Microsoft's defense of its exclusive contract deals hit some bumps yesterday when questions were raised about a new videotaped demonstration and a witness's courtroom answers didn't always match the written record.
Cameron Myhrvold, vice president of Microsoft's Internet customer unit, was combative in court after being confronted by seemingly damaging e-mails and statements from his own written deposition.
The problems for Microsoft began as soon as Myhrvold took the witness stand this afternoon. Before he was questioned, Microsoft showed a videotape that purported to show the ease and speed of use offered by the Internet technologies included in Windows 98, versus Windows 3.1. The demonstration included a file download.
But David Boies, the lead government attorney, pointed out that two different Compaq Computer models were used in the demonstration and suggested that each had a different modem operating at different speeds.
Boies' question about the different modems immediately garnered a razor-thin smile from Judge Thomas Penfield Jackson.
Last week, Boies was able to prove that Microsoft had used multiple PCs to film a videotape demonstration after the company implied that one PC had been used. Jackson had credited Boies with doing "a very professional job of discrediting those tapes."
This time around, Boies suggested that the PCs had used different modems: the PC with Windows 3.1 loaded included a 28.8 Kbit/s, and the PC loaded with Windows 98 used a 56 Kbit/s.
When questioned about the latest video, Myhrvold at first said both machines had used a 28.8 Kbits/s modem. But when pressed, he said that what mattered most was ease of use.
Boies, however, persisted and said the tape was trying to show "not just the ease of use but the speed."
After court recessed for the day, Microsoft officials said the Windows 98 PC had a 33.6 Kbits/s modem, not 56 Kbit/s, while the Windows 3.1 PC used a 28.8 Kbits/s modem. The difference in download times for the size of the file in the demonstration would have amounted to 22 seconds, said Microsoft officials.
In other questioning, Boies asked Myhrvold about the importance of browser distribution in winning browser share.
The government has alleged that Microsoft used its monopoly power in the operating system market to hurt Netscape Communications' ability to distribute its browser. It did this, in part, by making deals with Internet Service Providers (ISPs) to include them in the Windows desktop online services folder but only if they agreed to limit distribution of Netscape's browser to customers, the government alleges.
Boies hit Myhrvold with e-mails and deposition testimony in an effort to show a strong link between Microsoft's browser distribution and market share goals.
Myhrvold seemed trapped by his own words.
In one courtroom exchange, Boies asked Myhrvold about a statement he made in an earlier deposition. In that deposition an attorney for the government asked Myhrvold: "Would it also be likely you would be successful if your browser competitors didn't have as much distribution as you did or as many distribution opportunities?"
Myhrvold had answered: "Yeah, I think we agree with that."
When asked in court today whether he spoke those words at the deposition, Myhrvold said, "I don't know. I know when I read my transcript I was surprised it read this way." Myhrvold said he had subsequently changed his deposition, deleting the entire answer.
But Boies, sarcastically, said, "You decided you didn't like the answer."
"I do not recall that being my answer. Maybe I did say that," responded Myhrvold.
Boies asked Myhrvold about whether as part of the online services folder requirement an ISP had to commit to ensuring that 85% of the browsers it distributed were Internet Explorer.
"That's absolutely wrong," answered Myhrvold.
But Boies pulled out a May 1996 e-mail in which Myhrvold wrote that the requirements for being in the online services folder "are high and they will have to commit that 85% of the browsers they ship to their customers will be IE."
Myhrvold didn't deny writing it, but he said he didn't know what kind of agreements were made with ISPs.
Microsoft officials said after the court session that those agreements will be discussed by the company's next witness, Brad Chase, vice president for Windows marketing.
In a closed door meeting with attorneys for both sides yesterday, the judge indicated he would like to finish Microsoft's presentation of its witnesses by the end of February. He also said he was considering calling an extended break in the trial in March to allow attorneys for both sides to fulfill prior commitments.
Myhrvold is Microsoft's sixth witness. After Microsoft presents all 12 of its witnesses both sides will present two rebuttal witnesses each, followed by closing arguments and other procedural activities.
(Patrick Thibodeau is a senior writer at Computerworld.)