U.S. vs. Microsoft
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  Bill Gates Proves a Hit on Videotape

By Rajiv Chandrasekaran
Washington Post Staff Writer
Thursday, December 3, 1998; Page E01

Microsoft Corp.'s top lawyer reclined in a faux leather chair, rubbing his cowlick in circles. His Justice Department counterpart, sitting 10 feet away in the drab federal courtroom, kicked off his black Nikes and stared at the carpet. The judge couldn't stop glancing at the clock as the spectators, now a precious few, nodded off.

Over the last two weeks, the Microsoft antitrust trial, the epic confrontation between the U.S. government and the giant software company, seemed to be deflating. Gone were the procession of computer industry executives who recounted being roughed up by Microsoft and its chairman, Bill Gates. In their place were experts such as the meandering economist who led the court on a long journey through "browser flow rates" and "entry barriers in the operating system market."

Then, yesterday morning, mercifully, the government went to the videotape again, projecting Gates's larger-than-life visage on a giant white screen. As the petulant Gates was interrogated, the spectators perked up; the reporters scribbled once more; the lawyers sat upright; the judge forgot about the clock. Even the bailiff, prone to scanning the crowd and castigating whispering spectators, seemed transfixed.

As the weeks drag on in the trial that will help chart the future of the high-tech world, the most compelling moments have been these clips of the world's richest man. His unflattering demeanor in the deposition; his tough-talking electronic-mails; his take-no-prisoners memos to his top executives.

Since the trial's opening day six weeks ago, government lawyers have used Gates as the leitmotif of their case, bringing his image back again and again, casting him as ringleader of the company's alleged efforts to thwart competition in the computer industry. By repeatedly playing clips of the videotaped deposition -- carefully selected by the government to show Gates's most elaborate circumlocutions -- the Justice Department hopes to raise fundamental doubts about Microsoft's credibility: If the company's chairman won't give a straight answer, they reason, why should its defense be believed?

But lately, as expert witnesses have waded into the soporific murk of economic and technical jargon, the government has found another benefit from the Gates Tape: It's the antitrust equivalent of Jolt Cola.

The Gates Tape is mesmerizing. Unlike the well-rehearsed executive who's known for delivering Top 10 lists and splashy product demonstrations at trade shows, Gates the defendant comes across as combative and forgetful, squirming in a large leather chair as he's buffeted with questions.

In one 20-minute segment aired earlier this month, government lawyer David Boies asked Gates: "What non-Microsoft browsers were you concerned about in January of 1996?"

To everyone in the courtroom, it was clear that Boies was trying to get Gates to mention Netscape Communications Corp., the onetime darling of Silicon Valley that makes rival software to "browse" the global computer network. But Gates wouldn't bite.

"I don't know what you mean, 'concerned,' " he retorted.

"What is it about the word 'concerned' that you don't understand?" Boies asked in an incredulous tone.

"I'm not sure what you mean by it," Gates replied, deadpan, prompting people in the courtroom -- U.S. District Judge Thomas Penfield Jackson included -- to start snickering.

In the clips played yesterday, Gates put on a similar performance, quibbling with Boies for five minutes over the meaning of the phrase "pissing on," which a Microsoft executive used in an e-mail to describe the company's efforts to thwart the Java programming language. After first saying that he did not "know what [the author] specifically means," Gates eventually conceded that "in this case, I think it means what you've suggested it means."

Spectators and journalists, who had packed the courtroom in anticipation of the next installment of the Gates Tape, were in stitches, prompting the bailiff to call for decorum.

Microsoft lawyers maintain that the tape is an irrelevant distraction to the proceedings and that Gates behaves on it as would any high-profile executive, trying to focus questions in order to provide more precise answers.

"What possible purpose was the government trying to serve?" Microsoft spokesman Mark Murray sniffed about the colorful segments played yesterday. "This has no relevance to the case."

No matter how it plays with the judge, who will decide this case, the tape has certainly provided a clear advantage in the government's public relations battle with Microsoft. Gates's comments, no matter how banal, make their way into almost every reporter's story, and the videotape helps juice up television news reports.

As soon as segments of the tape are played in court, a Justice spokesman has been rushing a copy to waiting TV crews outside the building. Only hours later, when the proceedings have recessed for the day, will the cameras record Murray delivering his counter-spin, bemoaning the government's use of "snippets."

Sensing the potential fallout from the deposition, Microsoft has spent the last five weeks grappling for control of the courtroom VCR, hoping to press any button -- pause, fast forward, eject -- other than play. It's a squabble that's been almost as interesting as anything on the tape.

A preview of the Gates Tape was shown during Boies's opening arguments, but the first extended screening wasn't scheduled until the second week of the trial. On the appointed morning, a Thursday, the line of gawkers hoping for a seat stretched down the football-field-long hallway outside the Constitution Avenue courtroom.

The government's second witness, an executive from America Online Inc., would start the day in the hot seat, but Boies had confidently predicted that Microsoft would finish with him by lunchtime, leaving three hours for video.

But Microsoft's lead attorney, John L. Warden, the man with the habit of head-rubbing, seemed to have a different idea. In his thick-as-treacle Southern drawl, he began by querying the witness, David Colburn, about several e-mail messages -- the same ones the lawyer and the witness discussed the day before. Colburn, who showed up in cowboy boots and a two-day stubble, began most of his responses by saying: "As I said yesterday."

When the trial reconvened after lunch, Warden kept going. He dug a thick AOL contract out of his files, pointing Colburn to several long paragraphs and asking the witness to read them aloud. Then came another contract. And then a request to define several technical terms. "Next he'll be asking the witness to read from the Cleveland phone book," one spectator muttered.

To most everyone in the room, Warden seemed to be mimicking a tactic used just up the street in the Senate chambers -- filibustering. Warden finally fired off his last question and sat down at 3:55 p.m., five minutes before the judge had said he'd end the day's proceedings. No time for Gates.

The following Monday morning (there's no court on Fridays), with everyone expecting an executive from Apple Computer Inc. to take the witness stand, Boies and Warden were huddled in the hallway. Although they're prone to fire barbs at each other during the proceedings, the two sometimes banter amiably in a corner during recesses.

This time it didn't appear to be idle chatter. Gates was on the agenda. When the judge entered the courtroom, Boies was going to play the tape.

But instead, a closed hearing ensued. Microsoft was trying to rein in the videos. Then came a sidebar conference, where loud static noise filled the room to prevent eavesdropping. Then a recess. Then a meeting in the judge's chambers.

Finally, with spectators growing restless, Jackson emerged just before noon, telling the lawyers that "we will see it all." All of the tape, that is, that Boies wants to show.

Trying to salvage Gates's image, Warden asked that the Microsoft side get to pick its own portions of the deposition to show, ostensibly segments in which their chairman looks good. The judge agreed.

Boies stepped to the lectern. Although he's charging the government $225 an hour for his services (a price, he points out, that is half his usual fee), the wiry Boies wears the same off-the-rack blue suit and navy knit tie every day. On his feet are black Nike sneakers that don't even purport to look like dress shoes. His Casio wristwatch is buckled around his shirt cuff.

Despite his unassuming style, Boies and the rest of the government team -- who don snappier threads -- have relied on sophisticated technology to present their case. The depositions actually are computerized recordings that feature scrolling text under the video image.

Microsoft, the world's preeminent technology company, which even makes popular computer software called PowerPoint for such presentations, has responded with an old-fashioned overhead projector -- and Warden has told the judge that he prefers a legal pad and fountain pen to computers in his office that use Microsoft's Windows operating system.

Boies spoke, and finally, the tape rolled. Gates was as testy as ever.

When asked who attended a Microsoft executive staff meeting, he said: "Probably members of the executive staff."

Boies smiled. Warden sat stoically. And, at one point, Jackson shook his head in disbelief.

All told, Boies said he plans to show about eight hours of the 20-hour interview during the trial. Although Microsoft is selecting its own segments, they are interspersed with the government's. To everybody but the lawyers, it's impossible to know which are which. Gates looks and acts the same in all of them.

Two weeks ago, a frustrated Warden decided to argue his Gates Tape case again, this time asking to meet the judge in his chambers. Although reticent at first, the silver-haired Jackson has become a more avuncular courtroom presence in recent weeks. He has tried to show off his growing grasp of technology, to cut through legal posturing on both sides, and occasionally to inject a little levity into the proceedings.

In the meeting, Warden argued that "playing this deposition in bits and pieces" is being done "for the purpose of an audience outside the courtroom and for the purpose of creating news stories day after day after day." He urged Jackson to order the government to play all remaining segments at one time.

Boies, also present at the meeting, would have none of it. Yes, the segments were longer than he'd like to play, but "it often takes three or four or five or 10 and sometimes 15 minutes to get him to finally admit to something that he should have admitted immediately." Boies suggested that Warden was simply "carrying his company's PR water."

Jackson agreed. "If anything," the judge told Warden, "I think your problem is with your witness, not with the way in which his testimony is being presented."

© Copyright The Washington Post Company

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