As the second week of trial ended here--there are no proceedings on Friday--it was unclear when government prosecutors would play the videotaped deposition, in which a supposedly combative Gates spars with government attorneys. On Monday, the government is set to call Avadis Tevanian, Apple Computer's senior vice president of software engineering.
Cross-examining AOL senior vice president David Colburn for a second day, Microsoft lawyer John Warden largely retraced steps he took yesterday. He pointed to a deal in 1995 in which Netscape Communications and AOL allegedly discussed a partnership calling for Netscape to stay out of the online market while AOL promised to withdraw software used in viewing online content.
Microsoft ultimately won the contract with AOL, so the proposed deal with Netscape never was signed.
One of the only new items introduced today concerned a separate deal calling for Netscape to distribute AOL's instant messenger application. Under a contract signed in September 1997, AOL was prohibited from carrying in a promotional section of the service "advertising for any product of service that directly competes with a product or service developed and marketed by Netscape."
The exhibits appeared aimed at deflecting criticism Microsoft has received for restricting the advertising its partners may carry, showing that Netscape is guilty of the same offense. In return for Microsoft providing its Internet Explorer to AOL, the online giant is forbidden from promoting Netscape's Navigator on its online service.
In addition to arguing that Netscape limited AOL's ability to promote Microsoft in certain cases, Warden also attempted to prove that Microsoft's limitations were more narrow than critics claim.
"You are free to rent the Goodyear blimp and put [Netscape's] name on the side of it and fly it around, aren't you?" Warden asked.
Colburn conceded the company was free to promote Netscape, so long as any promotion was "outside of the AOL service."
When Microsoft promised AOL it would include AOL's icon and software if it made Internet Explorer AOL's default browser, the online giant could not refuse. "AOL would not have been willing to negotiate a browser license with Microsoft" had it not promised the listing, Colburn wrote.
Warden also repeatedly challenged Colburn's characterization of the browser deal as being "virtually exclusive," entering into evidence documents that showed AOL subscribers were able to download and use Navigator using the online service. Colburn, however, stuck to his characterization.
"It is true, is it not, that every one of AOL's subscribers has a free and unfettered choice to use Netscape's Web browsing software if he wants?" Warden asked, his voice booming over the court's public address system.
"Yes, if they can figure out how to get it," Colburn answered.
Apple's Tevanian is expected to testify about a series of dealings his company had with Microsoft. Among other things, he is expected to say that Microsoft pressured Apple not to market its QuickTime multimedia software for the Windows platform, and that Microsoft pressured the Cupertino, California, computer maker into backing away from certain technologies based on Sun Microsystems' Java. He also is expected to testify that Microsoft threatened to discontinue its popular Office software suite for the Macintosh unless Apple made Internet Explorer the default browser on its machines.
Last week, the government said it would show Gates's deposition this past Tuesday, but apparently misjudged how long it would take Warden to cross-examine Colburn. Yesterday, the government said it would show portions of the video later this afternoon, but again ran out of time. Justice Department (DOJ) lead prosecutor David Boies has said that the deposition is an important part of his case.
"We thought it was important for [the judge] see what Mr. Gates, who was at the center of these decisions, says about the decisions, which are a central part of this lawsuit," Boies said outside the courthouse after trial recessed for the week.
However Microsoft spokesman Mark Murray rebutted criticism that Gates was less than forthcoming in his deposition. "Gates has cooperated with the government, and he spent three days answering their questions," he said. "You'll see a witness who doesn't let the government put words in his mouth, doesn't let the government bully him...."
The longer-than-expected cross-examination led Boies to speculate that the trial may last longer than the six to eight weeks originally estimated. In two weeks of trial, only two witnesses have completed testimony. There are more than two dozen witnesses remaining.