Deposition of Bill Gates
September 2, 1998, Page 3
On Wednesday, April 28, 1999, the official transcript of the
deposition of Microsoft Chairman Bill Gates was released.
1 Q. The second e-mail is an e-mail from you
2 dated December 1, 1996 at 9:24 p.m.; correct?
3 A. Yes.
4 Q. And there is a third e-mail from
5 Mr. Nehru dated November 27, 1996, at 11:54 a.m.;
7 A. Well, it's not a separate e-mail. It's
8 part of my e-mail.
9 Q. Well, sir, let me try to see if we can
10 get this straight. And we'll read this whole thing
11 into the record if we have to.
12 A. I can explain what you're confused
14 Q. I'm not confused, Mr. --
15 MR. HEINER: Gates.
16 Q. BY MR. BOIES: -- Gates. Indeed I
17 think I stated it accurately, if you want to start
18 talking about what I think. But my function is to
19 ask you questions and your function is to give me
20 answers to the questions and neither of our functions
21 are to debate the other at this point.
22 Exhibit 353 starts with an e-mail dated
23 December 1, 1996 from Mr. Ballmer to you; correct?
24 A. There's only one e-mail in here, which
25 is the one from Steve, which has two e-mails enclosed
1 in it.
2 Q. Well, what is enclosed here are two
3 additional e-mails; correct, sir?
4 A. They're part of Steve's e-mail.
5 Q. That is, Steve -- and by Steve you mean
6 Mr. Ballmer; correct?
7 A. Yes.
8 Q. -- is sending around with his e-mail
9 two earlier e-mails; correct?
10 A. They're part of his e-mail.
11 Q. When you say they're part of his
12 e-mail, he didn't write them, did he, sir?
13 A. No, but they're part of his e-mail.
14 Q. That is, he is sending them around?
15 That's what I said three times. He is sending them
16 around with his e-mail. He wrote something and in
17 addition to what he wrote, he is sending around what
18 two other people wrote earlier; correct, sir?
19 A. It's part of his communication. It's
20 not separate.
21 Q. I don't know what you mean by part or
22 separate and neither one of those were in my
23 question, Mr. Gates. My question is, Mr. Ballmer
24 wrote an e-mail that he sent around and with that
25 e-mail he sent around two earlier e-mails; that's
1 clearly what's going on here; right, sir?
2 A. He only sent one thing.
3 Q. All right, sir. The first line on
4 Exhibit 353 says "Leslie Halverson (LCA)"; correct,
5 Mr. Gates?
6 A. Yes.
7 Q. Okay. The next line says "From: Steve
8 Ballmer." The next line says, "Sent: Sunday,
9 December 1, 1996, 9:25 p.m." and then "To: Bill
10 Gates, Amar Nehru."
11 A. Does yours say 9:25?
12 Q. Well, on 353 it looks like 9:26.
13 A. Right. And you said 9:25.
14 Q. Okay, then I misspoke. With that
15 amendment, it is correct, though; correct?
16 A. That's right.
17 Q. And it then goes down six more lines
18 and then there is a line that says "Original
19 Message;" correct?
20 A. Right.
21 Q. And that says "From: Bill Gates,"
23 A. That's right.
24 Q. And it says you sent it Sunday,
25 December 1, 1996 at 9:24 p.m.; correct?
1 A. That's right.
2 Q. And then it goes down one, two, three,
3 four, five, six, seven, eight, nine, ten lines and
4 then there is another line that says "Original
5 Message;" correct, sir?
6 A. That's right.
7 Q. And that says it is from Mr. Nehru;
9 A. Yes.
10 Q. And it says it was sent on Wednesday,
11 November 27, 1996 at 11:54 a.m.; correct, sir?
12 A. Right.
13 Q. Now, the portion that follows your line
14 that says, "I don't think this analysis needed to be
15 sent to so many people," that's the last line before
16 the line that says "Original Message" from Mr. Nehru;
18 A. That's right.
19 Q. Everything after your line saying
20 "I don't think this analysis needed to be sent to so
21 many people" has been blocked out on Exhibit 380,
22 correct, and replaced with a stamp that says
23 "Privileged Material Redacted"?
24 A. Do I still have 380?
25 Q. Unless you have eaten it. It was the
1 one we just marked a few moments ago, a few minutes
3 MR. HEINER: It's gone.
4 Q. BY MR. BOIES: In any event, your
5 counsel has in front of him another copy of it.
6 A. Yes.
7 Q. And we'll use that copy.
8 A. Yeah, it looks like they're the same
9 except that they deleted the part of my message where
10 I enclosed the information from Amar.
11 Q. When you say you enclosed the
12 information from Amar, you mean where you enclosed
13 Mr. Amar's e-mail?
14 A. As part of my e-mail.
15 Q. In haec verba?
16 MR. HEINER: Don't use that.
17 Q. BY MR. BOIES: Word for word?
18 A. Yes, it appears to be his e-mail word
19 for word.
20 Q. Okay. I was just trying to make sure
21 the record is clear.
22 MR. HEINER: I'm ready for a break if
23 you're about to get into the more interesting part.
24 MR. BOIES: We can take a break.
25 VIDEOTAPE OPERATOR: The time is 10:38.
1 We're going off the record.
3 VIDEOTAPE OPERATOR: The time is 10:59.
4 We're going back on the record.
5 Q. BY MR. BOIES: The November 27, 1996
6 Nehru e-mail that you sent around is headed "Netscape
7 Revenues;" correct, sir? And it is a discussion of
8 an analysis of Netscape's revenues?
9 A. I didn't send it around. Amar sent it
10 around. I enclosed it.
11 Q. I thought we established that you then
12 sent it around.
13 A. I enclosed it, yes.
14 Q. When you say you enclosed it, that
15 means it's enclosed with what you have written so
16 that it goes around to everybody that your e-mail is
17 directed to; correct?
18 A. Well, Amar had already sent it to quite
19 a large superset of the people I copied on my e-mail,
20 so he sent it to them.
21 Q. He sent it to them and then you sent it
22 to everybody that is on the addressee or copy list of
23 your e-mail; correct?
24 A. I enclosed it to those people who had
25 already all gotten it from Amar.
1 Q. And by enclosing it means you sent it
3 A. That's not the word I would use, but it
4 was enclosed in the e-mail I sent to those people who
5 had already received it directly from Amar.
6 Q. So when people got your e-mail -- all
7 I'm trying to do is -- I don't think this is obscure.
8 All I'm trying to do is establish that when you sent
9 your e-mail to the five people that you sent it to,
10 with your e-mail they got Mr. Nehru's e-mail?
11 A. Which they had already gotten.
12 Q. And they got it again?
13 A. As an enclosure, yes.
14 Q. As an enclosure to your e-mail?
15 A. Right.
16 Q. And that e-mail from Mr. Nehru that you
17 enclosed with your e-mail is a discussion of
18 Netscape's revenues; correct, sir?
19 A. That's the subject line of his e-mail.
20 Q. Not only is it the subject line, that's
21 what the substance of the e-mail is?
22 A. Do you want me to look at it?
23 Q. If you need to to answer the question.
24 A. It appears to be a discussion of
25 Netscape's revenue, or what he was able to find out
1 about it at a 70 percent confidence.
2 Q. And the first line of your memo that
3 you send to the five people indicated here, including
4 Mr. Maritz and Mr. Ballmer, is "What kind of data do
5 we have on how much software companies pay Netscape?"
6 correct, sir?
7 A. Yes.
8 Q. And did they furnish you with that
10 A. I don't think so.
11 Q. You say in the next line, "In
12 particular I am curious about their deals with Corel,
13 Lotus and Intuit." Do you see that?
14 A. Uh-huh.
15 Q. You've got to say yes or no for the --
16 A. Yes.
17 Q. Did you ever receive information about
18 what revenues Netscape was getting from any of those
20 A. I'm quite sure I didn't.
21 Q. Netscape was getting revenues from
22 Intuit. You knew that in December of '96; correct,
24 A. I still don't know that.
25 Q. You still don't know that? You tried
1 to find that out in December of 1996; correct?
2 A. I did not myself try and find that out.
3 Q. You tried to find it out by raising it
4 with people who worked for Microsoft, didn't you?
5 That's what this message is?
6 A. It says I'm curious about it.
7 Q. Well, the first line says, "What kind
8 of data do we have about how much software companies
9 pay Netscape? In particular I am curious about their
10 deals with Corel, Lotus and Intuit." That's what you
11 wrote to Mr. Nehru, Mr. Silverberg, Mr. Chase,
12 Mr. Ballmer and Mr. Maritz; correct, sir?
13 A. Right, because Amar's mail didn't seem
14 to have any data about that.
15 Q. And is it your testimony that you never
16 got any data about that?
17 A. That's right. I don't remember getting
18 any data. I'm quite sure that I didn't.
19 Q. Did you follow up to try to get an
20 answer to those questions?
21 A. No.
22 Q. After December of 1996, Microsoft
23 entered into an agreement with Intuit that would
24 limit how much money Intuit paid Netscape; correct,
1 A. I'm not aware of that.
2 Q. Are you aware of an agreement that
3 Intuit entered into with Microsoft?
4 A. I know there was some kind of an
5 agreement. I wasn't part of negotiating it, nor do I
6 know what was in it.
7 Q. Do you know anything that was in the
8 Intuit agreement?
9 A. I'm quite sure that Intuit had a plan
10 to use our componentized browser. And I think in the
11 agreement they agreed to make that their default
13 Q. Do you know anything else about the
14 Intuit agreement?
15 A. Well, Mr. Houck, when he --
16 Q. Do you know anything else about the
17 Intuit agreement?
18 A. I was going to answer.
19 Q. Well, okay. I just want to be clear
20 that what I'm asking about has nothing to do with
21 what Mr. Houck knows or what Mr. Houck suggested.
22 It's what you know. Now, if Mr. Houck refreshed your
23 recollection about it, that's fine.
24 A. Let me say the sentence and then we'll
25 see what you say.
1 Q. Okay.
2 A. Mr. Houck showed me an e-mail which
3 appeared to be written by Will Poole talking about
4 his discussions with Intuit, and I could tell you
5 what I remember from that e-mail that Mr. Houck
6 showed me.
7 Q. No, because that's in the record
8 already. What I need to know is whether, based on
9 anything that Mr. Houck did or that I did -- I think
10 I actually may have showed you the e-mail you're
11 talking about, but whether it was Mr. Houck or me,
12 based on whatever happened before, do you now have a
13 recollection of the Intuit agreement other than about
14 the default browser?
15 MR. HEINER: Objection.
16 THE WITNESS: I'm confused.
17 Q. BY MR. BOIES: Okay. Let me
18 distinguish two things. I'm not asking you to try to
19 remember the e-mail that you were shown before. What
20 I'm asking is whether, as you sit here now, you have
21 a memory or recollection of the Intuit deal other
22 than that it made IE the default browser?
23 A. No.
24 Q. Now, let me go back to where I was
25 before we entered into our discussion of Mr. Nehru's
2 Other than the e-mail that you sent on
3 December 1, 1996, do you recall any other instances
4 in which you were personally asking for data about
6 A. I think I was in a meeting, a normal
7 review-type meeting, where some data on Netscape was
8 presented by Amar, and it's likely that I asked at
9 least one question during the meeting.
10 Q. Any other instances?
11 A. I think there was e-mail about a
12 specific deal that Netscape did with Citicorp in the
13 last couple months where I was curious about how much
14 Citicorp had paid. Either that or the mail just
15 included that information.
16 Q. Any other instance in which you
17 personally asked for information concerning
18 Netscape's revenues, head count, business, plans or
20 A. I remember once saying to Brad
21 Silverberg how many developers does Netscape have,
22 and being curious about that.
23 Q. Any other instances?
24 A. I think when we did geographic reviews
25 one time, I asked someone if Netscape had an office
1 in their country.
2 I think once when I was in Japan --
3 this is another instance -- I asked what the browser
4 usage share was in Japan, in particular what
5 Netscape's usage share was.
6 Q. Have you completed your answer?
7 A. Yes.
8 Q. Have you now given me all of the
9 instances that you can recall in which you have
10 personally asked for information concerning
11 Netscape's revenues or head count or dependencies?
12 A. Yes.
13 Q. Let me ask you to look at a document
14 that we will mark as Exhibit 381. The third item on
15 the first page is an e-mail from Paul Maritz to you
16 dated January 16, 1996. It is to you and a number of
17 other people, but you are the first there. Do you
18 see that?
19 A. Yes.
20 (The document referred to was marked
21 by the court reporter as Government Exhibit 381 for
22 identification and is attached hereto.)
23 Q. BY MR. BOIES: Did you receive this
24 e-mail in January, 1996?
25 A. I don't remember receiving it, but I
1 have no reason to doubt that I did.
2 Q. The second sentence of Mr. Maritz's
3 e-mail to you says, "We need to look carefully at any
4 significant opportunity to gain share versus
5 Netscape." Do you see that?
6 A. That's part of the
sentence that I see.
7 Q. The rest of the sentence says,
8 think carefully before AOL goes off and partners with
9 Netscape." Do you see that?
10 A. Yes.
11 Q. That's the rest of the sentence; right?
12 A. Right.
13 Q. Even though you don't recall receiving
14 this particular e-mail, do you recall Mr. Maritz
15 telling you in or about January of 1996 that he
16 believed that Microsoft had to look carefully at any
17 significant opportunity to gain share versus
19 A. No.
20 Q. Do you recall Mr. Maritz telling you in
21 or about January of 1996 that there was a possibility
22 that AOL was going to go off and partner with
24 A. I don't know the time frame, but I know
25 there was -- there came a time where AOL was
1 considering whether to keep doing their own browser
2 technology or work with someone else on that.
3 Q. And is that your understanding of what
4 Mr. Maritz was referring to when he talks about AOL
5 going off and partnering with Netscape?
6 A. It appears to be a mail about -- let me
7 take a look at it.
8 It appears to be a mail about OEMs
9 prominently featuring the AOL client in such a strong
10 way that anything we would do for AOL in that regard
11 would be of no impact and, therefore, that maybe we
12 should work with AOL on the browser.
13 MR. BOIES: Could I have that answer
14 read back.
15 (Record read.)
16 MR. BOIES: And would you read my
17 question back, please.
18 (Record read.)
19 THE WITNESS: Well, having read the
20 mail, my best guess is that he is talking about the
21 browser, but it's just a guess reading the e-mail.
22 Q. BY MR. BOIES: Well, when you say that
23 your best guess is he is talking about the browser,
24 you mean in his e-mail that this is about a browser?
25 A. About working with AOL on browsing
2 Q. Well, do you have any doubt that this
3 is related to browsers, sir?
4 A. It's certainly part of what it's about.
5 Q. When Mr. Maritz says, "We need to look
6 carefully at any significant opportunity to gain
7 share versus Netscape," he is talking about browser
8 share, is he not?
9 A. Almost certainly.
10 Q. And as you've previously pointed out,
11 part of the same sentence is that he says that it's
12 important to "think carefully before AOL goes off and
13 partners with Netscape." Do you see that?
14 A. I see it.
15 Q. And when he is talking about going off
16 and partnering with Netscape, he is talking about AOL
17 partnering with Netscape relating to browsers;
19 A. As I said, I'm not certain what he
20 means, but from reading the e-mail, certainly
21 browsers is part of what he is talking about, it
23 Q. And in response to this issue, did
24 Microsoft go off and partner with AOL with respect to
1 A. In response to what?
2 Q. In response to the thing that
3 Mr. Maritz writes to you in January of 1996, that he
4 wants to look carefully at any significant
5 opportunity to gain share versus Netscape and AOL is
6 thinking about going off and partnering with
8 MR. HEINER: Objection.
9 THE WITNESS: The reason we did enter
10 into some partnership activities with AOL is in order
11 to let them take advantage of some of the innovations
12 we'd done in browsers and get broader exposure of the
13 work that we'd done there.
14 Q. BY MR. BOIES: And did you enter into
15 partnership relationships with AOL concerning
17 A. We entered into a partnership, a
18 primary element of which was working together to make
19 the Windows browsing technology meet AOL's needs.
20 Q. And was one of the reasons that you did
21 that to try to gain share versus Netscape?
22 A. Our goal was certainly to improve the
23 exposure of our innovation and therefore the usage
24 share of IE.
25 Q. Now, when Mr. Maritz writes to you, he
1 is not writing about gaining exposure for your
2 innovations, he is writing about gaining share versus
3 Netscape; correct, sir?
4 A. Are we back to focusing on this piece
5 of e-mail here?
6 Q. I don't know what you mean by "back
7 to," but in January of 1996, Mr. Maritz writes to you
8 about pursuing any significant opportunity "to gain
9 share versus Netscape." Do you see that sir?
10 You said you didn't have any doubt that
11 you'd read this; correct?
12 A. I have no reason to doubt that I
13 received it.
14 Q. Do you doubt that you received it?
15 A. No.
16 Q. Okay. So you accept you received this
18 A. I said I had no reason to doubt that I
19 received it.
20 Q. And you also said you don't doubt it?
21 A. I don't know for sure that I received
22 it because I don't remember specifically receiving
24 Q. Let me put it this way. As you sit
25 here now, you believe you received it, don't you,
1 Mr. Gates?
2 A. I believe it's more likely than not
3 that I received this e-mail.
4 Q. As you've described previously in the
5 deposition, can you give me any probability greater
6 than that?
7 A. I think it's very likely.
8 Q. Okay. Now, in this e-mail that it is
9 very likely that you received in January of 1996,
10 Mr. Maritz writes that you need to look carefully at
11 any significant opportunity to gain share versus
12 Netscape and you need to think carefully before AOL
13 goes off and partners with Netscape.
14 Was the desire to gain share versus
15 Netscape part of what led Microsoft to itself partner
16 with AOL with respect to browsers?
17 MR. HEINER: Objection. Asked and
19 THE WITNESS: Our goal was to raise the
20 usage share of our Internet Explorer technologies in
21 Windows and that's the reason we did the agreement
22 with AOL.
23 Q. BY MR. BOIES: Now, when you refer to
24 gaining things in Windows, the documents that talk
25 about browser share don't talk about gaining share
1 for Windows, do they, sir?
2 A. They talk about gaining share for the
3 IE part of Windows.
4 Q. Well, they don't even talk about
5 gaining share for the IE part of Windows. Have you
6 seen any documents that talk about gaining share for
7 the IE part of Windows?
8 A. Well, certainly if you're talking about
9 e-mail within Microsoft, we all know that IE is a
10 part of Windows and so we don't bother, for any
11 feature that we're studying usage of, to restate "and
12 that feature is a part of Windows." We simply refer
13 to the feature.
14 Q. IE is distributed other than as part of
15 Windows, is it not, sir? It's distributed
17 A. It's a different thing we do, which is
18 we create an IE for Macintosh that shares some of the
19 same code as the IE capabilities that are in Windows.
20 MR. BOIES: Would you read back the
21 question, please.
22 (Record read.)
23 Q. BY MR. BOIES: Can you answer that
24 question, sir?
25 A. We take a subset of the IE technologies
1 that are in Windows and create something independent,
2 which is the IE for Macintosh, although there is a
3 lot of unique code that is written for that work.
4 And we also create it for Unix as well.
5 Q. When you look at your browser share, do
6 you include in your browser share the usage of IE
7 browsers that are used on Macintosh?
8 A. Sometimes yes and sometimes no. You
9 can add those numbers together and sometimes we do
10 that. You can track the numbers separately and we've
11 certainly done that as well.
12 Q. When you talk about your IE browser
13 share without further elaboration, is that including
14 your IE usage on Macintosh or not?
15 A. Highly ambiguous.
16 Q. When you receive discussion of
17 Microsoft's browser share without further
18 elaboration, how do you understand those references?
19 Do you understand those references to include your
20 usage on Macintosh or not to include IE's Macintosh
22 A. I'd have to look at the reference. If
23 they say Windows, then they don't include Macintosh.
24 If they just say it without mentioning Windows, it's
25 not clear whether they're including the Macintosh
1 usage or not.
2 Q. Have you ever asked someone who wrote
3 you just talking about browser share whether they
4 were talking about browser share including Macintosh
5 or not?
6 A. Yes, I believe I have.
7 Q. Who did you ask that of?
8 A. I'm sure I sent mail and probably
9 included Brad Chase as one of the people I would
10 have, in responding to something like that, included.
11 Q. What was the response?
12 A. I'm sure they clarified which numbers
13 referred to the IE usage from within Windows 95 and
14 which referred to the IE offering we make on the
16 Q. And with respect to Exhibit 381, the
17 January, 1996 message from Mr. Maritz to you where he
18 is talking about gaining share versus Netscape, does
19 that include usage share on Macintosh or not?
20 A. It's not clear at all.
21 Q. Do you have any understanding as to
22 what he meant by that?
23 A. Whether he included the Macintosh share
24 or not, is that the question?
25 Q. Yes.
1 A. No, I don't know.
2 Q. When IE share is discussed within
3 Microsoft, that share is discussed as a share of
4 browsers, is it not, sir? Those are the words that
5 are used? Whatever they may mean, whatever you say
6 they may mean, that's the words that are used; is
7 that correct, sir?
8 A. We're talking about --
9 MR. HEINER: Objection. Sorry. Go
11 THE WITNESS: We have data about the
12 usage levels of various browsers and we look at
14 MR. BOIES: Could I have the question
15 read back, please.
16 (Record read.)
17 THE WITNESS: I've never heard anyone
18 say it's discussed as a share of browsers. What the
19 heck would that mean?
20 Q. BY MR. BOIES: Well, if your answer is
21 that you have never heard of that, that's your
22 answer, Mr. Gates.
23 A. I don't know what you mean "as a share
24 of browsers." I've never heard of anybody use the
25 phrase "as a share of browsers." I don't know what
1 it would mean.
2 Q. So it's your testimony as you sit here
3 under oath that if somebody asked you that question
4 or said something like that within the course of your
5 business, you just wouldn't have any idea what it
6 meant? That's your testimony?
7 A. I would certainly seek clarification of
8 what they were trying to say. I'd have an idea they
9 were referring to something to do with the Internet,
10 something to do with browsers, so I'd certainly have
11 some idea, but I'd seek clarification before I could
12 communicate effectively with them.
13 Q. Have you ever sought clarification from
14 anyone on that?
15 A. I told you I've never heard that term
16 used in my recollection.
17 Q. When you said in the exhibit we were
18 talking about that browser share was a very very
19 important goal -- do you remember that document?
20 A. Which exhibit are you referring to? Is
21 there a number?
22 Q. I'm sure we can find the number, but
23 since I know you have very good memory about these
24 exhibits since you remembered Exhibit 353 from
25 several days ago, do you remember the document we
1 were talking about this morning?
2 A. I remember many documents that we were
3 talking about this morning.
4 Q. Do you remember a particular document
5 in which you were writing that browser share is a
6 very very important goal for Microsoft?
7 A. Yes.
8 Q. Let me see if I can get you to look at
9 Exhibit 358. Now, when you personally were talking
10 about winning Internet browser share, Mr. Gates, what
11 were you talking about there?
12 A. I'm not sure. If I had to guess, I'd
13 say this e-mail appears to be in the context of
15 Q. So what you're saying is that in this
16 context you were including only usage share on
17 Windows; is that what you're saying?
18 A. Well, it's interesting because I say
19 here, "I would like to understand what we need to do
20 to convince OEMs to focus on our browser. Is our
21 problem proving our technology and its capability?
22 Is our problem that they are getting bounty fees by
23 having Internet Service providers pay them a sum or a
24 royalty on the business they get? Is a 3.1 browser a
25 key issue for them?" So except for that sentence, I
1 would have thought it was mainly Windows 95 share of
2 browser usage, but when I say "Is a 3.1 browser a key
3 issue for them," I'm talking about something else.
4 Q. So is it your testimony you're just, as
5 you sit here now, confused as to what you were
6 talking about?
7 A. I think it's likely I was referring to
8 usage on Windows 95, but that one sentence throws me
10 Q. Prior to the time that Windows 98 --
11 not Windows 95 -- Windows 98 came out, what was it
12 called internally within Microsoft?
13 A. Most commonly it was called Memphis.
14 Q. Was there also a period of time where
15 it was referred to as Win 97?
16 A. It's possible. It's also possible it
17 would have been called Win 96 at some point, but the
18 primary term, the one I remember being used, was
20 Q. When you talked about in January of
21 1996 that "Winning Internet browser share is a very
22 very important goal for us," are you saying it was
23 limited to Windows 95 and perhaps earlier Windows
24 operating systems, that it did not include Memphis or
25 Windows 98?
1 A. Now you're trying to get me to indicate
2 whether I was talking about future products in this
4 Q. Well, what you talk about is winning
5 Internet browser share, and as I understood what you
6 said was that you thought that you were probably
7 talking about share of usage on Windows 95. Did I
8 understand you correctly?
9 A. I think you're making a good point that
10 the future products that -- innovations that we were
11 doing in the IE thing, depending on the time frame
12 you look at, are key in -- I don't think I'm
13 referring to future products here. Do you think I
15 Q. I don't have a view on that, Mr. Gates.
16 A. Okay.
17 Q. I'm not entitled to at this stage.
18 MR. HEINER: You certainly expressed a
19 lot of views in the papers yesterday.
20 MR. BOIES: That is where we are
21 entitled to express views, in the papers we file.
22 Q. Let me approach it a little more
23 generally. In a number of questions I've asked you
24 about whether Microsoft wanted to gain browser share,
25 and you have said, well, we want to have more
1 exposure for our innovations. Are you aware of any
2 effort within Microsoft, for purposes of this
3 litigation, to sort of change the way you and others
4 use terms?
5 A. No.
6 Q. None at all, sir?
7 A. Changing the way I use terms? No.
8 Q. How about changing the way others in
9 Microsoft use terms?
10 A. I'm not aware of that, no.
11 Q. Are you aware of any discussions within
12 Microsoft about changing the way terms are used in
13 order to advance your interests in the litigation?
14 A. No.
15 Q. In your answers you refer often to
16 browser technologies or browsing technologies as
17 opposed to answering a question simply about
18 browsers. Is that related at all to avoid using a
19 term that you think connotes a separate product?
20 A. It's all done with the goal of making
21 sure you're not confused about what I'm referring to.
22 Q. Well, is it part of the goal to try to
23 advance a particular point of view in this
24 litigation, is that part of why you don't want to use
25 in this deposition words like browser that are
1 throughout the documents of the Microsoft
3 A. I'm glad to use the term browser and
4 I've used the term many times in this deposition and
5 in many other cases.
6 Q. And when you use the term browser, you
7 know what it means, do you not, sir?
8 A. When I use terms in general, I do it in
9 a context where it's clear what they mean. In the
10 case of browser, as we've discussed, sometimes it
11 might include what we're doing on Macintosh,
12 sometimes it might include one version of Windows,
13 sometimes it might include other people's products
14 that include those capabilities. Isolated by itself
15 are you saying does the word browser without any
16 context mean something that is evident to me? No,
17 but in a specific context, I freely use the word
18 without any difficulty.
19 Q. And, for example, in writing to your
20 top officers in January of 1996, you talk about
21 winning Internet browser share and you believed you
22 were being understood; correct, sir?
23 A. Are you referring to an e-mail to a
24 single person, to Joachim Kempin?
25 Q. The one I have in front of me is
1 addressed to Mr. Kempin with copies to
2 Mr. Silverberg, Mr. Chase, Mr. Ludwig, Mr. Ballmer,
3 and a number of other people.
4 A. But I think in terms of understanding
5 the context of the message, the fact that it is
6 directed to Joachim Kempin and talks about OEMs helps
7 establish what I probably meant when I talked about
8 browser share here and browsers.
9 Q. Let me just be clear. When you sent a
10 copy -- I don't want to go through all the names
11 here, but two of the people you sent copies to were
12 Mr. Ballmer and Mr. Maritz; is that fair?
13 A. Yes.
14 Q. And they were two of the very top
15 officers of Microsoft; correct?
16 A. Yes.
17 Q. Now, let me go back to what I was
18 pursuing before. Is there an effort at all on your
19 part or insofar as you are aware on other people's
20 parts, to change the way words are used so as to,
21 from your standpoint, clarify what is meant for
22 purposes of this litigation?
23 A. I've told you I'm not aware of an
24 effort to change the use of terminology related to
25 the purposes of this litigation.
1 Q. Let me ask you to look at a document
2 that has been marked as Government Exhibit 393. The
3 first e-mail here -- and there's an e-mail from you
4 later on, but the first e-mail here is an e-mail to
5 you and others dated February 15, 1998; is that
7 A. To me?
8 Q. Yes.
9 A. Yes.
10 (The document referred to was marked
11 by the court reporter as Government Exhibit 393 for
12 identification and is attached hereto.)
13 Q. BY MR. BOIES: And the subject is
14 "Re: Browser in the OS." Do you see that subject of
15 the February 15, 1998 e-mail to you?
16 A. Yes.
17 Q. And is it fair to say that that e-mail
18 is a response to an e-mail from you dated
19 February 14, 1998 at 10:42 a.m.?
20 A. It appears to be.
21 Q. And the subject of your e-mail was
22 "Browser in the OS;" is that correct?
23 A. Yes.
24 Q. Now, the next to last paragraph on the
25 first page of the memo to you -- and this memo goes
1 to you and to a large number of other people; is that
3 A. I'm sorry? I just wasn't listening
5 Q. Sure. The February 15th, 1998 memo
6 that is addressed to you also goes to four other
7 addressees and a large number of additional copies;
9 A. 13, yes.
10 Q. And this includes, together with
11 yourself, the top executives of the company; correct?
12 A. Not all the top executives, no.
13 Q. Well, it includes Mr. Ballmer?
14 A. It includes some of the top executives.
15 Q. And it includes Mr. Maritz; correct?
16 A. Yes.
17 Q. And it includes yourself; correct?
18 A. Yes, in the "To" line.
19 Q. And it says in the next to last
20 paragraph "Saying 'put the browser in the OS' is
21 already a statement that is prejudicial to us."
22 A. Where are you looking? I thought you
23 said the next to last paragraph.
24 Q. Next to last paragraph on the first
1 A. Oh, okay.
2 Q. It says -- and this is a quotation from
3 the memo to you and the others, "Saying 'put the
4 browser in the OS' is already a statement that is
5 prejudicial to us. The name 'browser' suggests a
6 separate thing."
7 Do you remember being told that in or
8 about February of 1998?
9 A. No.
10 Q. Do you remember receiving this e-mail?
11 A. I don't remember receiving it, but I
12 have no reason to doubt that it was a piece of e-mail
13 that was sent.
14 Q. Does this in any way refresh your
15 recollection that within Microsoft there were
16 discussions as to what words should or should not be
18 A. I don't know what you mean refresh my
20 Q. That is, having seen this, does this
21 make you remember something that you didn't remember
23 A. No.
24 Q. Are you aware, Mr. Gates, of any
25 documents that were destroyed or disposed of relating
1 to the subject matter of this litigation?
2 MR. HEINER: Objection. Vague and
3 ambiguous in view of the Antitrust Division's view of
4 the subject matter of the litigation, apparent view.
5 THE WITNESS: Yeah, help me out with
7 Q. BY MR. BOIES: Okay. In the last three
8 years, are you aware of any documents that have been
9 destroyed or disposed of that relate to the issue of
10 Microsoft's conduct with respect to competitors or
11 agreements that Microsoft has entered into with
12 customers or others that restrict the ability of
13 those customers or others to deal with competitors of
15 MR. HEINER: I'd like that pretty long
16 question read back.
17 MR. BOIES: Sure, absolutely.
18 (Record read.)
19 THE WITNESS: No.
20 Q. BY MR. BOIES: Microsoft has a public
21 relations firm; correct? Maybe more than one?
22 A. Yes.
23 Q. Does it have a main public relations
25 A. Yes.
1 Q. What is that firm?
2 A. Waggoner Edstrom is the name they go
3 by, I think.
4 Q. Are you aware of any document
5 destruction by or involving Waggoner Edstrom in the
6 last three years?
7 A. No.
8 Q. Are you aware of any destruction or
9 disposal of documents relating to DR DOS?
10 MR. HEINER: Objection. Vague and
12 THE WITNESS: It's possible somebody
13 once upon a time sent an e-mail message to somebody
14 else that DR DOS was part of the subject of that
15 e-mail and then the person deleted that message.
16 Q. BY MR. BOIES: When you say it's
17 possible that someone did that, were you involved in
18 that, Mr. Gates?
19 A. I doubt that every e-mail message I
20 ever received that had the word DR DOS in it, that I
21 choose to preserve forever after.
22 Q. I'm not really asking that question.
23 I'm asking whether there was ever an instance
24 involving you that met the description that you put
25 in your answer about how it may have been possible
1 that someone who sent a message that somehow related
2 to DR DOS thereafter deleted a
portion of the
3 message? Do you remember saying that just a minute
5 A. I said nothing about
a portion of the
6 message. That's a completely false thing.
7 Q. Let's read back your answer
so that we
8 don't get distracted about what the words are.
9 (The record was read as follows:
10 "Q. Are you aware of any destruction
11 or disposal of documents relating to DR DOS?
12 MR. HEINER: Objection. Vague and
14 THE WITNESS: It's possible somebody
15 once upon a time sent an e-mail message to
16 somebody else that DR DOS was part of the
17 subject of that e-mail and then the person
18 deleted that message.")
19 Q. BY MR. BOIES: So rather than deleting
20 a portion of the e-mail, you're talking about the
21 whole message being deleted; is that the point you're
23 A. That is the words I used and that's my
24 objection to your mischaracterization of what I said.
25 Q. You said it's possible that once upon a
1 time somebody sent an e-mail, part of the subject of
2 which was DR DOS, and then this someone unidentified
3 deleted the e-mail. Was that you, sir? Was this
4 someone that you're referring to you?
5 A. I think it's true in general that not
6 every message that everyone here ever received about
7 DR DOS would have necessarily been preserved by them
8 because most people here delete most of the e-mail
9 they receive every day.
10 In terms of me in particular, it's
11 possible that sometime in history -- I'd say it's
12 even likely -- I received a message about DR DOS that
13 I didn't choose to keep. I don't keep most e-mail I
15 Q. Is there a message relating to DR DOS
16 that not only did you choose to delete, but did you
17 ask somebody else to delete?
18 A. No.
19 Q. Is there any message relating to DR DOS
20 that you recall deleting?
21 A. Well, since I delete 98 percent of my
22 e-mails, I think it's likely that once there was a
23 message about DR DOS that I deleted, but I don't
24 recall any specific message.
25 Q. That's what I'm asking. I'm not asking
1 what was likely. I'm asking whether there was any
2 message, in whole or in part, relating to DR DOS that
3 as you sit here now under oath you can tell me that
4 you remember deleting or causing to be deleted?
5 A. No.
6 Q. When was the last time you think it is
7 likely that you deleted a message relating to DR DOS?
8 A. Well, I don't think I've gotten a
9 message that related to DR DOS in the last five
11 Q. Have you deleted messages not only that
12 you have received with respect to DR DOS but also
13 messages that you have sent?
14 A. I don't preserve messages that I send,
15 so there's no --
16 Q. You never preserve messages that you
18 A. I don't preserve them. There is the
19 extremely rare case, which I've done almost never,
20 where you copy yourself on the e-mail.
21 Q. And you don't either copy yourself or
22 copy some file or something like that?
23 A. No.
24 Q. I just want to be sure of your
25 testimony. Your testimony is you have never asked
1 somebody to delete a message that you have sent them
2 relating to DR DOS?
3 A. That's right.
4 Q. And that although you believe that you
5 have deleted messages related to DR DOS that you have
6 received, you can't remember actually having done
7 that and you don't remember any specific message or
8 type of message; is that correct?
9 A. That's right.
10 Q. When was the last time that you deleted
11 e-mail messages concerning Netscape?
12 A. I'm not sure.
13 Q. Approximately.
14 A. I think there was a press article about
15 Netscape that I got a message on recently that I
17 Q. How recently?
18 A. In the last few months.
19 Q. Who was the message from?
20 A. The New York Times syndicate.
21 Q. Other than that instance, can you
22 recall any instance in which you deleted e-mail
23 messages relating to Netscape in the last year?
24 A. No.
25 Q. Do you believe that there have been
1 such instances or there have not been such instances
2 or you simply don't know?
3 A. Are you including the attorney-client
4 privileged e-mail?
5 Q. I will for purposes of this question,
7 A. I don't think I've deleted, other than
8 press articles, e-mail messages related to Netscape
9 during the last year.
10 Q. Are you aware of anyone else within
11 Microsoft who has deleted e-mail messages relating to
12 Netscape in the last year?
13 A. No.
14 Q. Have you ever had any discussions with
15 anyone concerning whether or not any e-mail messages
16 relating in any way to Netscape have been deleted in
17 the last year?
18 A. No.
19 Q. Did Microsoft, insofar as you are
20 aware, make an effort to go back and research its
21 e-mails in order to find particular e-mails that
22 might be useful to it in this litigation?
23 A. I'm not aware of what might or might
24 not have been done in that connection. I know people
25 have come in and looked at my e-mail and whether
1 that's just for a request from the governments or
2 also things that they're looking for, I'm not sure.
3 Q. Would it be fair to say that no one has
4 ever communicated with you about any effort to go
5 back and research particular kinds of e-mails or
6 e-mails related to a particular subject?
7 A. You're including attorney-client
8 discussions in that?
9 Q. I am just for purposes of a yes or no
11 MR. HEINER: Objection.
12 MR. BOIES: All I want is yes or no.
13 Last time I asked him I said include attorney-client
14 and the answer was still no.
15 MR. HEINER: But it's a different
17 Can I have the question read back.
18 (Record read.)
19 MR. HEINER: I don't think you should
20 include the substance of attorney-client in that
22 MR. BOIES: I'll take the attorneys
23 out. I think -- I'll take the attorneys out.
24 Q. Other than conversations that you've
25 had solely with your attorneys, have you ever had any
1 discussions with anyone or have you ever received any
2 communications that indicated that there had been any
3 effort to go back and search e-mail messages or files
4 for purposes of this litigation?
5 A. No.
6 What time is it?
7 MR. HEINER: It's noon. Do you want to
8 take a break?
9 THE WITNESS: Probably.
10 MR. HEINER: Okay.
11 MR. BOIES: Absolutely.
12 VIDEOTAPE OPERATOR: The time is 12:00
13 noon. We're going off the record.
14 (Lunch recess.)
15 VIDEOTAPE OPERATOR: The time is 12:38.
16 We are going back on the record.
17 Q. BY MR. BOIES: Good afternoon,
18 Mr. Gates. Let me show you Government Exhibit 382
19 and I would ask you if that is a document that you've
20 ever seen before?
21 A. No.
22 (The document referred to was marked
23 by the court reporter as Government Exhibit 382 for
24 identification and is attached hereto.)
25 Q. BY MR. BOIES: There is a reference in
1 this document to "Fiscal Year 1998 WWSMM Attendees."
2 Do you see that?
3 A. Yes.
4 Q. Do you know what that is?
5 A. Yes.
6 Q. What is it?
7 A. World-wide sales and marketing meeting,
8 otherwise known as the WWSMM.
9 Q. Did you attend the fiscal year 1998
11 A. No, I don't attend that. I come in and
12 speak usually at the end of it, but I don't attend
14 Q. The subject matter of this is the
15 "Fiscal Year 1998 Planning Memo 'Preserving the
16 desktop paradise.'"
17 Are you familiar with that?
18 A. I don't know what you mean am I
19 familiar with that. I know fiscal year '98.
20 Q. Have you ever seen the Fiscal Year 1998
21 Planning Memo?
22 A. The one from Brad Chase? No.
23 Q. Have you seen a Fiscal Year 1998
24 Planning Memo from somebody else?
25 A. There's a lot of these. Each group
1 writes planning memos. I'm not copied on most of
3 Q. Are there planning memos from some of
4 the groups that you recall receiving for fiscal year
6 A. I think there's a memo Steve wrote that
7 was probably sent to me.
8 Q. And by Steve you're referring to
9 Mr. Ballmer?
10 A. Yes.
11 Q. In the third paragraph of this memo on
12 the first page it says "Our competitors are still
13 hard at work trying to obsolete Windows. More people
14 than ever now believe they will. Netscape and Sun
15 endeavor to commoditize the OS."
16 Do you know what is meant by
17 "commoditize the OS" in this context?
18 A. In the context of this memo?
19 Q. Yes.
20 A. I'd need to read the memo.
21 Q. Have you ever heard anybody say that
22 Netscape or Sun threatened to commoditize the
23 operating system?
24 A. Yes.
25 Q. Have you ever said that?
1 A. Those words?
2 Q. Yes.
3 A. I don't think so.
4 Q. When other people have said those
5 words, what have you understood them to mean?
6 A. I think the first time I heard that was
7 from Marc Andreessen. And I never had a chance to
8 ask him what he meant.
9 Q. Have you heard those words from people
10 within Microsoft?
11 A. Subsequently to Andreessen using those
12 words, I know they were repeated inside the company
13 quite a bit.
14 Q. Did you understand that some people
15 within Microsoft were saying that they believed that
16 Netscape or Sun were threatening to commoditize the
17 operating system?
18 A. I don't know of anybody using that
19 terminology before Andreessen did. I don't think it
20 was used before he used it.
21 Q. My question is not whether it was used
22 before or after Mr. Andreessen's statement. My
23 question is whether people within Microsoft
24 communicated with you that they believed that
25 Netscape or Sun threatened to commoditize the
1 operating system?
2 A. It says "endeavor" here and you're
4 Q. I was asking a question that was not
5 necessarily tied to the document. My question is
6 whether anyone within Microsoft told you that they
7 believed that Netscape or Sun threatened to
8 commoditize the operating system?
9 A. Those specific words?
10 Q. Yes, the same words we've been using in
11 the last previous series of questions, Mr. Gates,
12 those words.
13 A. I think that most of the time when
14 people use those words, they were repeating what
15 Andreessen had said.
16 Q. My question is not what they meant most
17 of the time or what they were doing most of the time.
18 My question is whether people within Microsoft ever
19 communicated to you that they believed that Netscape
20 or Sun were threatening to commoditize the operating
22 A. Well, they certainly communicated to me
23 that Netscape was communicating that they were on a
24 path to, in Netscape's words, commoditize the
25 operating system.
1 Q. Have you finished your answer?
2 A. Yes.
3 Q. Now, my question is whether anyone
4 within Microsoft ever communicated to you that they
5 believed that either Netscape or Sun were threatening
6 to commoditize the operating system?
7 A. I think after Andreessen said it, some
8 people suggested they agreed with Andreessen's
9 sentiment that Netscape was trying to reduce Windows
11 Q. When people used the word with you
12 "commoditize" as in the statement that Netscape was
13 threatening or endeavoring to commoditize the
14 operating system, what did you understand commoditize
15 to mean?
16 A. That they were creating a product that
17 would either reduce the value or eliminate demand for
18 the Windows operating system if they continued to
19 improve it and we didn't keep improving our product.
20 Q. Did you have any other understanding of
21 the term "commoditize" in that context?
22 A. Well, it was a word that was used to
23 refer to Andreessen's comment.
24 Q. Other than that, did you have any
25 understanding of the meaning of the term
1 "commoditize" in that context?
2 A. Other than those two things?
3 Q. Yes.
4 A. No.
5 Q. Let me show you next a document that
6 has been marked as Exhibit 383. This purports to be
7 an e-mail from Mr. Maritz to you and others with
8 charts attached to it.
9 (The document referred to was marked
10 by the court reporter as Government Exhibit 383 for
11 identification and is attached hereto.)
12 Q. BY MR. BOIES: First, have you seen
13 this e-mail before?
14 A. I think Mr. Houck showed it to me.
15 Q. You may be right in a sense, Mr. Gates,
16 in the sense that I think that your counsel has
17 produced to us various versions of documents. I do
18 not believe that this particular version, which was
19 produced to us stapled this way, was shown to you by
20 Mr. Houck.
21 A. When you ask me whether I'd ever seen
22 the e-mail before, I wasn't referring to the way it
23 was stapled.
24 Q. This happens to have various charts
25 attached to it. Have you ever seen this e-mail with
1 these charts attached to it?
2 A. Can I look back through the old
4 Q. What I'd -- yes, you can. You can do
5 whatever you want to answer the question, but what
6 I'd like you to do is I'd like to get an answer to
7 this question with respect to Exhibit 383. If you
8 need to look back at the other exhibits to answer
9 this question, then you can do whatever you need to.
10 A. You've asked me if I've ever seen
11 something before and I'm thinking maybe a previous
12 exhibit had some or part of this. And therefore, to
13 answer your answer question, I need to look at the
14 exhibits to see if that's the case or not.
15 Q. Let me see if I can move things along.
16 Did you receive this e-mail in or about January,
17 1997, this e-mail being a message from Paul Maritz to
18 you and others dated January 5, 1997?
19 A. I don't remember receiving it, but I
20 don't have any reason to doubt that it was sent.
21 Q. Did you see this e-mail at any time
22 prior to the commencement of your deposition last
24 A. I don't remember seeing it.
25 Q. The subject of this e-mail is "Overview
1 slides for Billg/NC & Java session with 14+'s on
2 Monday." Do you see that?
3 A. Yes.
4 Q. And I think you identified the 14+'s
5 as the -- some group of executives; is that correct?
6 A. No.
7 Q. What is the 14+'s?
8 A. It's people above a certain level,
9 primarily engineers. Also executives, but mostly
11 Q. It's all the people in the company
12 above a certain level, the 14 level?
13 A. Which are mostly engineers and not
15 Q. How many people are there in the 14+'s
17 A. It's a good question. I think around
18 200 to 300.
19 Q. And these would be the people in the
20 200 or 300 top rated jobs in the company; is that
22 A. If top means the best compensation,
24 Q. Now, do you recall the slides that are
25 attached to this e-mail?
1 A. I remember when I testified earlier
2 seeing these and saying that I was pretty sure that I
3 never presented these slides.
4 Q. Do you recall whether someone else
5 presented these slides in January of 1997?
6 A. I'm not sure. I remember looking at
7 the slides and thinking probably not.
8 Q. Let me ask you to look at the third
9 page of the exhibit, which is headed "Key Platform
10 Challenge." It is page 2 of the charts and page 3 of
11 Exhibit 383, in which it says "NC & Java are platform
12 challenges." Do you see that?
13 A. Uh-huh.
14 Q. Did you believe in January of 1997 that
15 Java was a platform challenge?
16 A. Not Java the language, but some of the
17 Java runtime APIs that were being promoted to ISPs in
18 the way that Sun and others were talking about
19 enhancing them were platform challenges.
20 Q. When reference is made here to Java, do
21 you understand that to refer to what you refer to as
22 Java runtime APIs?
23 A. I'm not sure.
24 Q. Are you aware of people asserting that
25 Java runtime APIs were a platform challenge in or
1 about January of 1997?
2 A. I just told you that we looked at what
3 was going on in terms of the plans of Sun and other
4 people with Java runtime APIs as being a platform
6 Q. Are you aware of any other platform
7 challenge represented by Java other than Java runtime
9 A. No.
10 Q. So would it be fair to say that you
11 believe that when reference is made here to Java, the
12 reference means Java runtime APIs since it asserts
13 here that Java is a platform challenge?
14 A. It's the best way to make sense of a
15 document that I haven't seen until my deposition, as
16 far as I know.
17 Q. Let me show you a document that has
18 been marked as Exhibit 397. This purports to be a
19 message to you and others from Brad Chase dated
20 March 13, 1997.
21 Did you receive this message in or
22 about March of 1997?
23 A. I don't remember receiving it. In
24 fact, it's very strange that the e-mail names aren't
25 expanded. But I probably received it.
1 (The document referred to was marked
2 by the court reporter as Government Exhibit 397 for
3 identification and is attached hereto.)
4 Q. BY MR. BOIES: Let me go down to the
5 third paragraph of the document and the fifth
6 sentence that says "Browser share needs to remain a
7 key priority for our field and marketing efforts."
8 Do you see that?
9 A. In the third paragraph?
10 Q. Yes.
11 A. Okay, the third sentence, the third
12 paragraph. Yeah.
13 Q. Were you told in or about March of 1997
14 that people within Microsoft believed that browser
15 share needed to remain a key priority for your field
16 and marketing efforts?
17 A. I don't remember being told that, but I
18 wouldn't be surprised to hear that people were saying
20 Q. Immediately before that sentence there
21 is a statement that Microsoft needs to continue its
22 jihad next year. Do you see that?
23 A. No.
24 Q. The sentence that says "Browser share
25 needs to remain a key priority for our field and
1 marketing efforts," the sentence right before that
2 says "we need to continue our jihad next year."
3 That's the way it ends. Do you see that?
4 A. Now I see -- it doesn't say Microsoft.
5 Q. Well, when it says "we" there, do you
6 understand that means something other than Microsoft,
8 A. It could mean Brad Chase's group.
9 Q. Well, this is a message from Brad Chase
10 to you, Brad Silverberg, Paul Maritz and Steve
11 Ballmer; correct?
12 A. As I say, it's strange that this -- if
13 this was a normal piece of e-mail, it wouldn't print
14 like that. I'm not aware of any way -- maybe there
15 is some way -- that e-mail ends up looking like this
16 when you print it out.
17 Q. I wasn't the one that was asserting it
18 was an e-mail. I don't know whether it is an e-mail
19 or memo or what it is. All I know is it was produced
20 to us by Microsoft. And the first line of it says
21 "To" and the first name there is "Bradsi." Do you
22 see that?
23 A. Uh-huh.
24 Q. Does that refer to Brad Silverberg?
25 A. Usually you can use that shorthand in
1 typing in someone's name, but when you print out
2 e-mail, it doesn't come out that way.
3 Q. Do you believe that the reference here
4 to "Bradsi" is a reference to Brad Silverberg, sir?
5 A. Yes.
6 Q. The next addressee is "Paulma." Do you
7 believe that that is Paul Maritz?
8 A. Yes.
9 Q. And the next addressee is "Steveb". Do
10 you believe that that is Steve Ballmer?
11 A. Yes.
12 Q. The next addressee is "Billg" and do
13 you believe that that is yourself?
14 A. Yes.
15 Q. And it says it's from "Bradc" and do
16 you believe that is Brad Chase?
17 A. Yes.
18 Q. Now, when Brad Chase writes to you and
19 the others "we need to continue our jihad next year,"
20 do you understand that he is referring to Microsoft
21 when he uses the word "we"?
22 A. No.
23 Q. What do you think he means when he uses
24 the word "we"?
25 A. I'm not sure.
1 Q. Do you know what he means by jihad?
2 A. I think he is referring to our vigorous
3 efforts to make a superior product and to market that
5 Q. Now, what he says in the next sentence
6 is, "Browser share needs to remain a key priority for
7 our field and marketing efforts;" is that correct?
8 A. Yes.
9 Q. The field and marketing efforts were
10 not involved in product design or making an improved
11 browser, were they, sir?
12 A. No.
13 Q. Let me show you next a document that
14 has been marked as Exhibit 384.
15 MR. HEINER: Which number is this now?
16 MR. BOIES: 384.
17 (The document referred to was marked
18 by the court reporter as Government Exhibit 384 for
19 identification and is attached hereto.)
20 Q. BY MR. BOIES: I want you to look at
21 the second message that is on this exhibit. In the
22 middle of the first page is a message from Steven
23 Sinofsky. Do you see that?
24 A. Uh-huh.
25 Q. And it is dated June 10, 1994. There
1 is one name that it's hard to read on the copy that
2 we were produced, but I don't believe that you were
3 shown as receiving a copy of this exhibit, at least
4 back in 1994.
5 Have you seen this message before, sir?
6 A. Not before this lawsuit.
7 Q. When did you first see it?
8 A. I think sometime during the course of
9 the lawsuit.
10 Q. That is, sometime in the last six
12 A. That's right.
13 Q. Have you discussed this with anyone in
14 Microsoft, other than your counsel?
15 A. Yeah, I think I had a short
16 conversation with Mitch Matthews on the general
17 topic, not on this specific message.
18 Q. What was the general topic that you
19 refer to?
20 A. The history of our decision to put
21 browsing functionality into Windows.
22 Q. There is a reference here to Chicago.
23 Is that a reference to Windows?
24 A. It's a code name that was used for what
25 became Windows 95.
1 Q. The third paragraph of this e-mail says
2 "We do not currently plan on any other client
3 software, especially something like Mosaic or Cello."
4 Do you see that?
5 A. I see it.
6 Q. You've identified Mosaic as a browser;
7 correct, sir?
8 A. Yes.
9 Q. Do you know what Cello is?
10 A. No.
11 Q. Were you informed in or about June of
12 1994 that people within Microsoft did not currently
13 plan on including something like Mosaic or Cello in
14 Windows 95?
15 A. Quite the opposite.
16 Q. So it's your testimony that this is
17 just not accurate, is that what you're saying?
18 MR. HEINER: Objection.
19 THE WITNESS: What are you referring
21 Q. BY MR. BOIES: Well, I'm referring to
22 this document. And what this document says is, "We
23 do not currently plan on any other client software,
24 especially something like Mosaic or Cello." And you
25 understand this to mean that you're not currently
1 planning on including something like Mosaic or Cello
2 in Chicago; correct, sir?
3 A. I guess I'd read the whole e-mail
4 message if I was really interested. And I've gone
5 ahead and done that. So you're trying to take that
6 sentence just out by itself or you're trying to get
7 me to talk about what the e-mail itself is saying?
8 Q. What I'm trying to do is get you to
9 tell me whether, as you understand it, Mr. Sinofsky
10 is writing here on June 10, 1994, that at least
11 insofar as he is concerned, there is not a plan to
12 include something like Mosaic or Cello in Chicago?
13 Is that what he is saying here?
14 A. No.
15 Q. That's not what he is saying.
16 Let's go to the previous paragraph.
17 He says, "I think it is really important that we
18 stick to the basic facts of the situation and not
19 over commit Chicago or Microsoft in any way. The
20 Chicago message is 'all the plumbing you need to
21 connect to the Internet,' which translates to TCP/IP
22 stacks, SLIP and PPP, and the basic FTP and TELNET
23 clients. Our built-in client (and our NT server)
24 will also support Internet protocols such as SMTP and
1 He then continues in the very next
2 sentence "We do not currently plan on any other
3 client software, especially something like Mosaic or
5 Are any of the things that Mr. Sinofsky
6 indicates here are going to be included in Chicago
7 software that you would consider to be browser
9 A. The e-mail I'm looking at talks about
10 the Chicago message and this is -- he seems to be
11 talking about what we're saying externally about the
12 Chicago project. This e-mail doesn't include anyone
13 who is involved in deciding what's in Chicago, and so
14 he is talking about the Chicago message here.
15 Q. Mr. Gates, my question is whether any
16 of the software that Mr. Sinofsky identifies here as
17 being included in Chicago is software that you
18 considered to be browser software?
19 A. Where do you see the phrase "included
20 in Chicago"?
21 Q. Well, sir, when he says "The Chicago
22 message is 'all the plumbing you need to connect to
23 the Internet,' which translates to TCP/IP stacks,
24 SLIP and PPP and the basic FTP and TELNET clients.
25 Our built-in mail client (and our NT server) will
1 also support Internet protocols such as SMTP and
2 MIME," when he says those things, do you believe he
3 is saying that those are going to be included in
5 A. No. He is saying the Chicago message
7 Q. So what you're saying is that when he
8 says the Chicago message is that, he doesn't mean
9 that you're going to include in Chicago what he then
10 lists; is that what you're saying?
11 A. He is saying that the Chicago message
12 may imply that.
13 Q. But that's what I'm asking you. What
14 I'm asking you is whether you read this document as
15 saying that TCP/IP stacks, SLIP and PPP and the basic
16 FTP and TELNET clients are going to be included in
17 Chicago? Do you read it that way?
18 A. No.
19 Q. Okay. And when he says "Our built-in
20 mail client and our NT server will also support
21 Internet protocols such as SMPT and MIME," do you
22 believe that he is saying that your built-in mail
23 client and your NT server are going to come out with
25 A. Certainly not.
Continued on page 4 of 4
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