WASHINGTON -- After nearly a year of testimony, acrimony and
debate, the opposing parties in the antitrust suit against Microsoft
appear to have settled on strategies for the upcoming trial.
For Microsoft -- accused of bullying competitors, bribing allies
and forcing customers to use the company's products, like them or not
-- one general defense has come down to this: So what? Everyone does
it. That is how business operates.
As John Warden, a Microsoft lawyer, put it: "All companies
compete; that's how the market works."
But lawyers for the Justice Department and 20 state attorneys
general who filed the landmark lawsuit against the software giant
four months ago predict that Microsoft's own leaders will prove the
government's case. In hundreds of e-mail messages and memorandums
written over the last several years, most of which will be entered as
evidence, these executives unabashedly laid out their plans and
What the documents show, said David Boies, a Justice Department
lawyer, is that Microsoft "bribed people to take their products, used
predatory pricing and other anti-competitive tactics."
If every company behaves this way, as Microsoft asserts, "then
we're going to be very busy" in the coming years, one antitrust
As the two sides offered their competing strategies on Friday,
Judge Thomas Penfield Jackson of the U.S. District Court seemed
equally willing to challenge both.
For example, one part of the government's suit accuses Microsoft
of requiring Internet service providers to support Internet Explorer,
Microsoft's browser for navigating the World Wide Web, in exchange
for receiving promotional space on a part of the main Windows screen
known as the channel bar.
"If your browser is so good, why do you need all those covenants
anyway?" Jackson asked.
Warden, the Microsoft lawyer, responded that the arrangements were
simply "promotional marketing agreements, very common tools of
competition, just like Pepsi makes a deal with Pizza Hut to feature
The judge responded that such marketing arrangements did not exist
in the computer industry until Microsoft introduced them.
"But Coca-Cola certainly does it," Warden said.
"Yes, but Coke is not a monopoly," the judge answered. As he had
noted earlier, the rules governing how a monopolist can behave are
very different from those governing other companies.
Jackson seemed skeptical at times of the government's position,
too. Stephen Houck, an assistant attorney general from New York,
read from several internal memos and documents that the government
has introduced as evidence. One was a note that an employee sent to
Bill Gates, Microsoft's chairman, in March 1997 suggesting ways to
increase use of Internet Explorer and take customers away from
Netscape, the company's main competitor in the Web browser market.
"It would be a mistake not to bundle Internet Explorer with
Windows," Microsoft's operating system, the employee wrote. "If we
take Internet Explorer away from the operating system, Netscape users
won't switch to us."
Jackson then said rhetorically: "These documents are not
necessarily inconsistent with the behavior of a competitor."
To that, Houck responded: "No, it is inconsistent to use your
monopoly position in operating systems to gain market share and
disadvantage competitors. …