MS/DOJ: Video gaffe may have killed Microsoft's case

A colossal gaffe sent Microsoft's antitrust defense into a tailspin last week, and many legal experts -- who already figured the software giant's best chance to prevail would be on appeal -- now say the case is practically closed. Microsoft has never been in the good graces of US District Judge Thomas Penfield Jackson, and a fiasco over videotaped evidence made the judge question the company's defence even further.

A colossal gaffe sent Microsoft's antitrust defense into a tailspin last week, and many legal experts -- who already figured the software giant's best chance to prevail would be on appeal -- now say the case is practically closed.

Microsoft has never been in the good graces of US District Judge Thomas Penfield Jackson, and a fiasco over videotaped evidence made the judge question the company's defense even further.

The tape was intended to show that using a program written by Princeton University computer scientist Edward Felten to remove Internet Explorer browser functionality from Windows 98 cripples the operating system.

However, government lawyer David Boies stunned the courtroom by pointing out to Jim Allchin -- a senior vice president at Microsoft who oversees Windows development -- a discrepancy in Microsoft's original video demonstration that called into question whether delays shown on a PC were caused by Felten's removal program or by Windows 98 itself.

The damage to Allchin's credibility worsened the next day, when Boies proved to the court that several different computers were used during the filming of the demonstration, by showing, for example, how an icon for the Microsoft Outlook e-mail program appeared in one frame and not in another.

Jackson said he believed Microsoft's claim that the snafu was an accident and not an attempt to deceive the court. Many observers said the damage to Microsoft's credibility will be indelible.

"Now, if you lose, you have to keep the margin of defeat narrow, and create factual footholds for yourself on appeal," said William Kovacic, an antitrust expert at George Washington School of Law, in Washington. "Microsoft has to make it difficult for Jackson to find facts in this round that would encumber them on appeal. It is a case of preparing to fight the next fight, and damage control."

Indeed, when the government ended its somewhat lacklustre case a few weeks ago, many observers said the case -- during which the government accused Microsoft of leveraging its Windows dominance to monopolise other areas -- could be Microsoft's to win.

That sentiment is rarely expressed now, but one expert agrees.

"Although Microsoft has pie on its face now, it still may finish in a better evidentiary position than [the Justice Department], which has the burden of proof," said Hillard Sterling, a lawyer at Gordon & Glicksen, in Chicago.

Jackson gave Microsoft a chance to reshoot its demonstration under the watchful eye of government officials, and the software company aired the evidence in court. However, company officials said they could not recreate one key portion of the test, which compares rates of accessing the Windows Update function on the Internet between a computer running Felten's program with one that was not.

Microsoft spokesman Mark Murray said the confusion came about after Microsoft edited the original videotape, which was filmed in the company's broadcast studios after the research had been conducted on different computers in laboratories.

Not everyone believed that explanation.

"I assume Microsoft was trying to mislead the court," said James Love, head of the Consumer Project on Technology, an advocacy group in Washington. "The history of this company is one of similar stunts."

Elizabeth Wasserman is the Washington bureau chief at The Industry Standard, an InfoWorld affiliate.

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