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  Microsoft Evidence Backfires

Microsoft trial
Justice Department lawyer David Boies meets reporters outside federal court in Washington on Tuesday. (AP Photo)
By Rajiv Chandrasekaran
Washington Post Staff Writer
Wednesday, February 3, 1999; Page E1

It began as a Perry Mason moment. Pointing to a slight change in the text in a corner of a computer screen, a Justice Department attorney at the Microsoft antitrust trial forced a dramatic admission from a senior company executive on the witness stand yesterday morning: A sophisticated video demonstration created by Microsoft and played in the courtroom contained a major inaccuracy.

"This video you brought in here, and vouched for to the court, and testified how much you checked, that's just wrong, isn't it?" said David Boies, the Justice Department attorney, to Microsoft Senior Vice President James E. Allchin.

"They filmed the wrong system," stammered Allchin.

Played on Monday, the videotape showed computers operating while using Windows 98 in its current form and with Internet features stripped away. It was intended to demonstrate that serious problems result from removing Internet technologies from the operating system.

But Boies, using a series of frames from the tape, argued that at the time the computer was said to be demonstrating one of the most compelling problems, the text on the screen indicated that Internet technologies had not actually been removed.

Later in the day, though, after Allchin made a series of frantic telephone calls to his subordinates at Microsoft headquarters in Redmond, Wash., the witness changed his story: The computer used in the video demonstration really did have its Internet technologies removed, but for some reason, which Microsoft officials have not been able to pin down, the text label was erroneous.

Regardless of how the text came to be changed, legal specialists said the conflicting interpretations of the video could sully Microsoft's credibility in the courtroom and lead U.S. District Judge Thomas Penfield Jackson to put little value on the video, which formed the centerpiece of Allchin's testimony.

"Microsoft says this was some kind of mistake," Boies said on the courthouse steps yesterday evening. "I'm not going to stand here and say something nefarious happened in Redmond. All we know is that the tape they put in evidence is not reliable."

But William H. Neukom, Microsoft's general counsel, likened the error to a wrong "syllable in a word in a long essay."

"The fact that one small aspect is wrong . . . doesn't overcome the testimony of Mr. Allchin," he said.

Microsoft contends that Windows cannot operate properly without Internet technologies. Proving the contrary is central to the government's case. The Justice Department and 19 states allege that Windows 98 and Microsoft's Internet Explorer browsing software are separate products tied together in an illegal effort to crush rival browser firm Netscape Communications Corp.

Earlier in the trial, a government witness, Professor Edward W. Felten of Princeton University, demonstrated a program he wrote to delete portions of Internet Explorer from Windows. Government lawyers argued that Microsoft could create a similar program to offer consumers a version of Windows 98 without a browser.

Microsoft has asserted that Felten's program slows down Windows 98 and prevents some non-Internet functions from working properly. In written testimony given to Jackson, Allchin called Felten's program a "Rube Goldberg mechanism" that would create a commercially useless version of Windows.

To back that claim, Microsoft produced the two-hour videotape, which purported to show the problems resulting from use of the Felten program, with narration by company engineers.

Boies focused on just one segment yesterday, which alleged that a Windows user without Internet Explorer would face problems trying to use an online service that automatically adds new features to the operating system. The video showed a blank computer screen, while the narrator said: "It is taking a very long time unusually long. . . . That is a result of the performance degradation that has occurred because of running the Felten program."

Yesterday, with Allchin on the stand, Boies pointed to a tiny text header at the top of the screen that read "Microsoft Internet Explorer." When Felten's program was run, Boies said, such words should not appear there. The discrepancy, a government official said later, was noticed by two associates of Felten's Monday night.

Allchin finally conceded the point. "In this particular case, I do not think the Felten program has been run," he said. He speculated that the wrong scene must have been included on the tape.

But Allchin maintained that he had performed a similar test in a Microsoft laboratory and encountered delays. "The performance problem exists," he said.

Boies later forced Allchin to concede that some of the computers used for the test might not have been "virgin machines," meaning that they had software other than Windows 98 and Felten's program on them, which could also affect performance.

Five hours later, after the lunchtime phone calls, Allchin gave a completely different analysis under questioning by a Microsoft attorney. "My conclusion is that [the demonstration computer] was a Feltenized machine. What we saw were exactly the failures you would see in a Feltenized machine," he said.

In other testimony yesterday, Allchin distanced himself from a memo he wrote in March 1997 urging that Internet Explorer be removed from Windows 98 because the company had been wasting "hundreds of people's time on [test versions] that don't work."

Asked by Boies about his comments, Allchin said: "What I wrote here was wrong."

© Copyright 1999 The Washington Post Company

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