The government used a blunt e-mail from
Microsoft Chairman Bill Gates to challenge a witness who insisted
Tuesday that the company did "absolutely not" offer money to
Intuit Inc. to distribute Microsoft's Internet browser software.
William Poole, who negotiated some of Microsoft's Internet
deals, testified that it never offered executives at Intuit any
money to distribute its browsers over one from rival Netscape
Intuit, whose popular Quicken financial software is used by
roughly 10 million people, agreed in June 1997 to give away
Microsoft's browser, not Netscape's, with Quicken. In exchange,
Microsoft gave Intuit prominent placement of its finance services
within the Windows computer operating system.
The government alleges the deal is an example of illegal
exclusionary agreements that Microsoft brandished as part of its
campaign to "crush" rival Netscape.
In previous interviews with government lawyers, Gates dismissed
the Intuit deal, saying it "certainly wasn't something that could
have been very significant to me because I don't have a
recollection of it."
Justice Department lawyer David Boies cited a July 1996 e-mail
printout from Gates again Tuesday describing a conversation with
Scott Cook, Intuit's founder.
Gates wrote that he was "quite frank with him that if he had a
favor we could do for him that would cost us something like $1
million, to do that in return for switching browsers in the next
few months I would be open to doing that."
Poole testified previously he hadn't seen the Gates e-mail, but
acknowledged he had no reason to doubt it was true.
"Who are you going to believe?" Boies asked reporters outside
the courtroom. "Your own eyes, or what they say?" Boies on Monday
described the Gates offer as "in economic terms, a bribe, an
Microsoft explained that Intuit was already working with
Netscape in 1996 and said Gates was merely offering financial help
to cover its costs in switching technologies.
"I don't think there's any discrepancy at all," Microsoft
spokesman Mark Murray said Tuesday.
Intuit's chief executive officer, William Harris, testified
previously for the government.
Poole portrayed Microsoft's Internet agreements Tuesday as
"very common among many different industries," and called them
exclusive "only in the broadest sense."
He compared them, for example, with agreements between The Walt
Disney Co. and McDonald's Corp. to promote movies with hamburgers.
"You won't find Disney characters in Burger King kids' meals,"
Boies also confronted Poole with e-mail from Disney complaining
in October 1997 about restrictions that Microsoft had placed on its
business deals with Netscape.
In the e-mail, a Disney executive wrote: "We are being roughed
up by the 1,000-pound gorilla of the industry." Microsoft was
upset that Disney had allowed Netscape to use its familiar mouse
"I find it somewhat ironic that the King Kong of content would
be worried about a 1,000-pound gorilla," Poole shot back.
The trial, now in its 15th week, could be due for a lengthy
recess next month. The case originally was expected to take six to
In a private meeting with lawyers, U.S. District Judge Thomas
Penfield Jackson indicated he will call a break to allow
Microsoft's lead attorney to keep his vacation plans and to permit
Boies to attend another previously scheduled trial, expected to
last two to three weeks.
But the judge told lawyers not to talk about it with reporters,
according to a transcript of the meeting at the close of court
"Simply tell them that you have no comment about it because I
have not made any definitive determination yet, other than the fact
that you'll get your vacation," the judge told Microsoft lawyer
John Warden. "And Mr. Boies will get to Philadelphia by March