By Nick Patience in Washington
Those in the court probably realized what they were in for yesterday afternoon when Professor Franklin Fisher arrived with five stuffed ring-binders to aid him in testifying as the last government witness in Microsoft antitrust case. And indeed it proved to be a tedious afternoon of comparing data and data collection methods and backing up and disputing claims of how to measure browser market share and even what the term means. Many observers felt that Microsoft attorney Michael Lacovara was making up for Judge Jackson cutting his time short with an earlier witness, fellow economist Frederick Warren-Boulton, who was on the stand for five days before Judge Jackson requested Lacovara to stop, despite him wanting to question Warren-Boulton about figures from AdKnowledge Inc, a web-traffic measurement firm (12/03/98). Lacovara launched straight into the figures that were compiled on behalf of Fisher and his team at the Massachusetts Institute of Technology (MIT) and the pair spent a couple of hours dueling about their accuracy and relevance to this case. The rest of Lacovara’s questioning was designed to undermine Fisher’s credibility in the eyes of the court. Fisher is a well-known expert witness in the US, having been called to testify in around 20 high-profile cases over the last 30 years, but none as high-profile as the antitrust case against IBM Corp, where he was the lead IBM economic witness and which dragged on in various formats for 13 years before IBM prevailed. Fisher worked with David Boies on that case, who was then retained by IBM but who is now the lead attorney for the Justice Department, and it was Boies who approached him to testify in this case back in February 1998, three months before the suit was filed against Microsoft. Fisher’s lengthy written testimony, published yesterday morning was strongly criticized by Microsoft as a complete reversal of his previous position on antitrust matters. Fisher wrote two books about the IBM case and Microsoft claimed that his current testimony would give readers of his 1983 book whiplash. Similarly, Lacovara set out about trying to discredit Fisher in any way he could, leading to the somewhat absurd situation where Fisher’s invoices for his work on the case were shown in court as evidence (of what nobody seemed sure). As happened in early December with Warren-Boulton, Lacovara quickly became bogged down in discussions over AdKnowledge’s methodology, and Fisher’s reliance on the figures. Lacovara claimed that this as the first such survey of browser market share that the company had ever done, and Fisher agreed. Lacovara pointed out that the figures, which showed Microsoft starting 1997 behind Netscape but ending up far outstripping it recently in terms of browser market share, excluded browsers within corporate intranets as well as users of the AOL proprietary online service. Fisher retorted that it was internet, not intranet usage he was after, but acknowledged that AOL was undercounted in the AdKnowledge data, but that fact was already known, he said. Lacovara criticized Fisher’s use of weighted averages, at which point Fisher exclaimed: But that’s what you want! It’s quite misleading to take un-weighted averages. Lacovara then tried to get figures from Giga Information Group used by Fisher struck from the record because they were so inaccurate, but the government objected and they were left in. The two then sparred about whether it was better to measure by browser usage or browser distribution, the latter being Fisher’s preference. The afternoon concluded by Lacovara confirming that Fisher had never done any studies before about browsers, operating systems, Java and so on and went through some previous examples of his work where the court ruled against the side he was working for, such as in Kodak vs Polaroid, and CBS vs ASCAP, which prompted Fisher to end proceedings by warning Lacovara, only half-jokingly, you know what’s going happen on redirect don’t you? Which brought a smile to Judge Jackson’s face.
