In an embarrassing slip-up in Microsoft 's defence, the company's expert technical witness conceded that a videotaped demonstration was mistaken when it purported to show delays in the Windows 98 operating system caused by a program that attempts to remove the Internet Explorer Web browser -- but then came back after a break to explain what he said really happened in the tape.
The embarrassment came today, during the second day of cross-examination of James Allchin, Microsoft's senior vice president in charge of Windows, who is also testifying as the company's technical witness. On Monday, Allchin testified to the accuracy of a two-hour videotape that showed, among many other things, Microsoft employees demonstrating flaws in a program that one of the government's technical witnesses, Princeton University computer scientist Edward Felten, wrote to try to remove, or hide, the IE browser from Win98. Microsoft contends the browser is so deeply embedded into the operating system that it can not be removed without damaging operating system functions.
In order to demonstrate that "performance degradation" results from the removal program, the company's video attempted to show that the operating system was slowed when a user attempted to call up the Windows Update function. "It's taking a very long time -- unusually long -- to access that Web site," an announcer says. But David Boies, the US Justice Department's lead attorney in its antitrust case against Microsoft, introduced his own screen shots that demonstrated how a title bar at the top of the screen changed after the Felten removal program was run, from saying "MS Internet Explorer" to saying "Win98". In Microsoft's videotape, the screen still showed "MS Internet Explorer" during the purported delays.
"This video you brought in and vouched for in court and testified how much you checked, that's just wrong, isn't it?" Boies said, to the chagrin of the soft-spoken and mild-mannered Allchin, who looked like a deer caught in the headlights.
"In this case, I don't think the Felten program was run," Allchin admitted.
"It's not slow due to the Felten program," Boies continued. "It's slow because of Windows 98, isn't it?"
"The performance problem exists," Allchin countered. "I apparently didn't check the title bar close enough. But I personally tested this and I know it to be a fact."
"How could your people have run this program calling it the Felten program?" Boies went on, going in for the kill. "You do understand you swore this was accurate, don't you?"
"To the best of my ability," Allchin said.
"You know it does matter whether what you say here is right or wrong. You know that does matter?" Boies asked, mostly as a rhetorical question.
"What's on the screen is the truth," Allchin said.
"I accept you telling the truth," Boies stated, "but your trust was misplaced."
The stunned courtroom was silent through the exchange. Even US District Court Judge Thomas Penfield Jackson, who has been reported by some correspondents to have fallen asleep during portions of the trial testimony, sat on the edge of his seat.
After the lunch break, on "redirect" questioning by Microsoft's own lawyer, Allchin attempted to rectify any damage that had been done this morning. He testified that during the break he instructed the technical team that put the tape together in Redmond to look at the computer in question. After talking to his team during the break, Allchin said he concluded that the PC on the tape was in fact a "Feltenised" machine after all, and that the lack of change in the tool bar was one of the "failures" that the Felten program creates in the Windows 98 operating system.
"There wasn't any confusion about the tape being stopped or started again," Allchin testified. "It still duplicates (the test) in the same way." He also said that his staff told him that the computer in question exhibits other characteristics of a machine that has the Felten program, including removal of the IE icon and the Quick Launch toolbar.
Since Jackson is judge and jury in the case, he will have to determine which witnesses he believes and which pieces of evidence he values. The error may have thrown into question the accuracy of both the videotape and Allchin's sworn testimony. The company has already been damaged in the eyes of the judge, who has berated the company's attorneys, asked pointed questions of Microsoft's witnesses and continually ruled against the company on ancillary matters. In one of the most memorable encounters last year in a related case surrounding Windows 95, the judge shot down Microsoft's contention that removing the browser was difficult by contending that he had removed it within 90 seconds.
In a related line of questioning, Allchin conceded that some of the demonstrations of Felten's removal program were done on computers that had a variety of software installed --- not only Windows 98. Allchin had testified at his deposition that the program tests were conducted on "virgin machines," meaning computers with only the operating system installed, in order to make sure that no other programs caused the performance problems for Windows 98. Allchin said today that he had further questioned his staff and learned that some of the computers had other applications installed on top of the operating system.
The legal impact of the error on the videotape was minimised by Microsoft's chief counsel William Neukom. Neukom said the accuracy of Allchin's testimony about the removal program causing delays in Win98 was not challenged. Allchin said he has done tests on his own. "It was typical of their M.O.," Neukom told reporters outside the courtroom. "They picked a few snippets out of that tape. At the worst, there may have been an inaccuracy in one small part. [Allchin] has testified under oath that the problem does exist."
Microsoft spokesman Mark Murray said that company officials are checking to see whether there were some inaccuracies in putting the videotape together. "If there was some kind of mix up in the editing of a small portion of a two-hour video, I don't believe that that is going to undermine" Allchin's testimony," Murray said. He said the government is trying to "nibble around the edges'' of Allchin's testimony about a variety of problems caused by the Felten program.
(Elizabeth Wasserrman is the Washington bureau chief for The Industry Standard.)