Microsoft Corp. was embarrassed for a
third day running in its antitrust trial Thursday when it
acknowledged that it had failed in an attempt to duplicate a
computer test called into question by the government earlier
The software giant had won permission from the trial judge
to do the test again after suffering two days of embarrassing
gaffes over showing a flawed video of the test.
Microsoft spokesman Mark Murray initially told reporters
Thursday morning: "I think that we've been able to resolve once
and for all any questions about the videotape production."
But later in the day Microsoft had to admit things had gone
Microsoft said it could not get a consistent connection with
the Internet to do the test. It was also supposed to do the test
in the presence of government lawyers and computer experts but
said it had barred Justice Department officials from entering
the room while the computers were set up.
"Each time we connected we got a different performance
rate, a different sized pipe," said Tod Nielsen, a Microsoft
official. "So it would have been unfair to either side to
compare, you know, one machine at one rate with another machine
at another rate."
Microsoft general counsel Bill Neukom tried to dismiss
reporters' questions about the credibility of Microsoft's tape
as nothing but a "sideshow."
The Federal government and 19 states have accused Microsoft
of integrating its Internet Explorer Web browser into Windows 98
so it could compete unfairly against a rival browser made by
Netscape Communications Corp.
Microsoft first showed the video Monday to demonstrate that
the browser was a part of the Windows operating system and that
removing the browser in the way suggested by a government
witness degraded performance.
But in two dramatic days in court, government lawyer David
Boies challenged Tuesday whether the video was actually showing
a computer with the browser removed in the way suggested by the
government and Wednesday pointed out that the videotape seemed
to have been spliced to show two computers as one.
The flawed video had shown the degraded rate. But Judge
Thomas Penfield Jackson said that he believed the entire video
had been discredited and he could not believe it.
At a bench sidebar with the judge Wednesday, Microsoft won
permission to redo the video.
Government lawyer David Boies asked if government
representatives could be present and a Microsoft lawyer agreed,
as did the judge.
"Yes, that would be the best way to do it," said Jackson.
But when government officials arrived at Sullivan &
Cromwell, the law firm representing Microsoft, they were barred
from entering the room where the computers were being set up.
They were later allowed in.
When reporters tried to question Microsoft's Neukom in
detail about the reason the government lawyers were barred, he
cut off the questioning with this comment:
"Call me old-fashioned, but I want to invite each of you to
take just a minute today and think about my assertion that what
you just witnessed this morning is thousands of times more
material and substantive to this controversy and the PC software
industry than this sideshow of melodrama about four minutes of
He was referring to the testimony of Michael Devlin, who
operates a software company. Devlin said that Microsoft provided
helpful support to him in an alliance.
In answer to questions on cross-examination, Devlin
acknowledged that he had told the Securities and Exchange
Commission that any time Microsoft chose it could use
information it gets from an alliance with his company to
"develop or market competing products."