The Microsoft trial returned to court yesterday for closing arguments after a three-month hiatus, and it was the sort of show this city of lawyers should savor. Only in America could the future of technology be shaped by a man wearing a medieval black robe.
Judge Thomas Penfield Jackson moved the proceedings out of his usual cramped courtroom to the vast ceremonial courtroom on the sixth floor, and the portraits of ancient and modern judges that ring the walls gave the proceeding a kind of timeless elegance.
Outside the courtroom, in the real world of the marketplace, the issues being discussed with such erudition yesterday are becoming moot. Technology is racing onward, while the lawyers sit and argue. That's in the nature of things -- lawyers are always looking in the rear view mirror, while technologists are always looking over the next hill -- and it didn't spoil yesterday's show.
Appearing in the morning was the government's lead lawyer, David Boies, dressed with his usual studied shabbiness in black sneakers and a mail-order suit. This man has done more to demolish the "dress-for-success" concept than anyone in America. Once again yesterday, Boies's rumpled suit only accentuated the well-pressed creases in his argument.
Boies treated the courtroom to a reprise of his greatest hits. He showed grainy videotape of Bill Gates's deposition, with the Microsoft CEO denying that he regarded Netscape as a threat in 1995, or even knew much about what the company did -- and then, wham! Boies was displaying Microsoft e-mails from that same year, in which Gates was plotting strategy to combat Netscape and dominate what he called the "Internet Tidal Wave." That killer instinct is what I like about Gates -- the fact that he saw Netscape coming at him and mobilized his company to defeat it -- but it doesn't play well in court.
Judge Jackson watched intently as Boies weaved his way through this narrative, and you couldn't help wondering whether the judge, behind his meaty, implacable face, wasn't thinking: This company has been pulling my leg! That undoubtedly was precisely the message Boies wanted to leave with the judge as he ponders the evidence: Your honor, you can't trust these folks on anything.
Boies concluded that this long and complex trial boils down to a simple fact: Microsoft's Windows has a monopoly in the market for PC operating systems, and the company has engaged in specific anti-competitive practices that violate the antitrust laws. He also managed to show, more powerfully than in the past, how Microsoft's behavior has harmed consumers by depriving them of choices they would otherwise have had.
Following Boies was Microsoft's lead trial lawyer, John Warden. He's a stocky man with a burbling southern drawl -- it's almost as if Microsoft had looked for the lawyer who would least embody the technology giant's corporate style. Observers have spent much of the trial wondering why the world's most powerful software company chose him as its advocate. The answer was clear yesterday in Warden's presentation. This company is so confident of its case, and so contemptuous of the government's, it could win with Gomer Pyle.
Microsoft still thinks it's holding the high cards, despite Boies's courtroom theatrics. Warden went through a detailed explanation of why the government has failed to prove its case. He examined five pillars of government's argument -- Microsoft's alleged tying of its Internet Explorer browser to Windows, its alleged exclusionary contracts, its alleged monopoly power, its alleged attempt to monopolize the browser market and its allegedly predatory behavior -- and offered specific rebuttals. His most potent line: If Microsoft was really a monopolist, then why did it leave an estimated $20 billion a year in potential monopoly profit on the table?
Microsoft has a final secret weapon -- the clock. It seems clear now that the antitrust trial of the century is going to be the trial of next century, as well.
Judge Jackson will spend the fall preparing his own findings of fact; then he'll ask both sides for briefs and perhaps oral argument on proposed conclusions of law. That will probably take through the winter. If those findings and conclusions go against Microsoft, the company will try an immediate appeal to the D.C. Circuit -- before Judge Jackson takes up the issue of remedies. That process could take another year, and the losing side might then ask the Supreme Court to review the case. By then we might be well into 2001. Will anyone even remember by then what an Internet browser was?
It's ironic that this week finds Microsoft (outside the timeless rituals of the courtroom) in a new brawl to gain market share in the post-Windows computing world. The battle that began with the browser war has continued, and Microsoft -- for all the market power Boies described -- hasn't been able to stop rivals from creating an alternative to the Windows desktop. Soon, computer applications such as spread sheets or word processing won't sit in a Windows-controlled PC but in the big computer servers that drive networks. The network is the computer, as Scott McNealy of Sun Microsystems used to say. And it's lovely to see Microsoft scrambling to keep up with its old nemesis, Sun.
The legal process will grind on, perhaps for several more years. The technological process will race ahead at warp speed. This mismatch may seem weird, but we should learn to accept it. The technology revolution needs rules, and the Microsoft case, however long it takes, will eventually produce some helpful ones.