The trials of Bill Gates

When Bill Gates walked on stage to deliver his keynote speech at the 20th anniversary of the Comdex Fall trade show in Las Vegas four years ago, the audience probably wondered whether he would make reference to Microsoft’s antitrust case, which was just picking up steam. He didn’t offer much. After

a resigned, smirky, “”Heard any good lawyer jokes?”” he went straight into the company’s plans for its next-generation operating system.

In that moment, the software giant’s legal troubles turned into the Trial That Must Not Speak Its Name. Only the best scandals attain this kind of strange, protective veil. Everyone knows the subject has an interesting story to tell, but the coy silence creates a powerful sense of mystique. A pop culture analogy would be questions surrounding Tom Cruise’s decision to divorce Nicole Kidman or (on a more legendary scale) the reason J.D. Salinger decided to stop publishing his short stories and novels. In this case, Gates has made public declarations in response to the United States Justice Department’s various findings, but nothing as straightforward as his testimony Monday in court.

As the eighth witness to take the stand for Microsoft, Gates’ personal appearance makes all the preceding testimony little more than an opening act. As a piece of IT history, it could only have been more theatrical if Gates had been grilled by TV’s (soon to be cancelled) Ally McBeal, where no doubt the questioning would have ended with Bill, Ally and an eager jury dancing to a Barry White number. Although the real-life proceedings were probably more muted, Gates’ arguments will play a major role in the final remedies the court imposes. Though Microsoft is the defendant, this case is really about Bill Gates, and there are lot of people who have longed to see him in the hot seat.

According to various reports, Gates held up better than the first witness Microsoft called in the trial’s early days, an MIT economist named Richard Schmalensee. Though he had suggested Linux or the former Be Inc.’s operating system could have one day rivalled Windows, a government lawyer managed to get him to amend his comments. By the time it was over, Schmalensee said Microsoft faced no major competition and that this posed a restraint in the short term.

Gates did not make a similar mistake. He knows how this game is played and he is using his secret weapon — technical expertise — to the firm’s advantage. As promised, he provided his own take on the PC’s evolution and Microsoft’s role in protecting APIs and component object models for software developers everywhere. He insisted the middleware could not be removed without crippling Windows development and, by extension, the industry as a whole. These are the trump cards, and they are being played at a moment when IT’s immediate economic recovery is far from certain.

Unless U.S. District Judge Colleen Kollar-Kotelly is brushing up on some engineering textbooks, Gates’ testimony will be a powerful influence. This case has reached the point where judges often seem to look at the recommended remedies as the starting point for compromise. The non-settling states will probably be seen as asking for more than they want in order to get what they need. While few will agree that the states’ remedies are particularly onerous, Gates’ warning about their threat to high-tech intellectual property will resonate loudly.

Once Kollar-Kotelly’s final decision is rendered, she and Gates will effectively switch places. Though she will have to justify the remedy she chooses, we’ll probably never know whether she felt out of her depth in setting a legal precedent that will change the face of IT forever. There will be plenty of lawyer jokes once this trial is over. Right now it’s a battle to see who will end up as the punchline.

sschick@itbusiness.ca

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