to be asking is 19 whether you, as the chief executive officer at 20 Microsoft -- and you testified yesterday about some 21 practices that you thought were consistent and some 22 practices that you thought were inconsistent with 23 company policy. And is it consistent with company 24 policy, let me approach it this way, to get companies 25 like content providers to agree not to pay 370 1 competitors, is that consistent with company policy 2 if that was done? 3 MR. HEINER: Objection. 4 THE WITNESS: Well, our company policy 5 is that when we're doing agreements, we rely on the 6 expertise of our law and corporate affairs department 7 to look at those and make sure that they're 8 appropriate. That's one of the things that's done in 9 agreements like that. 10 Q. BY MR. BOIES: Well, other than 11 whatever your lawyers tell you that you can do, which 12 I don't want to ask about because I think they will 13 probably object that it's privileged, do you have a 14 company policy that addresses the issue of whether it 15 is appropriate for Microsoft people to enter into 16 agreements that limit companies from doing business 17 with Microsoft's competitors? 18 A. There is no general policy that covers 19 that area. As I said, the very competent staff we 20 have is involved in reviewing agreements we reach. 21 Q. Did you ever have any conversations 22 with anyone about whether or not they could deal with 23 a competitor of Microsoft? 24 A. That's open ended enough that I'm not 25 sure what you mean at all. 371 1 Q. I mean to keep it open ended as an 2 initial question and then if you say no, I don't have 3 to go through it, but if you say yes, then I go 4 through who you met with and what you said. 5 MR. HEINER: Let's have the open-ended 6 question read back, if we could. 7 (The record was read as follows: 8 "Q. Did you ever have any conversations with 9 anyone about whether or not they could deal 10 with a competitor of Microsoft?") 11 THE WITNESS: I'd say the answer is 12 probably yes because, for example -- 13 Q. BY MR. BOIES: If the answer is yes, 14 then -- 15 A. No, I want to make -- I think I should 16 give an example so you understand how I've 17 interpreted your question. 18 Q. Could you give me a specific example? 19 A. Yes. IBM is a competitor of ours and 20 people have said to me should we fly out and meet 21 with IBM on this topic. And I've said in some cases 22 yes, we should and in some cases no, we shouldn't. 23 So that's a case where I was giving people advice on 24 whether they should deal with a competitor of 25 Microsoft. 372 1 Q. Were these people within Microsoft? 2 A. People -- yes. 3 Q. Now, have you ever had any personal 4 conversations with anyone other than a Microsoft 5 employee as to whether that person's company could or 6 should deal with a competitor of Microsoft? 7 A. Well, in terms of should, I might have 8 said to somebody that -- 9 Q. No, no. I'm not asking what you might 10 have said. What I'm asking is what you remember 11 doing. I'm trying to move this along. I'm trying to 12 stay as concrete as I can and I'm not asking you to 13 speculate about what you might have done. 14 A. Okay. I know -- 15 Q. I'm asking you what you remember doing. 16 A. I know concrete cases where I've told 17 customers that I think picking our product as opposed 18 to a competitor's product is in their best interests 19 and so they should pick our product. And in that 20 sense, yes. 21 Q. Have you told people that if they pick 22 your product, they can't use a competitor's product? 23 A. If there's a technical issue about how 24 things won't work together, possibly. But otherwise, 25 no. 373 1 Q. Do you know a Mr. Poole who works at 2 Intuit? 3 A. No. 4 Q. You do not? 5 A. No. I think you're confused. 6 Q. You may be right, but all I need to do 7 is get your testimony down and then people can judge 8 for themselves. 9 So it is your testimony that you do not 10 know anyone who works at Intuit who is named 11 Mr. Poole. Do you know somebody at Microsoft who 12 deals with Intuit who is named Mr. Poole? 13 A. Yes. It's quite distinct. 14 Q. Yes. The distinction actually is at 15 the heart of what I'm going at, sir. 16 What is Mr. Poole's first name? 17 A. Will. That's at least what he goes by. 18 Q. And what has Mr. -- what is Mr. Will 19 Poole's title? 20 A. I have no idea. 21 Q. You have dealt directly and personally 22 with Mr. Poole, have you not, sir? 23 A. Not until very recently. 24 Q. When was the first time that you dealt 25 directly and personally with Mr. Poole? 374 1 A. Well, if you mean was he ever on an 2 e-mail that I went back and forth on, that probably 3 goes back -- that could be any time in the last few 4 years. In terms of actually being in a meeting that 5 Will was in, I think that's quite recent. 6 Q. When? 7 A. Which? 8 Q. Both. 9 A. I said in terms of e-mail, that would 10 be the last couple years. How can I be more concrete 11 than that? I answered the question. 12 Q. Can you be more concrete than the last 13 couple years? 14 A. No. 15 Q. Okay. Now, when with respect to the 16 meeting? 17 A. I don't think I was in a meeting that 18 he was in until maybe two or three months ago. 19 Q. Did you ever have a discussion with 20 Mr. Poole, either orally or through an e-mail, in 21 which you told Mr. Poole what the conditions were 22 pursuant to which Microsoft would give Intuit access 23 to a position on the Active Desktop? 24 A. There may have been mail on that 25 general topic, but I don't remember any specific 375 1 mail. 2 Q. Did you have any discussions with 3 Mr. Poole, apart from e-mail? 4 A. No. 5 Q. Did you tell Mr. Poole in words or in 6 substance that Intuit could get access to a position 7 on the Active Desktop only if it would agree not to 8 deal with Netscape? 9 A. There may have been some discussion 10 about whose browser technology Intuit chooses to 11 integrate its products with. There certainly wasn't 12 anything broadly about dealing with Netscape. 13 Q. Let me try to be as precise as I can. 14 Did you tell Mr. Poole in words or in substance that 15 if Intuit wanted to have access to a position on the 16 Active Desktop, Intuit would have to agree to use 17 Microsoft's browser technology and not use Netscape's 18 browser technology? 19 A. I don't remember that specifically, but 20 I do know that we were, in various time periods, 21 endeavoring to get Intuit to choose the component 22 ties to IE technology as the way that Quicken -- the 23 default way that Quicken would bring up a browser. 24 In fact, they've always supported both browsers at 25 all times. 376 1 Q. My question to you is whether you told 2 Mr. Poole either orally or through e-mail that in 3 order for Intuit to get access to a position on the 4 Active Desktop, Intuit would have to agree not to use 5 the Netscape browser technology? Did you tell 6 Mr. Poole that orally or through e-mail? 7 A. I know we were talking with Intuit 8 about using IE as the default browser because of our 9 technology. So in that sense of being a default, we 10 were trying to get them to favor IE. But I don't 11 remember any specific thing beyond that. 12 Q. So is it your testimony that you do not 13 remember telling Mr. Poole in words or in substance 14 that if Intuit was to have access to a position on 15 the Active Desktop, Intuit would have to agree not to 16 use the Netscape browser technology? 17 A. Intuit has supported the Netscape 18 browser technology at all times and I never thought 19 there was any chance of avoiding them supporting the 20 Netscape browser technology. I did think there was a 21 chance that we would become the default and I was 22 hoping we could convince them that it made sense for 23 them to make us the default. 24 Q. Default browser? 25 A. That's right. 377 1 Q. I understand that's what you said and I 2 do want to explore that, but I want to first be clear 3 that it is your testimony that you never told -- or 4 at least you don't recall ever telling Mr. Poole in 5 words or in substance that in order to get access to 6 a position on the Active Desktop, Intuit would have 7 to agree not to deal with Netscape or not to use the 8 Netscape browser technology? 9 A. I don't remember using those exact 10 words. 11 Q. How about substance? 12 A. In terms of substance, my desire to get 13 us to be the default did imply a favorable position 14 for us relative to other browsers. 15 Q. Is it fair to say that your position 16 with respect to wanting to become the default browser 17 for Intuit meant that the Microsoft browser would 18 have a more favorable position, but it would not 19 preclude Intuit from dealing with Netscape; is that 20 correct? 21 A. That's right. 22 Q. Now, I want to follow up on that issue, 23 but before I do, I want to be absolutely certain that 24 I have your testimony now clear. And that is, 25 leaving aside the issue of becoming the default 378 1 browser, did you ever tell Mr. Poole in words or in 2 substance that in order for Intuit to have access to 3 a position on the Active Desktop, Intuit would have 4 to agree not to deal with Netscape or not to use the 5 Netscape browser technology? Did you ever 6 communicate that to Mr. Poole in words or in 7 substance? 8 A. You can't leave out the idea of the 9 default browser. It's nonsensical to say did you do 10 that but leaving out the notion of the default 11 browser. The substance of us being the default 12 browser is that that's a favorable position for our 13 browser. So what you've just asked me is 14 nonsensical. 15 Q. Does making Internet Explorer the 16 default browser preclude Intuit from dealing with 17 Netscape? 18 A. In a specific way, yes. 19 Q. In what way? 20 A. Any deal that relates to them being the 21 default browser. 22 Q. Other than a deal that involves them 23 becoming the default browser, does it preclude Intuit 24 from dealing with Netscape? 25 A. Not necessarily. 379 1 Q. So that Intuit could make Internet 2 Explorer its default browser but still deal with 3 Netscape with respect to Netscape's browser, correct? 4 A. Intuit at all times has supported the 5 Netscape browser. 6 Q. Now, I think it has to be clear from 7 what you just said that it is your view that becoming 8 the default browser does not preclude Intuit from 9 dealing with Netscape completely in terms of 10 browsers; is that fair? 11 A. Well, it was the issue that would have 12 been of the most interest to us. 13 Q. I'm not asking what the interest was 14 that you had or what the issue was that was of most 15 interest to you. What I'm asking is whether, aside 16 from the issue of the default browser, have you ever 17 told Mr. Poole in words or in substance that in order 18 for Intuit to get access to a position on the Active 19 Desktop, Intuit would have to agree not to deal with 20 Netscape or not to use the Netscape browser 21 technology at all? 22 A. That question doesn't make sense to me. 23 If you say that somebody is not the default, you're 24 certainly affecting how they deal with you on the 25 browser. 380 1 Q. Would you explain what you mean by 2 that? 3 A. We wanted to convince Intuit to make us 4 the default browser. 5 Q. And making you the default browser, 6 does that preclude them from dealing with Netscape at 7 all in terms of browsers? 8 A. Not in every respect, no. 9 Q. Okay, not in every respect. 10 Did you ever tell Mr. Poole in words or 11 in substance that if Intuit was going to obtain 12 access to a position on the Active Desktop, Intuit 13 would have to stop supporting the Netscape browser? 14 A. Well, supporting can mean a lot of 15 different things. I know that -- 16 Q. I mean what you mean when you said it. 17 A. I never expected at any time that they 18 would not support the Netscape browser in terms of 19 running with it, working with it, supporting it and 20 all those things. In terms of did I use that 21 specific word, no, I don't -- I don't have a 22 recollection. But, you know, support can mean quite 23 a few things. 24 Q. What I'm not doing right now is asking 25 what you meant by support. What I'm asking you is 381 1 whether you told Mr. Poole that. Do you understand 2 the distinction? 3 A. Did I use those words? 4 Q. That you told Mr. Poole -- 5 A. See, if you're going to ask me did I 6 use the exact words, you can ask me that question. 7 Or if you're going to ask me if I said something like 8 that, that's okay, but then I have to actually 9 understand what the words -- what you mean by the 10 words. 11 Q. Let's take it one step at a time. 12 Did you tell Mr. Poole that if Intuit 13 was to have access to a position on the Active 14 Desktop, Intuit would have to stop "supporting" or 15 could no longer "support" the Netscape browser? 16 A. What does it mean when you keep going 17 in and out of quotes like that? 18 Q. It means you used the word "supporting" 19 or you used the word "support." 20 MR. HEINER: In that case, you should 21 put the document in front of the witness. 22 MR. BOIES: I'm just asking whether he 23 ever communicated that orally or in writing or by 24 e-mail to Mr. Poole. 25 MR. HEINER: I think you twice 382 1 testified in the scope of your questions about things 2 he said. And so if you have a document, at some 3 point, just put it -- 4 MR. BOIES: I'm just asking him whether 5 he said it. 6 THE WITNESS: Whether I said what? 7 Q. BY MR. BOIES: Well, whether you told 8 Mr. Poole that if Intuit was to have a position on 9 the Active Desktop, that Intuit would have to agree 10 to stop supporting or could no longer support, that 11 is, you used the word "support," the Netscape 12 browser? Did you do that, sir, in e-mail 13 communications or orally or any other form of 14 communications to Mr. Poole? 15 A. I don't remember using those words, if 16 that's the question. 17 Q. Do you remember whether or not you used 18 those words? 19 A. No. 20 Q. Let me turn now to the substance of 21 what you told Mr. Poole. And what I'd like you to 22 describe for me in your own words is what did you 23 tell Mr. Poole, either orally or by any other form of 24 communication, Intuit would have to agree to in order 25 to get access to a position on the Active Desktop? 383 1 MR. HEINER: Objection. I may be 2 mistaken, but I think the question lacks foundation. 3 MR. BOIES: I will rephrase the 4 question. 5 Q. What, if anything, did you tell 6 Mr. Poole -- 7 A. I'm not sure if I told Mr. Poole or 8 Mr. Chase or Todd Nielson or who, but I'm sure I 9 communicated that the kind of support Intuit had been 10 giving where Netscape was the default browser, that I 11 didn't see that as consistent with agreeing with 12 them -- for them to be featured on the active channel 13 bar. 14 Q. I think that goes to what you were 15 saying before, which is that you wanted Microsoft's 16 browser to become the default browser? 17 A. That's right. 18 Q. Now, what I'm trying to do is ask 19 whether you went beyond that in talking to Mr. Poole. 20 Did you say to Mr. Poole that if Intuit is going to 21 get access to a position on the Active Desktop, 22 Intuit had to do something more than simply make IE 23 the default browser? 24 A. That was my goal there, which of course 25 would imply a change in how they'd been supporting 384 1 Netscape as the default browser. 2 Q. I understand that you said you wanted 3 IE to be the default browser and that inevitably 4 means that Netscape can't be the default browser 5 because you can only have one default browser; right? 6 A. Right. 7 Q. What I'm now asking is did you go 8 beyond that and say to Mr. Poole that if Intuit was 9 going to get access to a position on the Active 10 Desktop, Intuit would have to do something more than 11 simply make IE the default browser? 12 A. I don't think so. 13 Q. Did you ever say that to Mr. Chase or 14 to anyone else? 15 A. I don't think so. 16 Q. Or communicate it in e-mail or some 17 other communication? 18 A. I included that. So no, I don't think 19 so. 20 Q. I thought you might have included it, 21 but I wasn't sure, so I wanted to be clear. 22 MR. HEINER: If we've come to a logical 23 stopping point within this small subset of this 24 point, let's break for lunch. 25 MR. BOIES: Okay. 385 1 MR. HEINER: Okay. 2 VIDEOTAPE OPERATOR: The time is 11:54. 3 We're going off the record. 4 (Lunch recess.) 5 * * * 6 7 8 9 I hereby declare, under penalty of 10 perjury, that the foregoing answers are true 11 and correct to the best of my knowledge and 12 belief. 13 EXECUTED AT_____________, WASHINGTON, 14 this_________day of________________, 1998. 15 16 ________________________________ 17 BILL GATES 18 19 20 21 22 23 24 25 386 387 Released Pursuant to 15 U.S.C. §30
Continued on Part B, Page 1.
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