Resolve and Fortitude : Microsoft's ''SECRET POWER BROKER'' breaks his silence

by Joachim Kempin

  In the next round, I paused during a longer explanation, something he for sure did not desire to hear. As he impatiently chimed in, I told him “I am not finished” and just pushed ahead with my answer. When I paused for the last time, he angrily roared back at me, “Are you finished?” I was getting on his nerves, and he was getting on mine. In a game my attorneys had told me I could not easily win if it annoyed the judge and especially against such a seasoned and battle-savvy brute.

  Analyzing during recess what had just occurred, I decided to exercise extra caution and restraint. Back in session, before I could collect myself, he struck with retaliatory precision and speed. He showed me an e-mail Bill had written about the importance of winning browser share, and when I battled with him over how to interpret its content, he questioned my ability to understand and communicate in English. Another opportunity to advance the clock! As I calmly and deliberately led him down the path that I can speak and write in several languages, he tried to establish that my correspondence with Bill had always been in English. A straightforward question would have produced a quick answer; instead, valuable minutes slipped by. Irritated, the judge was looking once again at his watch.

  So the jousting clattered on, Boies unhappy, interrupting my answers constantly, and my lawyers asking the judge to reprimand him. A nice interplay of courtroom drama developed, ending with Jackson issuing the detached admonishment “Let him finish,” with the lion snarling, “I will.” Boies’s forehead was now glistening with sweat. He understood after having hurt me once that it would get much harder to gash me a second time.

  I gave him no inch when he showed me a second e-mail from Bill expressing concern about OEMs displaying other browsers more prominently than IE. For Boies this meant Bill was definitively telling me to stop OEMs from loading Netscape Navigator onto their systems. Bill never mentioned Navigator specifically. Boies would not accept my correction; for him, only one competitive browser existed, so again, in detail, I listed all the ones I knew, squandering valuable time on a hairsplitting issue.

  My fear and respect for the lion’s ability to successfully stalk me began to wane. No firearm needed escaping him in finality, just careful attention to detail combined with dogged persistence. Maybe he was tired and less prepared after having been in court for such a long time, or perhaps his support system was functioning less thoroughly than expected. My internal voice came back sharply: “Careful, he nearly got you down once. Don’t become overconfident.”

  His ego wounded and his desperation visibly hungrier for a kill, Boies continued playing word games, prompting me to turn to the judge and voice my concern about his defamatory tactics. Boies’ response: “The record will have to show that! The court will have to decide that. I am not permitted to comment on that. All I can do is ask questions.” I was amused and amazed when the prosecutor felt obliged to justify his slippery tactics!

  Back after recess and more alert than ever, Boies switched subjects: just another clever obfuscation to test my short-term memory. Behind him, once Boies’s busy minions recognized I had not proffered the desired answer, they burrowed deeper into their mountains of documents, locating supplementary confrontational evidence. The paper shuffling never stopped. Still probing the motivation for implementing our restrictions, letters from OEMs were produced, outright condemning them. Way too theatric to be taken seriously, nor ever quantified by their authors. These were opinions of a scant few citing higher support costs and user confusion as reasons for challenging our zero alteration rules. For the prosecutor, they proved we caused consumers harm. I argued that we had a perfectly valid copyright and distributors, such as OEMs, were not supposed to change Windows without consent. I used Melville’s Moby Dick as an example. Imploring that as a reseller of books, you can’t just tear the last chapter out if you don’t like the ending! You can’t replace the introduction either, can’t change the names of characters or the color of the whale. I insisted the changes OEMs had demanded were equivalent to “butchering” Windows. Our software pros did not want their masterpieces altered by amateurs. The judge listened.

  During the rest of the morning, I repeated dozens of times that I considered IE part of Windows. Boies again paraded out e-mails from technical personnel naming IE a standalone Web browser. I could not help on this issue; I had only sold and delivered Windows and IE as a whole. Boies had to find other witnesses to claim differently.

  Soon I was off to lunch. After finishing my meal, I rated my performance. On the first day, using a scale from one to ten, I had probably come close to a nine, but not today. I had to focus and improve. Going for the lion’s throat had to be replaced by entangling him in his own net.

  Despite my adamant refusal to acknowledge Windows and IE as separate products, the prosecutor just as obstinately refused to give up on eventually tricking a complicit statement out of me. So, immediately following lunch recess, he continued with his useless and futile exercise. He tried every possible angle, from the simple fact that we called IE a browser (purely a name for one of Windows’s many features, like Media Center) to IE being delivered on a separate CD. He knew very well that the CD always included more than just IE code; nonetheless, he pressed me to say the opposite. Eventually he moved on, asking me if I had influenced integrating IE code deeper into Windows. Not a smart question, since when does a sales exec make intrinsic tech decisions?

  The dispute about the browser ended in telling him there were other competitive responses available to Netscape to respond to our deeper integration efforts. In a nutshell, that company did not need to sell an OS to win the battle of the browsers—just a better browser. Now the judge was listening and interrupted, offering me an opportunity to explain why our browser was the better product. I explained my impression to him from a PC user’s perspective. “I believe we really simplified basically the operation and usage of the system for the consumer.” The lion was pacing impatiently as I embarked on a lengthier explanation; his growing agitation and desperation showed in a deeply creased forehead.

  He abruptly switched the topic to browser distribution and was now eager to elicit from me the OEM channel was the most important one. He was wrong from the start; there were way too many other options. Boies was trying to prove we foreclosed Netscape in the OEM channel despite the fact that OEMs were shipping plenty of other browsers on their PCs, as my tape had shown. He tried to get me to guess how browser-distribution market share was split between the various options. I would have none of it.

  To illustrate his persistent interrogation tactic, let’s listen to one of the dialogues as Boies asks me if I knew the percentage of PCs being shipped with Netscape’s browser. My answer: “I personally have never tracked this. I do not know.” Boies: “Just give me an approximation.” “I do not know.” Boies again: “Can you give me a range at all?” And this goes on and on. “Give me a wild guess” ends in “Give me any range or approximation,” and so on. So to shut him up, I said maybe 20 or 30 percent of the systems came with Netscape’s browser, expressing I absolutely did not know any precise number and adding this was merely my gut feeling. Jackson allowed it.46 Next question: “Now, all I am trying to do is probe what the basis of that gut feeling is. Has somebody told you information that you are relying on?” This continued for a long time without me confirming any exact data. He was truly badgering me—on a fishing expedition, in waters where no fish existed. Even desperately hungry lions normally don’t venture there.

  Never missing an opportunity to incriminate a witness, he launched into the testimony of John Rose, a Compaq executive, given earlier to help our case. When I told him I had read that particular section, he accused me of lying, claiming I had denied this in the morning. He was dead wrong and painfully had to admit he probably misremembered and immediately thereafter apologized.

  Afterward, he stirred up another debate over why we restricted OEMs’ shells not to boot directly into Windows, and got nowhere. Erratically, he switched back to prove OEMs were the key
distribution channel for browsers. An assumption opined in another memo written by an MS product-line marketer. He had written “Users follow OEM’s lead into the Internet.” I again disagreed. When Jackson interfered, I told him maybe 20 percent of the users would do this because of obvious convenience and carefully defined my estimate as purely anecdotal. Not good enough for Boies. He continued prodding and probing into the subject further. Telling him I had no statistical evidence for my opinion, he finally let go.

  A short recess allowed me to cool down a bit and step back from the heated exchanges I had endured. Back on the stand, Boies insisted on continuing this already fruitless topic of OEMs’ role in browser distribution. I was getting frustrated—maybe the effect he sought to create. Next I was shown a document Paul Maritz had written defining “browser share as job one.” Paul seemed to have feared once that programmers would abandon Windows and write only Netscape Navigator–centric applications. Not likely but remotely possible. This went to the heart of the government’s case. In the David Boies’s hall-of-mirrors fun house of logic, this was the reason why we had thwarted Netscape! Not believing this in the first place, I was the wrong guy to testify on this subject.

  After more paper shuffling, he probed yet again for answers as to why we had integrated IE into Windows. I told Boies integration was our way of building a better mousetrap and shifting the ground rules on a competitor who had nearly 100 percent browser market share. Disliking my answers, he tried to lure me into technical details of the actual code integration. One subject I could not at all help him on, though he fecklessly and desperately clung to it at length. The judge was shifting around in his seat with growing impatience and asked Boies how long he wished to continue with the topic.

  Agitated, the lion requested a bench conference, roaring out his frustration! I listened carefully to the dialogue between him, Jackson, and Holley. Boies complained that after asking me a question, he would “get a dissertation or a speech or statement.” True, I wanted to slow him down! He was “reluctant to let that stuff sit there on the record without cross-examining the very statements” I had made. Then he accused me of saying I was just a salesperson and knew nothing about technology yet freely offered unexpected speeches about the benefits of integration. He was painting me as a chameleon able to camouflage the nature and dimension of my knowledge so the majestic lion could not catch me and knock me over. Claiming he was running out of time, having to reexamine things he didn’t expect me to say and “that [sic: my answers] aren’t really responsive” or relevant to the questions asked. Prompting my attorney to respond, “Your honor, I obviously take issue with this,” asserting that after Boies had shown me technically oriented documents, I had responded with my best familiarity. Jackson agreed, adding, “His scope is rather limited in terms of what he can testify to knowledgeably.” So the trio agreed to classify me as a salesperson. Hallelujah, I had achieved my goal, fencing in the beast. The reason for Boies’s frustration rested squarely with him. He was drifting back and forth with a feral and misguided priority of chasing after opportunities to corner his prey, inviting—demanding—unqualified testimony in regard to modern OS technology I simply did not possess.

  Revenge, though, was being craftily plotted, with questions getting longer and windier as their substance became less precise. I simply refused to answer them, forcing him to break them down and clarify them. Not showing such terrific focus anymore, and being thrown off script during the bench conference, he reinvestigated old issues already covered ad infinitum until we arrived back at the subject of copyright. I had supplied a copy of our copyright applications for both Windows versions with my written testimony. Even here he wasted time by flailing away over whether or not we had a copyright for the different versions of IE as well. Yes, we did as part of Windows, but not separately!

  After another sealed document was unzipped on the fly, Boies then went ahead and asked questions about prices Dell paid in comparison to Gateway (GW). The judge cautioned him because the document he was referring to was sealed. He knew full well this was confidential information and pricing issues were not to be discussed in open court. After my attorney intervened, I assumed Boies would no longer delve any further into similar topics. Stubbornly he persevered, asking the same question about Compaq’s Windows prices in relation to GW’s. Neither Jackson nor my attorneys objected. I was flabbergasted, but with the damage already partially done, I proceeded to answer truthfully, in public. The TV stations in the evening and the newspapers the next morning made this part of my testimony the big story. Boies openly basked in the fact he seemed to have proven GW had been disadvantaged—as he phrased it in his afternoon press conference—because “they did not play by the Microsoft rules.” The truth was different. GW paid slightly more for Windows because she shipped less than half as many PCs than the competitors mentioned!

  At last we reached the IBM relationship. Weirdly enough, Boies arrived upon it by probing into whether we had ever tried to talk IBM out of supporting Sun’s Java product. He was trying to prove a pattern whenever an OEM supported a competitive environment we would intervene. IBM’s support for Sun, a competitor of hers, did not appear to be smart. Pointing this out to Sam Palmisano in our first meeting, he had told me this wasn’t his decision to make and he could care less—semihonest as I thought. True or not, it mattered little to me; I had made my point, and that remark could not be counted as coercion.

  The background was a document written by Bill voicing that if IBM was really in the Sun Java camp, it could affect our relationship. We hardly had any. Mr. Boies, however, worked feverishly to have this comment translated as just another evil attempt to coerce IBM. A part of a pattern he was trying to prove convincingly. Since when couldn’t we express our dislike of IBM supporting one of our competitors’ products? A heated exchange developed when I refused to second-guess Bill, letting Boies say, “I’m entitled to know whether you understood this meant that Mr. Gates was saying…” Since when was Boies entitled to me reading Bill’s mind years later? Asking me in the same context if Bill was “being primarily concerned with IBM’s welfare or MS’s,” I answered truthfully, “With both,” hoping Jackson would believe that Bill wanted peace with Big Blue.

  After a brief recess, I was confronted with yet another sealed document, this time generated by Compaq. It stated that one of my former employees, Jan Claesson, had told one of Compaq’s VPs four years earlier that if Compaq would ever opt for just a per-copy license, this would be a “big issue.” Boies’s idea was to demonstrate we had coerced Compaq into a per-processor license with this not-even-vaguely retaliatory comment. When Jan’s discussion had taken place, Compaq operated under a highly advantageous per-processor license, which still had another three years to run. A per-copy license would have no doubt yielded higher royalties. I expressed to the judge how wildly illogical that statement was considering the circumstances.

  The most serious issue Boies brought to my attention was a discussion Jan C. supposedly had with Mike Clark, one of Compaq’s VPs. He had whispered in his ear what other OEMs were paying for Windows 95. Employees working for me knew such information was not to be disclosed. Jan, being a supervisor, made his breach of confidentially extremely severe. When Boies asked me point-blank how I would have reacted if I would have known this earlier, I told him flat out I would have fired the guy. In a painful moment of truth, we all agreed.

  Wanting to demonstrate how badly we had damaged Netscape when bundling IE with Windows, Boies probed the details of a competitive review Steve had once initiated. A long-winded question followed, hard to understand. My response: “That’s a long question”; his answer: “I will break it down.” Unsatisfied with my answer, another of his long, loopy, run-on questions followed. Boies was obviously getting tired, and his questioning style reminded me of Thomas Mann, a German novelist of the nineteenth century, who wrote the largest longest German sentences I have ever read.47 I noted: “Mr. Boies, it is very late. Please break it down so
I can understand it.” He answered: “It was a long question and awkward and I apologize. It is late.” Jackson nodded.

  The following exchange was one of the funniest. Obviously frustrated, Boies asked if I knew how many people were downloading browsers from the Internet. I answered: “I do not know, but I believe it is substantial.” He then tried to lecture me: “Would you be surprised, sir, that for the first nine months of 1998, it was negative?” I promptly responded: “Meaning they sent their browsers back?” By now we were closing in on 5:30 p.m.—the courtroom, including the judge, exploded with tension-dispelling laughter. Boies was wearying. It took him considerable time to recover at last, asking the right question a few minutes later. What he was referring to was a survey showing a decrease in the number of Internet browser downloads.

  He had a point. In ’98 we were already shipping IE version 4.0, a winning product neatly proving exactly the opposite of what he was trying to ram down the judge’s throat. Not until we had such a superior product did users stop downloading Netscape’s browser. As could be expected, improved features and quality had won!

  The next session happened in camera, meaning without the public. It took half an hour and focused on OEM pricing and policies in intimate details. There were no surprises, though Boies made certain Jackson understood we had pricing power; we had for sure, but this in itself meant nothing. I disputed his argument of not having competition, but he insisted we operated only in the Intel-based PC market and no other computing environment was relevant. This was for the judge to accept or reject. We finished by 6:10 p.m. It had been a long, grueling day, and we had gone an hour beyond the normal close of court—a first for Jackson. Another lonely meal completed my day.