Defense Loses Video Evidence Battle

Microsoft suffers a second videotape bombshell in its antitrust trial.

Patrick Thibodeau, IDG News Service

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In a turn of events that absolutely stunned the courtroom on Wednesday, the government was able to show that Microsoft had used multiple PCs to film a videotape segment the company had initially implied was a seamless segment filmed on one PC. The company had shown the videotape as evidence in court Tuesday, as part of its defense of the U.S. Department of Justice's antitrust lawsuit.

David Boies, the lead government attorney, pointed to a number of places in the 4-minute segment that showed possible discrepancies. But the knockout punch was a missing icon for Microsoft Outlook that appeared on one Windows screen in the video but wasn't evident in another segment.

The videotape segment purported to show delays in the Windows operating system caused by a browser-removal program written by Princeton University computer scientist and government witness Edward Felten. Microsoft wants to show that the browser is an integral part of Windows, and its removal cripples the operating system. The government aims to show that Microsoft simply bundled the browser with the OS in a bid to dominate the browser market.

The courtroom revelation left James Allchin, Microsoft's chief technical witness, stammering for an explanation, and drew harsh words from Judge Thomas Penfield Jackson, who held his head in his hands at one point.

"How can I rely on [the tape] if you can't tell me it's the same machine?" asked Jackson.

"It's very troubling," said Jackson, adding that he would have felt a "little better" if Allchin had made the test himself.

"I made the test," said Allchin.

"But that's not what I'm seeing here," said Jackson.

At another point, Jackson said the discrepancies "cast doubt on the reliability--the entire reliability" of the videotaped demonstration.

As soon as Boies finished, Microsoft attorney Steven Holley immediately asked for a bench conference with the judge.

Remaking the Tape

Microsoft officials later said that they reached an agreement, approved by the judge, to film a new test of Felten's program tonight. The filming will be witnessed by government attorneys and played in court Thursday.

Allchin appeared completely shaken by the attack on the tape. At one point he insisted there was only one machine, but at another point--when the evidence was overwhelming--he said there must have been multiple machines.

Outside the courtroom, William Neukom, Microsoft's vice present for legal affairs, acknowledged the mistakes.

"We make very good software; we didn't make a very good tape, but the point is still there," said Neukom, who insisted that the tape would show problems with the Windows operating system after Felten's program was run.

"I Don't Understand How IE Is Going to Win"

But Allchin's problems on the witness stand went beyond the tape.

Boies challenged Allchin's contention that he sought to integrate the browser with the operating systems to bring user benefits.

Boies repeatedly asked Allchin to explain statements in a series of company e-mail messages that pointed directly to concerns about Netscape Communications, such as a 1995 memorandum he wrote to Paul Maritz, group vice president, about his "concerns for the future."

"I don't understand how IE is going to win," wrote Allchin. "My conclusion is we must leverage Windows more," he wrote.

The government case rests in large part on its charge that Microsoft is illegally "tying" one product (the browser) to another product (the operating system) to crush its browser competitor, Netscape. Allchin, and other Microsoft officials, deny that was their motivation.

Allchin, facing questions from Boies about what he meant by using Windows as leverage against Netscape, continued to insist that Microsoft's goals were broader. He dismissed the e-mail language "as very terse communications" that left out a lot.

As damaging as the e-mail messages were to Allchin's defense, at no point in this trial has Microsoft suffered a blow as severe as it did Wednesday, when it ultimately admitted a mistake.

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