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Gates on the Stand

Bill Gates was back on the witness stand Wednesday after keeping calm for two days of testimony, in which he portrayed a gloomy scenario if non-settling states' proposed remedies were to go into effect.

Gates' time on the stand was made slightly easier because U.S. District Judge Colleen Kollar-Kotelly frequently sustained objections to questions posed by attorney for the states Steven Kuney.

Gates is testifying in one track of the remedy phase to determine how Microsoft's antitrust violations should be corrected. The case entered dual tracks when nine states, including California, Connecticut and Iowa, rejected a settlement agreement between Microsoft, the Department of Justice and nine other states. The non-settling states want stronger remedies than those called for in the settlement.

The courtroom demeanor of Microsoft's chairman and chief software architect has been an improvement over his emotional performance in a 1998 videotaped deposition. This time, his lawyers delivered 156 pages of written direct testimony from Gates prior to his appearance. On the stand this time, Gates has kept a smile on his face, although it has been strained at times and has sometimes been accompanied by nervous laughter.

Gates contends the states' remedy proposals would quash original work on Windows, give Microsoft's intellectual property away to competitors and prove so difficult to implement that Microsoft would have to remove Windows from the market in order to comply with the court order.

Much of Kuney's questioning over the first two days of testimony were aimed at showing Gates' view of the remedies to be alarmist.

Gates and Kuney sparred over the states' strongest proposal, which asks the courts to require Microsoft to release a "modular" version of Windows free of middleware such as Internet Explorer and Windows Media Player.

Kuney won a concession from Gates when he forced Gates to acknowledge that no one at Microsoft is currently working on a "modular" version of Windows.

Kuney pressed Gates on whether he would assign engineers to try to create a modular version of Windows. Gates indicated that Microsoft's first choice will be to keep fighting in court.

"We'll come back to every court who would listen to us," Gates said. Eventually, after repeated questioning, Gates allowed that he wouldn't reject anyone who found a solution to the modularization problem. He still maintained that the separation is not feasible.

Gates said the components are too dependent upon each other, and that functions that rely on the removed code would fail.

Kuney pointed out that states' witness Andrew Appel, a Princeton University computer science professor, had discussed four ways Microsoft could remove programs from Windows. Gates answered that each of those ways was flawed technically or violated some other aspect of the proposed remedies. When Kuney baited Gates by asking if he thought he knew more about Windows than Appel, Gates replied: "I guess you could say that."

Amid sustaining several objections made by Microsoft attorney Dan Webb to questions and phrasings used by attorneys for the states, Kollar-Kotelly prevented an attorney for the states from introducing new evidence. At issue was an August 2000 memo from Gates to CEO Steve Ballmer dealing with Intel.

Kollar-Kotelly has allowed states witnesses to introduce evidence involving other markets than the ones Microsoft was already found to have an illegally-maintained monopoly. However, she is not allowing evidence involving new acts that are allegedly illegal.

About the Author

Scott Bekker is editor in chief of Redmond Channel Partner magazine.

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