By Siobhan Kennedy
If the government can prove that Microsoft had not actually run the Felten program in its videotape or had included other programs during the test procedure which altered the performance of the OS, it will have the most damaging effect on the software giant so far and could ultimately lead to its downfall. But even if it can’t, the government’s spot the difference games with Redmond’s videotapes has made a mockery of the company’s sworn evidence and it’s sure to raise serious questions over the software giant’s credibility in the eyes of Judge Jackson. The fact that Microsoft, the world’s leading software vendor, was forced to embarrassingly back-track on what it claimed was the sparkling jewel in its defense crown; the fact that its chief technical witness was tripped up and forced to concede, twice in two days, that the company, unwittingly or otherwise, had misled the court over crucial videotaped evidence is sure to stick in the judge’s memory. And that’s exactly what the government’s lead attorney, David Boies, wants to happen. Boies said himself he has no way of knowing whether Microsoft’s technicians did or didn’t use the Felten program. He doesn’t even know whether they used two or ten computers and he has no way of knowing exactly what applications were loaded on them at the time. Neither does he care that much. The one thing he does know is that raising these questions will serve to undermine the credibility of the software giant in the eyes of the Washington court. Mud sticks, and whether or not Microsoft can quickly come up with answers overnight as to the inaccuracies in its videotaped deposition doesn’t really matter to Boies. The fact that he’s backed Microsoft, with its million-dollar-a-day lawyers, into a position whereby it has to do the tests again is what’s important. And his strategy’s working. There were audible gasps around the courtroom today when Judge Jackson, with a puzzled look on his face, turned to Allchin and told him he found the inaccuracies in Microsoft’s videotape very troubling. And people stared in disbelief when they heard him say those mistakes cast doubts on the reliability of the entire videotaped demonstration. Outside the courtroom, Boies was like a cat that just got the cream. He now says he’s got Microsoft’s witnesses to back-track on three key issues: Monday they admitted that there are no benefits to be gained from integrating IE with Windows 98 that can’t be gained from adding the browser to the operating system separately if the user chooses. Tuesday, they admitted inaccuracies in sworn videotaped depositions which showed they had not used the software they purported to use when running crucial tests to prove that IE can be separated from the OS. And yesterday, as well as admitting they’d used numerous computers in the tests, (when they claimed to have used only one), Boies also forced Allchin to concede, through a slew of emails and memos, that Microsoft had integrated IE into Windows 98, not for the users’ benefit, but to gain market share over Netscape. Faced with that evidence, it’s no wonder Judge Jackson is having doubts.
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