Gates puts on new face for testimony

Gates took the offensive during the first major round of cross-examination, interrupting Kuney with technical corrections to questions and with explanations of e-mail evidence designed to catch the executive contradicting himself.

Microsoft took great risk putting Gates on the witness stand, say legal experts.

Gates did not testify in person during the main trial, but at the time, government lead attorney David Boies effectively impugned the Microsoft co-founder's credibility by showing select snippets of a videotaped deposition. Those portions of the tape made Gates appear either ill-informed or evasive during questioning. But it was a different story this time around.

"Gates' demeanor was good, and that was important for him," said Bob Lande, an antitrust professor with the University of Baltimore School of Law. "This is not the Gates we saw in the earlier deposition."

The proceedings before U.S. District Judge Colleen Kollar-Kotelly, to determine a remedy for Microsoft's antitrust violations, entered their sixth week Monday. They are part of a continuing effort by nine states and the District of Columbia to bring harsher terms against Microsoft than those reached by the Justice Department and nine other states in a settlement proposed in November.

Gates took surprising charge during the cross-examination. At one point, Kuney introduced a 1998 e-mail, in which Gates described Microsoft's work to render Office documents in other companies' Web browsers as "one of the most destructive things we could do to the company." Kuney tried to show that Microsoft strives to prevent its products from working with so-called middleware--such as Web browsers--produced by its competitors.

But Gates attempted to turn the e-mail against Kuney, explaining that he sent it because employees were working on creating PowerPoint presentations that would display in other browsers and "making no progress on it." Gates invited Kuney to review the remaining e-mail messages in the string for context. The states' attorney moved on to another topic.

Kuney spent much of the afternoon focused on two areas: the interoperability of Windows with other products and how that relates to technical disclosure, and whether the states' proposed remedy might allow the cloning of Windows and how Microsoft views cloning.

During the early questioning, Kuney attempted to get Gates to compare certain provisions of the states' remedy against the Justice Department settlement. Kuney was supposed to restrict his cross-examination to Gates' written testimony, submitted earlier, which did not mention the DOJ settlement proposal.

After several objections by Microsoft attorney Dan Webb, Kollar-Kotelly cautioned Kuney. "You're doing a very nice job of very slowly opening the door" to discussing the settlement, she said.

Kuney repeatedly asked Gates if Microsoft attempted to "frustrate interoperability" between Windows and other software. In response to a question, Gates told Kuney that he never instructed anyone at Microsoft to withhold application programming interfaces (APIs) necessary for allowing third-party software to work well with Windows. Gates also emphasized Microsoft 's attempt to fully disclose APIs necessary for interoperability. "Our sharing information with developers is part of the success of Windows," Gates said.

Kuney asked Gates if Microsoft applications use APIs not available to other programs. He asked Gates if he considers Office an application.

"I do," Gates responded. "The state-proposed decree puts it in another category"--middleware. Gates conceded that occasionally Microsoft discovers that Office is using an API that other programs don't have access to, but he said the company discloses the information as soon as it's discovered.

Kuney and Gates also sparred over disclosure related to middleware. "It's a term of such ambiguity, you wouldn't find me using it outside of the lawsuit," Gates said.

Later, Gates told Kuney about the states' definition: "Middleware is defined very broadly. It's defined explicitly to include Microsoft Office. It forces us to take the internal interfaces of Microsoft Office and publish them." That would give away for free valuable Microsoft intellectual property.

Following a brief recess, Kuney moved on to the issue of cloning. In his written testimony, Gates charged that the states' level of code disclosure would allow widespread cloning of Windows.

"You think cloning is a bad thing?" Kuney asked.

"There's a cloning people can legitimately do, without the decree...and there's the cloning with the states' proposal in effect," Gates testified. The latter would "take away Microsoft's intellectual property (and) give it away for free."

Kuney then spent a long time probing Gates about what he considered to be legitimate cloning. Gates indicated that such cloning would involve creating the same functionality as another company's product without violating that company's intellectual property rights, or by licensing those rights from the company.

Kuney did score some hits against Gates, and through other questions set the stage for attacking Microsoft's chair during Tuesday's cross-examination.

Gates had attacked the remedy proposal's requirements regarding the level of disclosure on how Microsoft software works with other programs, saying that it looked like developers were supposed to disclose software details before they had even conceived of the software, and thus, that under the states' remedy, once Microsoft software developers thought of a new idea, they would already be in contempt of court. But Kuney effectively depicted this as an exaggeration.

Likewise, the states' attorney scored a hit on Gates' contention that access to Windows source code in a "secure facility," or a monitored location, would be enough to allow widespread cloning of Windows, despite the enormous length and complexity of the operating system's code.

Assessing the points Kuney scored, the University of Baltimore's Lande concluded, "He got Gates on one contradiction and a couple of exaggerations."