Yesterday, a lawyer with Microsoft on Wednesday morning continued
his cross-examination of a university professor during the remedy
portion of the Microsoft antitrust case, by attempting to show that
the remedies proposed by the litigating states would burden not
only the software company but PC vendors and software
developers.
Earlier in the morning, US District Judge Colleen Kollar-Kotelly
said she would allow the states' attorneys to use portions of
depositions from 13 additional witnesses, even though the states'
lawyers submitted these additional witness names after the deadline
had passed.
Nine states and the District of Columbia refused to join the US
Department of Justice and nine other states in a settlement with
Microsoft last November. The holdout states are seeking stricter
remedies to the software company's anticompetitive behaviour.
Resuming his questioning of Andrew Appel, a professor of computer
science at Princeton University, Microsoft attorney Steven Holley
asked the witness about his support of the states' proposed
remedies that were outlined in Appel's written direct testimony.
Holley asked whether Windows would be at a competitive disadvantage
versus other PC operating systems, such as the Mac OS, if Microsoft
was required to remove the code of its Internet Explorer browser
from the Windows operating system as the states suggest, which
would also remove the HTTP (Hypertext Transfer Protocol) protocol
for searching the Web from the OS.
Appel answered that PC vendors that sell what the states' remedies
refer to as an "unbound" version of Windows - a stripped-down
edition that does not include extra software such as a browser -
would be likely to replace Microsoft's Web browsing software with a
competitor's product, and that the operating system would not,
therefore, be at a competitive disadvantage.
"Presumably the [PC vendors] will do what they think will sell
computers," the professor said. Appel conceded, however, that the
states' remedies would not require PC makers to make such a
substitution.
The Microsoft attorney then asked if software developers would find
Windows less attractive if it did not include a Web browsing
function.
Appel answered that he did not think so, adding that developers
could also choose to use a non-Microsoft version of the HTTP
protocol. But that would force developers to distribute the
protocol to all customers of their software, Holley countered.
"Yes, I think that would be easy to do," Appel responded.
The attorney then engaged the witness in a lengthy debate over
which portions of Windows Microsoft would need to remove in order
to satisfy the states' definition of unbound Windows, attempting to
make the point that the states' remedy is confusing.
Microsoft could keep some fragments of its middleware - software
such as its Web browser and media player that are integrated with
the OS - in the unbound version of Windows if those fragments were
called upon by the operating system to function, as long as those
middleware fragments were hidden from third-party software
developers, Appel said.
At one point, Appel said he did not know if Holley's
characterisation of what components could be kept in the unbound
version of Windows versus those that must be removed was
appropriate.
"If you don't know what's appropriate, how's Microsoft supposed to
figure it out?" Holley asked.
Earlier in the morning, Kollar-Kotelly decided that she would allow
the states to use portions of the depositions of 13 additional
witnesses, including the video deposition of Microsoft chairman
Bill Gates. Last Saturday, the states notified both Microsoft and
the judge of their intentions to include the depositions of 18
Microsoft employees in its case.
The witness lists for the remedy trial were finalised in early
February, Kollar-Kotelly reminded the states, yet Saturday was the
first she had heard of the additional 18 names. The judge had set
guidelines for the remedy hearing - such as keeping each side to
only 20 witnesses and 100 hours of court time - in order to limit
its scope and length.
Kollar-Kotelly accused the states of trying to "end run around the
time allocation" by submitting 18 additional names after the
deadline. The states' attorneys responded that they misunderstood
the judge's schedule for naming witnesses, and added that they
would whittle the list of 18 additional witnesses down to those who
were also on Microsoft's witness list, which resulted in 13
names.
Despite claims of prejudice by Microsoft's counsel, Kollar-Kotelly
agreed to let the states use portions of the 13 Microsoft
employees' depositions in their cross examinations.
During this hearing, which began on 18 March, Microsoft and the
litigating states have been presenting arguments in favour of their
proposed remedies to the anticompetitive behaviour that a US court
of appeals last year ruled Microsoft engaged in.
Kollar-Kotelly will make the final decision on which remedies are
imposed.