Reading the Daily Wrap and Flow is a quick and easy way to follow the ebb and flow of the trial. This link will always contain the latest commentary making it easy to bookmark and return to for the latest information. This column is updated throughout the day with the latest commentary placed at the top.
[The column this week contains 21,253 words. Of course much of this material is quoted from the transcript, however, I have tried to add extensive comments to the quoted material. What you are reading is the first draft with only a few corrections. As you may guess, it has taken some time to read the transcripts and prepare these comments. I apologize for any errors in spelling or grammar.]
February 5, 1999 - Friday
5:20 P.M. PST - Is the Microsoft antitrust trial over?
No. Not at all. But, it might be past the point where the DOJ will accept any offer of settlement from Microsoft. At least not any offer they might make.
You have to remember that this same judge drafted (approved) a consent decree on this same issue. And, then Microsoft proceeded to thumb their nose at the judge and everyone else.
Microsoft has no defense. The only competition they seem to identify consists of ghosts and pirates. Microsoft is not in the movie business so they do not count. Sure other technologies might offer competition in the future but they clearly do not do so now. All technologies from Netscape, Sun and Be also require or come with the Windows OS. Linux, Apple and OS/2 might count, but Apple distributes IE after being brown nosed by Microsoft. Apple is no threat. And, Apple represents roughly 10% of the consumer OS business.
It is about that time when the appropriate remedies are considered.
Remember you cannot trust a single word coming from Microsoft. Microsoft agreed to the consent decree preventing IE being a precondition of buying their OS. That agreement written in part by this judge was flatly ignored by Microsoft simply because they figure they did not need to follow any law or agreement. That is very clear.
1:00 P.M. PST - The "fixed" version of the bogus video does not show much.
The modified version of the Microsoft bogus video helps very little.
Clearly the Felten modifications were offered to simply show that disabling IE does little to the normal operation of the system. All Microsoft has shown by their fake video and the fixed video is that when IE is removed, browser activities are removed or at least frustrated. Anyone would expect that.
No evidence to date suggests that IE and the OS are not two separate products. No evidence to date suggests that a browser must be included with each purchase of a computer. A OS is required. A browser is not.
And no evidence to date suggests any benefit realized by any consumer or customer by being required to buy both.
Felten's little test does not remove IE, it only disables it. 98Lite, which has yet to make an appearance at the trial, does a lot more. 98Lite removes IE from Windows 98 making it a superior product. (See the many discussions on 98Lite below.)
12:23 P.M. PST - ...and, if they do not want to buy IE and use it exclusively, we just force them to buy IE and force them to use IE?
Transcript Feb 4, PM: (back with Mr. Allchin)
q. Mr. Allchin, if, as you say, the decision was made to include Internet Explorer or some sort of internet browsing technology in windows at the shumway
mansion in april of 1994, why was there still discussion about integrating Internet Explorer into windows in the later documents that mr. Boies showed you
yesterday afternoon on recross?
a. Because it's something that even today we're not very happy with. At least there's always more to do. It's a continuum. As each release of the
component dealing with IE has come out, there has been new things, new technology within it, and new ideas we have about unification. We have a
version of technology of windows 2000 coming up that's going to have additional unification. today, when you search, for example, you cannot search
directories on the internet and directories within your company and search for other information on your local disk and other files in a unified way, and
that's something that we're adding there, which is, again, more unification. So, it's something that we're constantly improving. We are constantly talking to
people and seeing what it is they say they like.
Please identify the names of these "people" that determine what products are bundled together.
50% of internet users prefer Navigator, certainly these people have not been talked to.
A large percentage of Microsoft customers do not want any browser at all, clearly these people have not been talked to.
This is false testimony.
The implication is that if some people might want a product (which I do not doubt) then all consumers should be forced to buy it. Only an extremely arrogant and powerful monopolist can so conclude.
Hint: Without monopoly power, bundling unwanted products just does not work.
If Microsoft surveys Microsoft Word users, do you suppose they would argue that Word ought to be bundled with the OS? I am sure they would.
Maybe those customers who do not have Word now, should polish off their plastic?
12:05 P.M. PST - What? No commercials? ...Oh...commercials?...great.
r. holley: Having been chastised for editing, we didn't edit it.
the court: You didn't even take the commercials out?
mr. burt: I'm afraid not, your honor.
the court: Okay.
Things do get nasty in court sometimes, but you have got to keep your humor.
11:40 AM PST - More economic factors that got by Mr. Schmalensee?
Transcript Feb 4, AM:
q. Now, in terms of redistributing DLL's, could you tell us some of the reasons why it's advantageous to Rational or its customers if Rational does not have
to redistribute the DLL's -- the Microsoft Windows DLL's that it uses?
a. Well, as I already mentioned, there's higher cost for us, not just in the fact that the customer may refuse to accept those dll's, but our customer support
costs are higher because if we install the dll, the customer tends to hold us responsible and call us rather than the platform vendor. from a development and
manufacturing point of view, it increases our costs because we have to put more software through our manufacturing process. for the user, the impact is
that the installation is slower because they have to install more software. They may run into complications where a dll that we want to install conflicts with
or replaces a dll that they had installed for some other purpose that we don't know about. and so the more we can stay away from distributing other people's
software, the better, because all we want to know about that software is the interface to that software so we can use it. We don't want to know the internals
of that software or its dependencies on other things. We just want to use the interface to efficiently build applications more quickly of higher quality.
I do not disagree with this answer. However, what it shows is that ISVs are in fact subsidized by Microsoft. Consumers are forced to buy more and more technology from Microsoft and the costs for ISVs to write to the monopoly platform are reduced accordingly.
As I have mentioned, I would love to have Microsoft force all consumers to pre-install the Borland Database Engine. That would help me a lot, right? As a developer, my costs of distribution for products that rely on the BDE would be greatly reduced if they did that. But, if Microsoft just forces all consumers to buy Office Pro, then all potential customers have been forced to install Access, a Microsoft Data Base system. Once they do that, I must drop the use of Paradox and convert to a proprietary Microsoft product regardless of merit, right?
This testimony only points out how difficult it is for any technology to compete with Microsoft when they use their monopoly power to force technology upon their own customers. Hint: Customers pay money. ISVs are subsidized. Competing technology is precluded.
Amazing how a smart economist does not understand pretty simple concepts present in the computer software industry.
Do you suppose he was hired by Microsoft because he did not understand?
11:30 AM PST - Only Microsoft technology ought to be force distributed?
q. Now, you said in responding to my question, Mr. Devlin, "The user interface and networking technologies should be part of the platform." Do you view
the Internet Explorer technologies as user interface and networking technologies?
a. Yes. A browser is a paradigm for the user to interface to applications and software and data and integrates into it access to the network technologies. So,
yes, it is.
And, I am sure that any ISV that markets add-ons for Microsoft Word would argue that all consumers should be first required by Microsoft to buy Microsoft Word than then be available as potential customers for their add-ons?
Maybe Microsoft should be forced to distribute any and all GUIs, Networking or Internet Technologies?
Or, does this witness mean to say that only Microsoft technologies should be forced upon all consumers?
What do you think? Do you think he was talking about all of the technologies or only Microsoft technology?
11:14 AM PST - Michael Devlin wants all manufacturers to force all consumers to pre-purchase technology?
Transcript Feb 4, AM:
q. From Rational's perspective and the perspective of your product managers, should the Internet Explorer API's and DLL's -- the ones you talk about in
your direct testimony -- should they, from your perspective, be part of the operating-system platform or not?
a. Certainly from the perspective of a company like rational, the user interface and networking technologies have been part of the operating systems for
many years, and these services are part of the basic operating system that we depend on. Otherwise, we have a lot more work to do if the platform vendor
doesn't provide that.
Of course, Mr. Devlin. When I write applications that depend upon the Paradox data base engine, I want all potential customers to be required to pre-purchase, install and load the Borland Database Engine, right? But, that does not make the BDE part of the OS.
Actually, he makes a point here which is false. His answer suggests that the GUI and the Network have been part of the OS for years. This needs to be clarified. It is not so with any DOS version. It is not so with Linux. It is not so with Unix. Bundling of technology by Microsoft has been a very affective way to preclude competitors on the Windows platform in a number of product categories: GUI, Networking, Disc compression and now browsers and Java. You can say they are part of the OS if you believe that only one vendor (the monopolist) should be permitted to offer advanced technology. But, if you believe in fair an open competition in all markets, they should be excluded from being bundled with the OS.
Bundling with the OS is an effective means of precluding cross platform benefits from being available to customers.
Devlin should understand this. His own customers want cross platform capabilities, not capabilities limited only to a
single platform.
10:25 AM PST - Michael Devlin, Rational Software, takes the stand
Transcript Feb 4, AM:
q. And you go on to say that when Microsoft's IE systems are more widely distributed or distributed widely enough, in your language, you hope to be able
to rely on their presence and not have to ship them yourself.
a. Correct.
First Q&A demonstrating the subsidies flowing from a monopolist to an ISV.
What is unlikely to be shown by this witness is that any benefit could not also be realized by Microsoft marketing IE as a separate product with the exception that forcing all consumers to buy IE, the market for the ISV is naturally larger in size.
This ability of Microsoft to make its products more attractive to ISVs simply by forcing the sale of IE was discussed by Microsoft's own economist, but he falsely concluded it was not a factor increasing burdens to entry in the consumer OS marketplace. Mr. Schmalensee testified falsely in that regard. He was just presenting false testimony to hide or cover the importance of this concept.
It is not necessarily illegal for Microsoft to help ISV directly or indirectly, however, when they do so they increase the costs of entry into that market by any potential competitor. That itself is not necessarily illegal either. However, Mr. Schmalensee testified that barriers to entry did not exist in any meaningful way. His testimony is just falsified in that regard.
Mr. Schmalensee suggested that the network affect and the tipping affect had no meaningful impact upon the barriers to entry and thus the power of a monopolist. That conclusion of his is just fabricated for the purpose of defending the monopolist, Microsoft.
This testimony from Devlin illustrates how invalid Mr. Schmalensee's testimony was. Rational Software used to develop Unix software almost exclusively. But, he has been attracted to the Microsoft platform mainly because of the dominance of the platform and the willingness by Microsoft to force IE upon all consumers to provide a customer base for Rational products. This is the "network" and "tipping" concept in play.
9:00 AM PST - A short comment on falsified evidence
Microsoft introduced a video into court making one representation. The DOJ challenge that video on the basis of the representation made. Once the video was shown to be a fabrication or fraud, Microsoft then made up a story about the video only being an "illustration". This is likely not to be believed by the court. Why should he? The lawyer for Microsoft even suggested to the judge before the video was shown to be a fraud that he was an officer of the court (which he is, I assume) and that he vouches for the evidence. It is never a good sign when an attorney reminds the judge that the attorney is an officer of that court. The judge knows that. The attorney knows that. And, now the judge knows that the video was clearly misrepresented to him in his court. The creditability of the witness (Allchin) and the creditability of the evidence (the bogus video) is not all that was lost this week. The creditability of the Microsoft lawyers was also lost.
Was it incompetence or fraud? You decide. What would you think if that video were part of a sales or promotional campaign? And, then you find out that what Microsoft said it showed it did not show at all. It was just fabricated. It was no more valid than a paid for advertisement. Perhaps less so.
The real problem is that the bogus video is just the tip of the iceberg. The economist who testified presented false evidence as well. James Allchin also has testified falsely as did Maritz.
So far, the entire Microsoft defense is a fabrication. The testimony of live witnesses is illogical and unbelievable. Allchin claims that the integration was done for technical reasons, yet not one technical reason relates to bundling the products. The only technical concept related to the bundling is a degradation of performance caused by increasing the OS some 20-25% in size. 98Lite has not made its appearance in court yet. But, Microsoft is putting on the evidence at this stage. The problem is that their own evidence does not show what they claim it shows.
Microsoft claims the two products are integrated. But the testimony coming from Allchin only proves the DOJ's point that the integration was done to preclude competition, not to offer any advantages to customers (OEMs) or consumers. The OEMs did not want it, but Microsoft ignored their interests completely.
February 4, 1999 - Thursday
6:30 P.M. PST - Sounds like Microsoft falsified a video and falsified evidence to trick the court
Also see this link on the bogus video.
Microsoft admits the video is a fake.
What is the criteria? If you can not reproduce the problem, you can not identify it either? Right?
Microsoft has clearly presented false evidence in this case. The audio clearly explained a conclusion for a delay on the tape. Now Microsoft claims that it is not possible to reproduce the problem? Because of bad phone lines? Bad phone lines would help Microsoft. Bad lines would increase any delay, not?
More likely than not, Microsoft has got caught with false evidence. The issue they were trying to prove was not even an important one. I would not expect Felten's fix to be problem free.
Maybe 98Lite will help them out. Maybe Microsoft can prepare a scientifically valid test of 98Lite?
6:07 P.M. PST - Judge Jackson bends over backwards to let the bogus video be repaired
the court: I do not believe that he deliberately falsified this, but it does cast serious doubt on reliability of that exhibit all together. If you would like to have an opportunity to have him go back and do it himself and videotape it while he does it himself and then come in and tell us what it shows--
mr. Holley: I would, your honor. I apologize that this demonstration, which is what it was, got bullocks'd up, and I'm confident and represent to the court as an officer of the court that we did nothing to these demonstrations.
the court: I didn't think he did, but Mr. Boies has done a very professional job of discrediting those tapes.
mr. Holley: Well, the test results were what they were, and we are confident with that, and I would like, your honor, the opportunity tonight to do exactly what your honor suggests. So, if we could recess until tomorrow morning.
The judge is being too kind. What do you think? Incompetence or fraud?
Any one interested in getting a VHS video that proves performance claims from Microsoft? A Microsoft lawyer will vouch for it?
5:19 P.M. PST - Even subordinates fully understand how to wipe out Netscape (and all browser competition)
q. Who did he work for?
a. He worked for Richard Tong, who worked for me.
q. That is, he worked in your organization?
a. Yes, he did.
q. Now, let me direct your attention to what he says at the top of page three, where he says, "Internet Explorer has a much stronger chance of winning once
it is integrated into the operating system. An integrated browser makes Netscape a nonissue, a superfluous product for all but the most committed Netscape
user." Do you see that?
a. I do, sir.
q. Do you agree with that, sir?
a. Uh, do I agree with that? I don't know what he's basing this on. You already know that I believe deeply in integration for many reasons, so I--I don't
know what he's basing this on. Do I think that it has a stronger chance of winning?
q. No, that wasn't what I was asking.
a. Okay, sorry.
q. What I was asking is whether you thought it had a much stronger chance of winning once it is integrated into the OS because an integrated browser
makes Netscape a nonissue, a superfluous product for all but the most committed Netscape user.
a. I would say that the platform, meaning windows and IE together, and all the other components have a better chance of winning against Netscape, that's
correct.
q. Because an integrated browser makes Netscape a nonissue?
a. Well, I think that that's--
q. A superfluous product for all but the most committed netscape user?
a. Well, I certainly wouldn't phrase it that way, obviously, that there--it's a very competitive situation, so I don't know how he's concluding it's a nonissue.
q. He goes on to say, "the proliferation of internet usage means these products are reaching the masses: users who would be happy not to have to think
about browsers or downloading new versions. The same users who currently say, `why should I bother downloading a new browser, switching, learning
something new,' will have the same reasons to use an integrated IE 4 and abandon Netscape." Do you agree with that?
a. I don't have the knowledge to know.
Perhaps not. But, if Allchin does not understand this issue (which I do not believe for a second), how can anyone at Microsoft suggest that IE use is increasing or being distributed on the basis of its merits?
6 months or 12 months from now the only reason all consumers will have IE will be because it is a better product, right Mr. Allchin?
Microsoft hires a so-called economist claming to know all about the computer industry but not understanding what a subordinate has no problem laying out on the table.
Microsoft integrated the browser solely to preclude a competitor. The act of integration itself violates antitrust laws.
4:50 P.M. PST - The big push on IE delays OS improvements that count?
q. And the number one big issue dealt with the Windows 98 plan; correct?
a. The memphis plan, yes.
q. And Mr. Kempin did not agree with the plan; correct?
a. That's what it says here, yep.
q. And indeed, Mr. Kempin planned to raise his problem with Mr. Maritz and Mr. Gates; correct?
a. That's what it says.
q. And you believed that Mr. Kempin wanted a memphis-like product with all the new hardware support minus IE 4 to be made available in June; correct?
a. That's what it says.
q. And Mr. Kempin wanted IE 4 to be added the following year; correct?
a. That's what it says.
Well. I guess even Microsoft has a limited ability to do all things at once. But, the key to this discussion is that forcing the sale of IE was given a very high priority. And, that priority had little or nothing to do with consumer benefits or features. Those benefits could be realized by the IE 4 application. No. It seems that wiping Netscape off the map took top priority. OEMs be damned. Customers be damned. Consumers be damned.
4:30 P.M. PST - Force the product even if OEMs suffer
Transcript Feb 3, PM:
q. Now, let me go to government exhibit 50, which is already in evidence.
(document handed to the witness.)
q. And this is an e-mail from Mr. Maritz to you and then a reply from you to Mr. Maritz, both on January 2, 1997; is that correct?
a. That's correct.
q. And Mr. Maritz is saying that with respect to IE and Windows, again he's saying that Microsoft has to make Windows integration its basic strategy. Do
you see that?
a. Yes.
q. And in your response to that, you say you agree with that?
a. Yes.
q. And you say, "it's the only thing that makes sense, even if OEM's suffer." Do you see that?
a. I do.
What is clear from this Q&A is the plan to integrate was a benefit only for Microsoft. The suggestion here is that such benefits do not even go as far as the OEM channel. They are being forced to suffer in trade for Microsoft forcing the so-called integration of IE into Windows. I am not saying hat none of the OEMs or ISVs would want IE included (as clearly Microsoft found one to be the next witness), but Mr. Allchin and Mr. Maritz are well aware that forcing IE upon customers and consumers is not going to benefit them at all. Even the OEMs want a choice of browsers. But, despite this knowledge, key Microsoft people are bundling the products simply because to will preclude competition in browsers. Right now, Netscape is wiped out. But, all possible competitors are precluded. (Unless of course, you are an ISV and agree to use Microsoft technology. If you use Microsoft controlled technology, then you can exist. Otherwise, not.
3:55 P.M. PST - Finally a true answer out of James Allchin
q. Mr. Allchin, are you aware of OEM's saying they didn't want to load two browsers, that there were costs and inefficiencies to having two browsers on
the machine? Have you heard that?
a. I may have heard it, but I don't know anything about it.
q. Did you hear it from people within Microsoft?
a. Yes. I don't know whether I read it in the press. I don't know where I heard it, but I have heard something like that, yes.
q. Did you ever try to find out whether that was true?
a. Personally, no.
It is very clear that the needs and wants of consumers and customers are just not relevant to any decision Microsoft makes. Forget the whole idea of customer benefits.
I guess Allchin is so self centered in his thinking that it is out of the question that a single customer or consumer might not want to buy the entire Microsoft product line. When such an issue is raised, he just discards the idea?
I guess the royal subjects need to just shut up and get out their plastic? "What I mean is that it will be great and that customers can use it." (quoted below from the transcript) Arrogance extraordinaire.
3:35 P.M. PST - Can James Allchin really be this dumb?
q. And when you say, "so that netscape never gets a chance on these systems," you mean because IE will already be there and will not be removable;
correct, sir?
a. No. What I mean is that it will be great and that customers can use it. There is no reason that Netscape doesn't can't be shipped on OEM machines. I
just bought one on Tuesday, and Netscape is on the desktop. So, it's not a question of that. The question is how good we can make it and to make sure that
a single install, which I talk about a simple upgrade. Those are the things that I'm trying to say here.
Really? This is a witness we are supposed to believe? This is a company that we are supposed to buy products from?
Microsoft forces the sale of IE upon all consumers and then expects consumers and the court to believe that Microsoft is competing fairly? And, Microsoft is the innocent babe?
Mr. Allchin's arrogance is showing through. Customers can gain all of the benefits that could possibly be attained without forcing them to buy IE. If the product has any merit at all, consumers could choose to buy it.
I realize the idea and concept of a consumers choice is foreign to Microsoft. But, no one believes this testimony.
Again, Microsoft seems to think that if Netscape is not completely wiped off the map, no laws have been violated and no consumers have been harmed.
James Allchin is testifying falsely. He himself does not believe his own testimony.
3:15 P.M. PST - How can Allchin describe OEM shipments as being "cool, awesome, innovative"?
q. So you say, "Windows 98 must be a simple upgrade, but most importantly, it must be a killer on OEM shipments so that Netscape never gets a chance
on these systems." Do you see that, sir?
a. I do.
q. And did you mean that in the ordinary and usual meaning that those words have in the english language?
a. Again, i wouldn't touch that because "killer," when i say the word "killer," i'm talking about cool, awesome, innovative.
Allchin is talking about OEM shipments not the cuteness of the product. Other words could replace "killer" here, but "cool" or "awesome" do not. "Innovative" does not make sense here either. In fact, this same sentence suggests a simple Windows 98.
Allchin clearly was addressing the need to drum Netscape out of business via illegal product bundling.
2:45 P.M. PST - Yes, the word "tie" does have some relevance in this case.
Transcript Feb 3, PM:
q. Well, the next sentence says, "If you agree that Windows is a huge asset, then it follows quickly that we are not investing sufficiently in finding ways to
tie IE and Windows together." Do you see that?
a. I do.
q. And is it fair to say that you meant that in January 1997 in the ordinary and reasonable meaning of those words?
a. I don't know about that statement. I mean, what I just said is what I believe in, and what I know that I meant. "Tie" is a term that we use, just like
"integrate" and "leverage." It certainly got us in a lot of trouble, but, you know, the "tie" word here means integrate.
the court: Because it's a word we use, too.
the witness: I'm sorry. I've never--first time in a courtroom, I'm learning a lot.
Well. Unless these terms are used in a legal context (which is not the case here), the use of one term ("tie") versus another ("integrate") just does not mean anything. To the extend that two products are not separable it does not matter whether a witness uses one word or another. The concept is clear. All customers have to buy both unless they are offered separately as well. Word and Excell are integrated and bundled but also offered separately. IE might be available for purchase without the OS (Solaris, etc.) but the OS is not available without IE. So it is easy to see which product would not sell very well unless bundled.
The use of particular language here is important. But, not in the way that Allchin thinks. The courts care less which word is used by a witness unless it has a clearly defined use in the business or in the profession represented by the expert. And, if the court decides that any witness (or attorney) is just playing word games (as Microsoft and its attorneys clearly are), the choice of words becomes immaterial.
In this situation, the court knows that since Allchin is not an antitrust attorney giving legal advice on the issue of product "tie-ins", it just does not matter much whether he used the "t" word or the "i" word.
The shift in the use of language in this case by Microsoft is more than obvious. Once the court makes that observation, the use of particular words becomes almost meaningless. The change from "browser" to "internet technologies" is one such example. It means nothing. (Except perhaps it disclosed the thinking of Microsoft attorneys that a lot of incriminating evidence is laying around in e-mails, web pages, etc.) And, as I have already mentioned a week or so ago in this column, some of that language was not changed on the web pages from Microsoft until AFTER this suit was filed.
One more point on this topic: Courts normally do not accept prove of a change in conduct as being an admission of guilt. Therefore, a change in the use of language does not necessarily implicate Microsoft either. However, I observe that while the language used by Microsoft has changed, the conduct has not. IE must still be purchased, etc.
2:33 P.M. PST - A slip of the tongue by Allchin?
Transcript Feb 3, PM:
q. Okay. And indeed, what you're saying is that in order to respond to Netscape, you want to find ways to tie IE and Windows together; correct? That's
what you say in the next sentence.
a. I want to find creative ways to make them work together, yes.
Who needs to be creative, Mr. Allchin. Just bundle em. You know, leverage the fact that all consumers buy Windows (or Apple) and just tape the two together using scotch tape if you have to. The effect is almost the same in the market. (In fact, just using scotch tape would afford the customer with a superior product. See discussion regarding consumption of system resources by IE.)
Windows 98 and IE could easily work together as does Word and Excell without forcing all consumers to buy them both.
2:30 P.M. PST - More, more; we need more integration in order to wipe out Netscape
Transcript Feb 3, PM:
q. Well, sir, what you're saying in January of 1997 is that in order to respond to Netscape, you want to have more Windows integration.
a. I want to have--yes. That is true. I want to have more Windows integration. That is true.
Again. The focus is upon integration in order to preclude Netscape and others from the marketplace and not to benefit consumers or customers.
As as been shown, customers nor consumers are benefited at all. They are harmed by bulking up the OS with unwanted applications.
2:00 P.M. PST - The so-called integration was done to benefit Microsoft ... not consumers
q. Okay. Now, the second paragraph you say, I don't--"I do not feel we are going to win on our current path." And when you say that, you're talking about
winning the browser battle; correct, sir?
a. I think I was talking about--that's why I was trying to clarify this. I was afraid that windows was going to be weakened in a great, great way. and so, to
me, at this point--and it's a long time ago, but I think I had seen that IE and Windows were totally synonymous--in fact, I had seen it earlier in that the more
that we--we made them unified the better off we would be.
Finally we have some testimony related to the strategic and tactical reasons for bundling (integrating) two products.
Notice how James Allchin does not say that combining two products (using any word you want) would make the customer or consumer better off. Rather, here he addresses his reasons as being related to the benefit to Microsoft.
Now. Keep in mind, I do not object to companies doing things that help them out. They always do that. But, Microsoft is claiming that both products are sold as one to benefit the consumer. It appears from the e-mail and Mr. Allchin's reply to this question, that that is not the case at all. Bundling the products was a strategic or tactical move to gain market share or preclude Netscape from the marketplace.
I see no mention here of any improvement of the quality of the product. I see no mention of benefits to the consumer.
This is all about Microsoft versus Netscape and customers be damned. They got money, make them pay. We can do it.
We can dry up the funds available to Netscape. Monopoly power can and did precisely that. (Customers be damned.)
1:22 P.M. PST - Quick summary of Microsoft's claim to innovate in order to meet the competition.
Microsoft makes a big point about the fact that other operating systems also provide browsers. Now setting aside for a moment the idea that they are doing so simply because the browser market is ruined by Microsoft (or by Netscape for that matter), it is important to note that any competitive threat that OS/2, Solaris or Be could muster up would easily be met by a pure and simple bundle. If IE, the application were included on the install CD-rom and available as an install option, 100% distribution of IE could have been achieved by Microsoft. Even using scotch tape at the retailer to strap together a box of the OS with a box of the browser would effectively forced the distribution of IE and mostly likely wiped out any ability of Netscape (or any other company) to sell a browser regardless of merit.
But, the claim offered by Microsoft is one of integration and innovation and benefits to consumers.
1. Any integration does not require the sale of both products (witness Microsoft Word and Microsoft Excell, two clearly
integrated products)
2. It might be a unique or different idea (call this innovation if you insist) to combine the OS with an application. But, that
is a bad engineering decision. It makes no sense to significantly increase the bulk of the minimum program (OS) and place
all of the extra burden upon the system (see discussion below regarding increased resources required by this horrible
engineering decision).
3. The net affect for consumers is harmful rather than beneficial. Any one consumer can install both if given the option.
Any one consumer could pre-load their choice of browser if they wanted to do that. Microsoft forces the hand of all
consumers to possibly benefit only a few. (Remember, my discussion on this point detailed below. If you assume that all
consumers want to preload their browser and actually want to use IE as their browser, then optimizing the combined OS and
IE application would improve that combination ever so slightly.)
In conclusion, if combining the OS and the browser has enough merit to qualify as innovative, then so too does the combining of any or all of Microsoft's other products. In fact, several other choices make a whole lot more sense than IE does.
If combining the OS and browser was necessary to meet competition by OS/2 and Solaris, that could easily have been done the easy way with an optional application.
To this point in the trial, I see no evidence that Microsoft did anything for the purpose of being innovative. I see no evidence that integrating the two products offers a benefit to consumers. I see a lot of evidence to the contrary. I see not evidence of a "good" engineering decision. I see a lot of evidence to the contrary.
And, I see a lot of evidence suggesting that Microsoft acted solely to preclude competition. Find the tactical or strategic reasons for what Microsoft did. Every time Microsoft tries to suggest one, they do not make sense.
12:45 P.M. PST - Does James Allchin know what an application is?
q. -- Would you agree that every other operating-system vendor, except Microsoft, permits a customer who wants to, to remove the browser that comes
with the operating system?
a. Yes. And let me -- to my knowledge, but I want to add a few comments to that, which is that we think we have done something very innovative. We
have taken a risk. It is possible that customers -- you can't please all customers, and it's possible that we won't please them all. My job at Microsoft is to try
to balance all the input I get from the OEM's and all the input I get from customers and to try to make a view of the future of technology and decide what it
is that we should do with our products. And my view is that we have done something ahead of the other people. I think it has been innovative, and I stand
by that.
Hint: Since the beginning of the computer software industry, optional features that might be useful for some users but not for others have been incorporated into applications precisely as Microsoft has done with IE. It is poor and unacceptable engineering to incorporate user services directly into the OS.
Bundling Office Pro 2000 with the OS is just as "innovative" and just as harmful to all consumers as bundling IE.
Attaching steel wheels to the front and back bumpers of a pickup so the vehicle can travel on train tracks, is innovative too. But, raw innovation does not justify the use of monopoly power to force all consumers to buy, install, preload, maintain in memory and actually use IE.
Only Microsoft does that. And Microsoft has disclosed why. It clearly is not for technical reasons. Technical reasons
suggest otherwise. It is not to benefit consumers. Consumers can gain all such benefits by purchasing products
separately if they so choose.
12:20 P.M. PST - Microsoft, the only company that prevents the customer from configuring their system without an internet browser.
q. My question is a slightly different question. Is Microsoft, to your knowledge, the only OS vendor that prevents customers from removing the browser, if the customer wants to?
Mr. Holley: Objection, your honor. Asked and answered, and Mr. Boies cut the witness off as he was trying to answer the question.
the court: Overruled.
(overruled is the long word for "Bull")
the witness: Does that mean I can answer?
Mr. Holley: Yes, sir.
the court: That means you can answer.
the witness: okay. I don't know -- it depends on what you mean by "remove." Does the system have to operate totally with all the features the way it was designed? If the answer is "yes," then I think be fits into that category. If the answer is that you can arbitrarily delete files, well, you know, you can do that in windows 98. It may not work, but you can arbitrarily do it.
You can always tell when the defense attorney is afraid that the witness is going to blow the case with an honest answer. The attorney objects so that the witness can figure out how to avoid giving accurate testimony.
Here Mr. Allchin goes into the famous "that depends upon what the definition of 'is' is".
Dear Mr. Allchin. The consumer want to remove IE to decrease disc storage requirements, shorten the time to boot up, lower RAM requirements, lower allocated memory, lower virtual memory requirements, lower System Resource consumption, lower User Resource consumption, lower GDI Resource consumption and pick their own applications or do without. You have an advanced degree, yet you claim not to understand very simple concepts.
This reply sums up Microsoft's complete argument on browser being included with other systems. Having a browser included (possibly at no cost because the entire market for browsers has been ruined by Microsoft) is not at all the same as forcing all consumers to actually pre-load it without regard to whether browser activity will ever be conducted on the customers machine.
Being forced to buy IE is one thing.
Installing IE by default is one thing.
Being unable to remove the icon is one thing.
Preloading IE at boot up is one thing.
Taking up space in RAM is one thing.
Using up virtual memory is one thing.
Using up disc storage is one thing.
Using up key system resources is one thing.
Preventing the user to select the application of choice is one thing.
Giving away free products in order to ruin the market is one thing.
Charging as much as $140 for a product but telling the consumers it is free, is one thing.
Telling consumers IE is free but increasing the cost of Windows for added features, is one thing.
Telling consumers IE is free but then allocating 20% of all OS Revenue to "unearned revenue" which includes IE, is
one thing.
Telling consumers IE bundled with the OS is a benefit when they do not need any browser at all, is one thing.
Microsoft does them all in total disregard for the basic rights of their own customers. (100% of them)
And all Allchin can do is question the meaning of "remove"?
11:45 AM PST - The help system could easily use any browser
Transcript Feb 3, AM:
q. Does that new help system provide any benefits to end users?
a. Many. The ability to have richer views. The ability to connect into the Internet and get additional information beyond what is currently available on the
local machine. There are many advantages of that.
On line help or local help could easily be achieved via any Browser. IE is not more required for Microsoft help than it is required for Inprise help.
The help system is no more required to use only HTML to "rich its views" than Microsoft Word is required to use HTML to "rich its features".
This logic is equivalent to saying "if Networks are good and offer benefits, then Networks must be purchased from Microsoft ... therefore all consumers must also purchase Networking software from Microsoft". Please note that Microsoft does in fact require all consumers to buy Networking technologies from Microsoft too, regardless of their need or interest in such technology.
The concept used by Microsoft to suppress competing technology is not limited to the current browser situation. Microsoft has much of its power now because it has rubbed out both Stac and Lantastic from their markets. Bundling.
Remember bundling always causes two results:
1) the minimum price of the product is increased to cover the bundled product
2) choices available to consumers are reduced
The question is whether the forced bundle offers any net benefits over the products available separately. (Microsoft Word and Microsoft Excell are offered separately for very good reasons. Those same reasons apply even more so to the OS and any application ... IE included.)
11:13 AM PST - Microsoft overcharges consumers so that they can subsidize ISVs?
This issue will be addressed again by William Poole (ISV witness for Microsoft) but I see here that Allchin can help prove the DOJ case even on this issue.
Transcript Feb 3, AM:
q. Mr. Allchin, I would like to move on to a different topic. Do you have up there with you, sir, defendant's exhibit 2075? I believe it's in one of the two
binders there.
a. Yes.
q. Just to tie up a point that Mr. Boies raised during the discussion about whether this document was admissible, can you tell the court what this document
represents, Mr. Allchin?
a. It represents a set of companies -- 100 of them -- that someone at Microsoft -- his name is Scott Fallon -- contacted or had one of his people contact these
companies and asked them about whether or not they were dependent on using the IE technologies in Windows.
q. And what, if any, implication do you draw from the fact that they are on this page?
a. I specifically spoke to Scott about this. Each one of these companies and those products listed on the right are dependent on using the IE technologies in
Windows.
So what? I might want to rely upon Microsoft distributing the Paradox data base engine for applications I might want to write and sell. Does that mean that Microsoft should pre distribute Paradox? This argument is just a version of the story about the industry collapsing if Microsoft is not given a "free pass" on antitrust violations.
I am sure Microsoft can find 100 ISVs that right Visual Basic scripts for Microsoft Word. Does that mean that Microsoft should bundle Microsoft Word with each copy of the OS and charge consumers for it just because a few ISVs might benefit?
Absolutely not. This is just proof of the subsidies that Microsoft offers ISVs. It is also proof of why it is so difficult for any OS competitor to enter the consumer OS marketplace.
Remember the economist Microsoft hired? Mr. Schmalensee? He testified that the "network affect", "tipping", etc., had not impact upon the ability of competitors to enter the market. Of course, his testimony was totally worthless on these points.
q. Do all these companies -- all 100 of the companies on defendant's exhibit 2075 -- redistribute a version of Internet Explorer with their products?
a. No. There is a certain percentage of them. I'm not sure because I think it's probably changing daily, but it's probably around 50 percent may distribute
it. The others do not.
q. What is your understanding of why the ones that do not distribute IE do not do so?
a. For many of the reasons I mentioned yesterday. Efficiency on their process. They are counting on them being in the Windows operating system, and
there's no reason for them to distribute it if they are present.
If you make ISVs more efficient at the expense of consumers, that is properly characterized as a subsidy paid for my
consumers. All other companies have to incur associated expenses in getting ISVs to utilize their technology if they are
in that business. Microsoft just forces all consumers to buy IE and then turns round and says to ISVs "...look...
everyone has IE... write your code to that... gratis".
q. For the subset of the 100 companies listed in defendant's exhibit 2075, what consequence, if any, would there be if Internet Explorer was removed from
windows 98?
a. If it was physically removed, those companies' products would no longer work on Windows 98, or even in Windows, period, wherever their product was
targeted.
Oh. Is that not a shame. Their subsidy from Microsoft would be cut off and they would have to distribute supportive DLLs just like all other ISVs in the industry must do when they do not rely totally on Microsoft technology.
This topic is raised by Microsoft in a feeble attempt to prove that bundling IE is done for efficiency reasons. But, it is not more efficient to distribute Microsoft technology to 100% of all consumers as opposed to allowing those few products that might rely upon those APIs to distribute the necessary supporting code.
This argument here suggests that Microsoft can distribute all technologies more efficiently than if individual companies
simply distribute what they need to rely on. Microsoft itself rejected this idea when it refused to distribute Navigator
along side IE as a possible settlement of this very case. Well. Microsoft distributing Navigator is just as illogical as
Microsoft distributing IE.
10:35 AM PST - Microsoft fabricated the idea that if a file manager could remove IE it must be integrated with the OS
Transcript Feb 3, AM:
q. Mr. Allchin, if only smaller pieces -- subsets of DLL's are in primary memory at any given time, why don't you make each one of them a DLL?
a. Because you would go -- for each DLL, there's a specific call that you have to go through called a load library call. And that actually takes a significant
amount of time. And a key thing that we do in our performance work is actually try to reduce DLL's because we get further performance by being able to do
this Basic Block Packing in a DLL. So it's not -- either extreme is wrong, an individual function per DLL or one large DLL for the whole operating
system. It's a engineering choice about trying to get the right size for the work that you're trying to do.
As explained below, the sizing of the DLLs was not the issue. Rather the total size of the combined program is. And, if the mixing of procedures in DLLs between OS and IE functions results in IE code being constantly loaded into memory when the user may never call upon them, additional inefficiencies do develop. Unless the OS can break down the execute code and only load on a procedure boundary, lumping IE with the OS into the same DLLs does in fact create inefficiencies.
James Allchin is "acting" as if the only problem here raised is cause by the absolute size of the DLL. The relative size of the OS (with or without IE) is significant. But, Allchin ignores that concept completely. (I thought he had a technical degree?)
The BBP process is important. However, Allchin failed to define "for the work you are doing" at the end of his reply. Here his work is making certain that all consumers pre-load IE by bundling it with the OS and mixing the DLLs (BBP) up so that a file manager can not remove IE.
The point here is that Microsoft has raised the false issue that if the DOJ can not identify the files for IE which could be removed by a file manager, then the OS and IE are integrated. This is a false claim. Clearly once the bundling of IE is decided upon (for the impact that bundling will have on Netscape), the BBP process will blend the code. It does not need to be an intentionally arbitrary choice to blend the code.
q. Now, Mr. Allchin, Mr. Boies asked you some questions yesterday, particularly with regard to a chart that he had up on the screen about the number of
files in Windows 98 that relate to Internet Explorer. Do you recall that?
a. Yes.
q. And you told him that you didn't really have even an estimate of what percentage of the operating system was made up by Internet Explorer. Did I
understand you correctly?
a. That's correct.
Understood. Just not believable. Gosh. 98Lite almost figured it out.
q. Is it correct, Mr. Allchin, that Microsoft intentionally mixed up the code that performs web browsing functionality with unrelated code in the operating
system in an effort to make it difficult for someone to identify and remove that code?
a. That is absolutely untrue. We never did that. And it would not make good engineering sense to do that. We put the pieces together that we thought
made sense.
Perhaps not "unrelated code". But, I do not think anyone accused Microsoft of blending "unrelated code". The suggestion was to "related code" if you will. And, the BBP process would do exactly that.
The code may not have been blended to make it difficult to remove it, but Microsoft lawyers sure made up a fake story suggesting that if a file manager could not delete IE, that that proves a single product. Microsoft made up this story. It is pure fiction. Microsoft itself recognizes that the browser product is required to be an application by everything else it has done including distributing it for Solaris, etc.
As all software companies know, products are defined in the market not in the code editor. Microsoft proves this by distributing IE as an application on a whole range of operating systems including their own. Calling IE part of an OS is a pure fabrication offered solely as an excuse for intentionally violating antitrust laws. Bundling IE with the OS makes no sense otherwise. Clearly not from the technical standpoint.
q. Why would it not make engineering sense, Mr. Allchin, to do what I suggested to you, sir?
a. Because it would be inefficient. It would be a burden on the team to try to, you know, orchestrate such a thing. we don't -- it's just not good engineering.
Blending the code can be left up to the BBP once IE code is included in the mixer. The technical question before the court is "Why is IE included in the mixer?".
Microsoft has had the opportunity right here in this dialog to offer a reason. I see none.
10:00 AM PST - James Allchin continues to fail to prove a technical point
Transcript Feb 3, AM:
q. Professor farber testified, Mr. Allchin, that the DLL's in Internet Explorer were too big and, as a result, occupied too much space in memory. Are you
familiar with that testimony, Mr. Allchin?
a. I am.
q. Can you explain to the court why Professor Farber is wrong about that?
a. Well, in certain systems, he may not be wrong. In Windows, though, he is because of the whole concept of this computer science term called "working
set," which means the pieces of software that are currently being used at one time. And those are the ones that stay in fast memory, the RAM memory, not
on disk. And if a piece of software isn't available in primary memory, it does what's called a page fault, and a piece of the disk is moved into memory.
And this is true even if it's in the same DLL. So it's very efficient in memory, when it's used. Only the pieces of software that are actually being executed
frequently in the, quote, "working set," are the ones that should stay there. and a great many of our performance tests are to optimize the code paths to pack
them together -- we had a little discussion about that yesterday -- to pack them close together so more of the software that's used at runtime, dynamically,
are closer together and in the same -- what we call page or a chunk of memory.
Huh? This answer is a non sequitur. The question that was raised was whether large big programs create inefficiencies. Now it might be true that the entire DLL is not loaded into RAM and kept there by the OS. Clearly part of it can be held in virtual memory. But, the issue raised by large DLL's or simply large code sets which create inefficiencies is valid and Allchin's answer fails to correctly address the topic.
James Allchin here is trying to suggest that the design of Windows is such that a larger OS or a combined OS and Application (pick any large application you want) do not create undesirable demands upon key resources. Large programs (OS or applications) do precisely that. Bundling IE with the OS makes the OS a much bigger program. Individual consumers can harm themselves by always preloading all their applications. That is their choice. But, here Microsoft makes absolutely certain that all consumers must pre-load IE regardless of how the computer is used. This is a net harm to almost all consumers.
Again. 98Lite demonstrates the harm. 98Lite does remove IE. That removal significantly reduces system resources allowing the OS and all applications to run more efficiently.
What James Allchin is trying to say here is that Widows can run just as efficiently with many large applications loaded up as it can with only one large application. This is just false. His testimony here is not addressing the issue raised. As you recall, using 98Lite to remove IE dropped RAM requirements by 15 megabytes. IE is a very large application. It is a horrible engineering decision to bundle it.
This is why the only real reason that Microsoft bundled IE was to preclude browser competitors. All technical evidence suggests IE should never be bundled. Even if you optimize the DLLs the net effect is harmful to all consumers unless they browse the web all day every day (and do not mind losing their right to pick their own best applications).
If you assume that all consumers would want to preload IE (rather than some other browser) each time they start their computer, then the testimony from James Allchin might make sense. Unfortunately, no such assumption can be made. Microsoft itself refused to make that assumption.
9:23 AM PST - Poor Microsoft engineering disclosed. - Of course Allchin calls their "poor" engineering "sound".
Transcript Feb 3, AM:
q. Now, Mr. Boies asked you some questions on cross-examination, Mr. Allchin, about the arrangement of code in Windows 98. Do you recall those
questions?
a. Yes, I do.
Ok. The issue raised here is the arrangement of code into various DLLs. This is a process that all programs go through.
q. And Professor Farber and Professor felten have both testified that the components of Internet Explorer in the operating system can be analogized to
grocery bags full of random software code. Are you familiar with that testimony, sir?
a. Yes.
q. Is that assertion correct, Mr. Allchin?
a. No, it's much more complicated than that. I've been scratching my head trying to think of an analogy that would be appropriate, and it's very difficult.
Maybe the pantry might be a better analogy, although it's far from perfect, where you might try to organize the different types of foods or other supplies that
you bought. What we do in DLL's is we try to rearrange the files -- the source files that are related to each other so they'll be close to each other. And we
do that to have a better performance experience for the user. Also, for good software development engineering reasons, if multiple people are working on a
common area, putting those together in one DLL makes sense.
It is more complicated than the simple grocery bag analogy. However, Allchin avoids a key consideration when he discusses "arranging the files related to each other". The tough question is not related to picking the procedures that go into a DLL. That part can be automated. The real question is the determination of the set of programs used to comprise the selection of DLLs to be considered. It is a nice idea to optimize the selection of what code goes where. However, the optimum solution will differ when you include only the OS versus the OS and another major application. If your code base consists of the OS and Microsoft Word, the optimum combination of procedures in DLLs may be quite different. In other words, you can re-order the DLLs such that one application will be more efficient than another.
When Microsoft bundles IE with the OS it does try to optimize for browser use of the computer at the possible detriment of all other applications including other browsers. This is not good engineering. This is poor engineering. Operating systems should be application neutral unless you are going to assume that all consumers will somehow be better off if it is optimized for one particular configuration.
Microsoft is falsely claiming to be conducting a good engineering practice when in fact they have proven the opposite.
q. What performance implications would there be, Mr. Allchin, if any, if related source files were placed in different DLL's?
a. It would be -- taken to its logical extreme, which is every function is its individual DLL, which would give you the most modularity, the system would
perform very, very poorly because each DLL would have to go through a set of operating system services to load it into memory. Instead, the DLL
primarily is for engineering development efficiency, and, in fact, what we use is something called virtual memory to be able to just put the pieces that we
need from the DLL's into memory and just efficiently use the pieces of software that are used in a particular code path and leave those in memory. So I
think what we've done is something that's very sound from an engineering perspective.
The issue raised here really relates to the question of the granularity of the code segments supported by the OS. If the OS supports large fixed block sizes (as I believe Windows does) then lumping procedures into DLLs based upon their frequency of cross-use makes sense. However, if the OS supports variable sized blocks, then this lumping is less important. Either way, however, the conclusion reached here by Allchin is not related to the issue raised. His conclusion does not support the contention that bundling IE is good engineering. Bundling IE is horrible engineering. Once bundled, yes, it should be optimized. But, good engineering would dictate that NO APPLICATION be bundled with the OS.
The purpose of this dialog is to show that good engineering suggests bundling is a good idea. Unfortunately, good engineering does not support bundling IE at all. (Same with bundling Microsoft Word or Excell.) Bundling any application and then optimizing for that application only makes the selected application more efficient at the expense of all other applications.
This concept can be shown via 98Lite. 98Lite removes IE from Windows98. And, even without optimizing the OS with IE removed, significant systems resources are released for use by other applications (disc, Ram, run-time resources, and boot up time).
Microsoft continues to fail to show a single technical reason for bundling IE.
9:00 AM PST - Microsoft: Why IE must be bundled? (or...Microsoft strikes out Allchin)
Transcript Feb 3, AM: Questions by Microsoft Lawyer
q. Mr. Allchin, I would like to turn now to the subject that we were addressing at the close of the day yesterday, sir. And just to set the context, I was
asking you about questions that Mr. Boies had asked you on cross-examination about why you couldn't just distribute Internet Explorer separately from a
product called windows 98. Do you recall that interchange with mr. Boies?
a. I do.
Ok. The Allchin is thinking about whether IE could be distributed separately or not.
q. Mr. Allchin, are developers, as you defined them yesterday, required to use all of the system services that are exposed by the API's in Windows?
a. No, they are not at all.
Huh? What has this question got to do with any issue in this case? Not even the DOJ has alleged that developers are required to use Windows APIs.
q. Mr. Allchin, is there anything that prevents another software developer, such as Netscape, from replicating some of the system services that you could
obtain from Windows 98 API's?
a. No, sir. In fact, they do just that. They have their own HTML rendering engine and many other pieces of software. They have the equivalent of our
download Windows Update. They have their equivalent of Channels. So they are completely free.
Huh? What has this question got to do with any issue in this case?
q. And the last question on this particular subject: What, if anything, Mr. Allchin, prevents Netscape from using the system services, if it chooses to do so,
that are exposed by the API's in Windows 98?
a. Nothing. In fact, Netscape does use some of the internet API's in Windows today.
Huh? Again, the question has nothing to do with any issue in this case.
Microsoft lawyers introduced these three questions suggesting they address the issue of why Microsoft found it necessary to bundle IE with the Os rather than distribute it separately, then they ignore the issue raised and waste the courts time answering questions that the DOJ does not even care about.
Softball questions are one thing. But, lawyers really ought to stick to the issues of the case.
I personally can do all of those things that Microsoft seems to suggest that Netscape was free to do. But, so what? The fact that I can do such work or that Netscape can do such work does not excuse the acts engaged in by Microsoft that violate the law. Illegal acts do not need to be 100% effective in stopping all competitive work.
This line of questions represents the arrogance of Microsoft. They act to effectively preclude any and all competition in a key market. Then claim that sense their target (Netscape) is still able to distribute product (even though the market is ruined and they must give away their products) that somehow they are the innocent babes.
Here the question was "Why Microsoft could not just distribute IE separately?". The question was raised by Microsoft
attorneys. There choice. I can only assume that Microsoft does not have any legitimate answer to this question. If they
had, they clearly should have raised it here when the soft ball was lobbed over the plate. Instead, Allchin and his
attorneys struck out.
8:14 AM PST - Microsoft's fabricated video smells like a dead fish.
There are some very serious problems with this video Microsoft presented in court. And, it is not simply because the video appears to be fabricated or falsified. That is bad enough. But, the real problem is that it is presented by Microsoft to prove a point which is not even relevant in the case.
Microsoft wants the consumer to think (and apparently the judge) that removing IE is going to serious harm the OS. This is pure bull. Windows 95 was not made any better by bundling IE. Removing IE is not going to harm Windows 98 in the least.
Oh, but "performance" goes the cry by Microsoft. And, they even go to the trouble of defrauding the court in their effort to try to prove that. Performance is not proven by bogus videos.
If "performance" is really their point, then Microsoft can submit evidence that explains in detail precisely why the removal of IE decreases performance. The industry really wants to see that evidence.
Compare to the performance benefits of 98Lite which removes IE. 1) lower disc usage 2) less code to load at boot up 3) smaller amount of allocated memory after bootup 4) less code in Virtual memory at all times while the machine is in use 5) less consumption of System Resources at all times 6) less consumption of User Resources and 7) less consumption of GDI resources.
If Microsoft is going to argue in a court of law that despite all of the disadvantages of forcing all consumers to always load and use a greater amount of software the net benefit to consumers is positive, they better call a few real people who can explain it in detail.
So far, all Microsoft has presented in court is one obscure advertisement. Their so called evidence to this point in the trial
fails miserably as economic evidence and as technical evidence. And, apparently "fraud" is again used as a primary tool.
February 3, 1999 - Wednesday
5:45 P.M. PST - Testimony for William Poole released
5:30 P.M. PST - Sounds more and more like Microsoft is fabricating false evidence
5:05 P.M. PST - ProComp reviews Devlin testimony
ProComp is correct in concluding that Devlin's testimony helps prove very important concepts present in this case for the DOJ.
His testimony also points out that Microsoft overcharges all consumers and then takes this money and subsidizes ISVs, etc. It reduces their costs both in an absolute sense and in a relative sense compared to alternative platforms.
His testimony also confirms the statement from Franklin Fisher, the economist for the DOJ, that Microsoft bundling IE with the OS precludes competition in the browser market and increases barriers to entry for both the OS and browser markets.
From an economic perspective ISVs (particularly those who only write for windows) only make the Microsoft monopoly larger in size. Any and all applications dependent upon IE comprise a "market share" which is quite similar to that that would result if Microsoft itself wrote those applications.
4:50 P.M. PST - Bogus video demo now has an explanation?
It may have an explanation but the video is largely not relevant anyway.
Microsoft was suggesting that Felten's modifications cause a performance degradation. Well, as I have mentioned, it may or may not. Felten himself suggested that Microsoft could do a much better job.
The 98Lite program also shows that such is the case. 98Lite removes 24 mbs of IE. It also reduces the demands on the system caused by forcing all consumers to boot up IE each time a machine starts. 98Lite demonstrates that the OS is faster without IE than with and that a better job can be done than demonstrated by Felten.
98Lite also proves one more point. This industry can simply not afford to allow Microsoft to call all of the technological shots. 98Lite demonstrates that a superior OS can and should be marketed whether by Microsoft or someone else or both.
3:20 P.M. PST - James Allchin defines "uncompetitive"?
q. You would be completely uncompetitive in what sense, mr. Allchin?
a. Well, the platform area--the platform area is one which is very, very competitive, and the operating systems are continuing to expand and continuing to
gain features. and so, when I think of the operating system market, I think about any of those platforms that exist that could compete with Windows. and all
of those technologies are including internet support in them, and it's getting richer every day. So, when I say that Windows wouldn't be competitive without
it, I mean, I really don't think it would be at all. I think that the growth of Linux and the growth of BE and the growth of middleware applications on top,
systems on top of Windows, they would just continue to grow.
James Allchin does not understand what the word "competition" means.
If Microsoft and Netscape both placed a fair price on their respective products, that would be described as competition.
If Microsoft is unable to bundle IE and drum Netscape out of the market, that is not described as competition. That is described as a violation of the antitrust laws.
For Allchin to suggest that they must be either able to violate the antitrust laws or they can not be competitive is just false.
No other OS forces a single customer to use a particular browser nor application. Microsoft does for the specific reason of removing the ability of a competitor to have a market.
And, all consumers are harmed significantly by the acts engaged in by Microsoft.
Allchin is suggesting that if Microsoft can not be free to act to maintain its monopoly position, that somehow it can not continue to "win". Well. No company is guaranteed to "win". No company has any right to "win". All companies have to play fair.
Microsoft sounds just like the big bully at the beach who pouts and moans when he is stopped from kicking sand in the faces of the sun bathers. "But, I can not maintain my dominance, otherwise". Perhaps. That is called competition.
3:15 P.M. PST - Microsoft plans to force all consumers to buy Office Pro 2000?
q. How, if at all, Mr. Allchin, would Microsoft have to alter the design of Windows 98 if it could not assume that Internet Explorer 4 was present in the
operating system?
a. It would be a very, very large effort, so--because what you would be saying is we would have to back up and use the technology of the shell, the way it
was in Windows 98, the whole--that whole approach, and we would have to design a completely different product. It doesn't follow it at all that--we would
either have two choices, either remove all this functionality for the consumer and developers, or we would end up reduplicating all the technology that is
what we classically talk of as part of Ie technology, reduplicate that, and it would be redundant on the disk, and it would be redundant in memory, and
so--it's not obvious. If--because other parts of the system do rely on it, and we want to be able to rely on the technology being there. This situation in
Windows 2000 is even more dependent on that technology. We want to unify search, which we have done in windows 2000, so the same search
mechanism works whether it's local or remote. We have got--and that technology is only going to be in Windows 2000, and that--this depended on the IE
technologies, so it--it's a huge amount of work, just huge in order to back up and go think about this, not to mention that I--we would be completely
uncompetitive in the operating system market, in my opinion.
So. For minor benefits all consumers must buy IE from Microsoft? And, always pre-loaded it? Allocate it to memory? All 15 megabytes of it?
There is nothing that Allchin has said here that does not also apply fully to Office Pro 2000.
James Allchin does not mention Office Pro 2000 in his answer. However, every single point he makes relates as well to Office Pro 2000 as it does with IE.
This is the "get out your plastic" defense.
2:43 P.M. PST - Here we go again, revising history.
q. Did Microsoft decide to include internet support in windows in response to Netscape?
a. No. The intent was to unify the browsing experience across any different type of transport, if you will, where the internet is viewed as a transport. It's
just like we added cd-rom support to the system or added any other device support or other protocols. We added it to be able to communicate and to be able
to unify that for the consumer. And long before Netscape was created, we were talking about this, and we had a plan in place that we wanted to achieve
that. It took us a very long time so far, and the truth is we still have a ways to go to do all the unifications that we want, but we think that it's very good for
consumers. And it definitely was not created as a reaction to Netscape. It was a technological it's-obvious type of decision.
Perhaps Microsoft can explain to the judge what the consent decree was supposed to mean in light of this answer.
Why would Microsoft agree with the consent decree if it planned all along to require all consumers to buy IE?
Was not the purpose of that decree to prevent Microsoft from forcing the sale of IE? What other purpose did it possibly have?
The answer given here almost forces representations made by Microsoft lawyers before this same judge in regard to the same issues to be considered as false representations of the position of their client. This answer makes a mockery of the consent decree. (This judge wrote that decree, remember? He even heard motions for contempt of court regarding this very issue.
Sure, you can say that the decree included the word "integrate". But, for Microsoft to not suggest to this judge that the decree taken in total was not applicable to the issue of forcing consumers to buy IE, is a bit ridiculous.
The consent decree is not being litigated here. But, the issues are similar although greatly expanded.
2:20 P.M. PST - Does this mean I can integrate some of my stuff into Windows and force everyone to buy it?
q. Mr. Soyring from IBM testified, Mr. Allchin, in this case that a module of software code is integrated into an operating system if it exposes application
programming interfaces used by other programs running top of the operating system. Does Internet Explorer in Windows 98 meet that test?
a. Easily, but, of course, it does many other things as well. And I don't know if that's the most perfect definition, but it's certainly pretty sufficient. There
are incredible number of API's that are exposed to applications, and applications like it. It's good for applications. It means they don't have to ship the
code. And this is something that's complicated that I don't think everyone realizes. It's not just US. Or English language code. Imagine an application that
wanted to use these API's and we can't just say, "okay, ship this code" without a big cost on the developer because they have to ship all the localized
versions of that code as well. German, French, Japanese, Korean, et cetera, if they want to have worldwide coverage. If it's in the operating system, and we
have done our job, whether it's on--installed systems already in the field or whether it's OEM new machines, then, in fact, the developers can rely on it. so,
his definition is perhaps not mine, but Internet Explorer, using that definition, is certainly integrated.
It is nice for Microsoft to quote an IBM witness. However, there are many applications that provide APIs or their equivalent. Microsoft Word being one.
I guess if you are going to pass a law declaring that only Microsoft can write APIs, then this might be okay. However it still does not make economic sense at all.
Does it really make sense to force all consumers to buy and pre-load all of IE just so that some ISVs who might want a few APIs do not need to license them from Microsoft and distribute them? Clearly no. That is only subsidizing ISVs by overcharging consumers. If Microsoft is going to assume a cost saving to ISVs then it can assume an additional cost to consumers. In the case of IE, this is clearly the case. Preloading IE each time a computer starts up places an additional burden upon scarce resources.
The much preferred solution is to leave IE off the machine and allow the ISV to distribute IE if they must. They may find superior technology and not use IE at all. That is what Microsoft is really worried about. If everyone is not forced to buy and preload IE, ISVs might run off the cliff and use Netscape stuff. Or APIs from yet another company, heaven forbid.
This is not a technical issue at all. It is a pure monopoly power issue. Forced distribution of technology intended to remove or prevent competing technology. Or, at least make it much much more difficult for competing technology to be useful or enter the market.
1:50 P.M. PST - An example of a poor engineering decision by Allchin? Or, is it just bad testimony?
q. I'm sorry. I stand corrected. And can you tell me why you want to do that, sir.
a. Because I think there will be additional performance gains that we would receive in the product. A whole core reason for the integration is to remove
code and unify the code, separate from any end-user benefits. Of course, there are those and benefits for developers, but this was simply efficiency from the
engineering perspective. User does similar things today that MSHTML does, but we want to be able to unify that. It will make it simpler for developers
and, frankly, reduce the amount of code which will result in a performance benefit for an end user.
Sometimes it is a good idea to combine products for the sake of efficiency. However, combining the OS with IE is clearly not one of them. IE substantially increases the overall size of the product. Combining two large programs with the hope that some small efficiency will be realized is false reasoning. That is being penny wise and pound foolish. IE increases the bulk of the OS some 25-30%. Sure some savings can reduced the increase. However, the 25-30% is the net figure after efficiencies have been taken into account.
The combination of the Os and the browser is a net harm for all users. It might be a little better for those customers who actually want both. However, placing as much as possible into the separate product and allowing it to be sold separately helps all consumers not just those that buy all Microsoft software and actually use their browser.
This argument proposed by Microsoft would apply equally well to blending the code for Office Pro (Word, Excell, Access and all the little goodies).
1:40 P.M. PST - Microsoft tries to fix false evidence?
Transcript Feb 3, PM:
q. And what, if anything, did you learn in your discussions with people in redmond with regard to whether or not the particular machine that was filmed
exhibits these characteristics?
a. It does. It still exhibits exactly these characteristics.
The machine may act as it did during the filming, if that is what this answer is supposed to suggest.
However, the reason that film was exhibited is simply not provable in that way. It is very poor evidence to make a video clip and expect that clip to prove anything regarding performance. The video clip remains suspect. And, the point that Microsoft wanted to make is not made by that clip (bogus clip or not).
1:12 P.M. PST - Sorry Jim, but the memory manager does not compare to the browser application.
q. But, despite one of the great things of windows being its ability to be configurable, you do not permit people to configure Windows to eliminate Internet
Explorer; correct?
a. Windows 98, that's correct. Just like we don't let them remove the memory manager.
What is becoming very clear is that there is no reason why IE is not removable. Why does Microsoft continue to insist
upon such a ridiculous position that someone a technical reason developed between Windows 95 and Windows 98? One
which is apparently solved by 98Lite?
12:55 P.M. PST - Gosh. Even the TCP/IP stack is removable. Surprise, surprise.
q. But you provide the user with a ready means of taking out the Microsoft TCP/IP stack out of Windows 98 if the end user wants to; correct?
a. That's right. There are environments where only, Say, in Novell environment that they don't want to use TCP at all.
Really? I though James Allchin did not understand the concept of letting customers configure their machine such that it could be optimized? I was sure he was suggesting that no consumer would not want IE pre-loaded with each bootup? Yet, here is seems to know something about Novell and why they do not use TCP.
Hey Jim! Lots of consumers do not want to use IE.
Loading up TCP all the time is diminimous. Pre-loading IE is a major hit on available resources.
12:40 P.M. PST - Basic Block Testing?
Transcript Feb 2 AM:
q. What is BBT?
a. It's Basic Block Testing. It's a way to be able to try to track what pieces of code refer to each other, often whether or not they're in the same DLL or not.
And we use it to pack pieces of code together to reduce the amount of paging to disk. So you make the system -- even though there may be a large amount
of code, the system still operates faster because it packs the code in.
This discussion brings up a serious potential problem. BBT permits Microsoft to decide which of its applications (if any) are important enough to favor (relative to competitors products) to cause the OS to be slightly modified in structure. It suggests that OS vendors should not be permitted to write any applications. It is clear that Microsoft here has customized the combination of the OS and IE to its benefit relative to competing browsers. Now maybe the modifications would also favor other browsers or maybe they would not. But by blending IE code with the OS code, the total size of the OS is greatly increased. IE is not harmed by this increased size. It is loaded. However, all other applications are disadvantaged by this process. All other browsers are disadvantaged. And, all other applications regardless of use are disadvantaged.
This is a very strong reason (among others) for making certain that applications are not bundled with operating systems
and that operating system vendors should not even write applications much less sell them.
12:30 P.M. PST - Code sharing supports Microsoft's claim of integration?
Transcript Feb 2, AM:
q. Okay. Now, you say this is supportive of your position. Now, Mr. D'souza says that this may not be helpful with what you're trying to show. Do you
see that?
a. Yes, I do. He also says "there is a huge amount of sharing and commonality here. Clearly, the integration is good." Now, the problem is that I thought --
since we can't even do code-coverage testing of the system, there's no way that you can do this in some -- in this approach that he was doing.
Microsoft has claimed that the OS and IE are integrated and therefore one product. Since this e-mail and spreadsheet
have not been admitted (sealed), they will argue that this proves integration. It may not. A test would have to run using
Navigator as well. I would expect such a test to show that IE is more integrated than Navigator is, but maybe not. The
point is simply that code usage does not show integration, it only shows code use. In the sense that Microsoft if likely to
use this information all applications are integrated with Windows regardless of who developments them.
12:15 AM PST - Evidence that more evidence is out there or destroyed by Microsoft that is directly relevant to this case.
Transcript Feb 2, AM:
q. Okay. The question was whether you know whether there is another Excel spreadsheet that will detail the 1903?
a. The answer is "no." And I thought I answered that at the beginning. If I didn't, I'm sorry.
The numbers in the e-mail and the spreadsheet apparently do not jive completely.
This is more evidence that Microsoft has either destroyed evidence or failed to comply with the request for documents. The judge does not want to be hearing either alternative. It means that he will have to decide this case without all relevant material.
Transcript Feb 2 AM:
Government Exhibits 1619 (email) and 1686 (spreadsheet) filed under seal. Microsoft does not want consumers to know what these documents show.
q. Now, let me ask you now to look at government exhibit 1686. And the total number of functions that are listed there is what, sir?
a. It's 1769, it looks like. I could be reading this thing wrong.
q. Well, it says total number of functions, 1769, correct?
a. Yes.
q. And it describes the functions in both shell and ie as 989, correct?
a. That's correct.
q. And the functions just in the shell as 142, correct?
a. That's right.
q. And the functions just in ie as 638, correct?
a. That's right.
If you attribute half of the shared functions to the OS and half to IE, you get 636 for the shell and 1132 for IE. That would suggest that 63% of the functions could be attributed to IE and 36% to the shell. Humm. If my guess of 70% was wild, it was not that wild at all.
If consumers thought that 63% of Windows 98 was related to IE, they certainly would have a different opinion upon just what products they should be forced to purchase and use on a daily basis. (Remember, if IE is loaded up, resources are consumed even if you never do use the internet.)
11:34 AM PST - James Allchin continues to refuse to testify truthfully
q. Is there a list of the 163 files that are said to comprise IE 4?
a. I don't know which particular files. I'm sure it includes things like shdocvw, mshtml, urlmon, and the like. but I have no idea how they classified it this
way. As you know, the IE general distribution includes Java and many other things -- Athena, and there's the Outlook Express. So. I mean, I don't know
how they characterize this particular presentation.
Bull.
There is a lesson here. If you conduct your legal affairs in such a way that you assume you can continue to hind the
truth, at a minimum you will be made to look like the court's fool. Allchin's credibility is approaching zero.
11:18 AM PST - Should about 18% of the price for Windows 98 be allocated to IE? (Hardly free.)
q. And it says that IE 4 represents about 17 -- about 18 megabytes of disk space; is that correct?
a. That's what it looks like at this point in time. That was another of my concerns.
q. Now, this shows the total disk space taken up in terms of megabytes for Windows 98 as being 103.5; is that right?
a. That's what this shows.
I am not suggesting that software products should be priced by looking at the disc space, but Microsoft claims IE is a free product. Yet this testimony suggests that roughly 18% of Windows 98 is IE. 17.47 percent of $200 is $34.95. Sometimes numbers just come together, but I swear I saw IE for sale priced at $34 or so.
Now if you will read my article "How much is Microsoft charging for IE?", I suggested a higher figure. I suggested that as much as 70% of the cost of Windows 98 is attributable to IE. Now maybe my $140 figure is not appropriate. Maybe $35 is a better figure. But, Microsoft's "zero price" claim is clearly incorrect.
By the way, as you may recall, when 98Lite was run removing IE from Windows 98 the disc space dropped 24 megabytes and the allocated memory consumed at boot up dropped 15 megabytes. My result corresponds fairly well with the testimony from James Allchin. (He really should get a copy of 98Lite.)
11:05 AM PST - The paper shredder does come in handy.
q. I will say to you that we've looked to try to find other project reviews like this and we've not been able to. Would these project reviews ordinarily be
maintained by Microsoft in the ordinary course of its business?
a. Probably not. They are just such snapshots in time. Probably not.
"Probably not" as in "if we shredded them they are all gone"? Good thing we have 98Lite. Certainly James Allchin's creditability has been shredded.
So far, nothing Allchin has testified to has been creditable. This claim by Allchin is more likely than not covering up evidence that was not turned over to the DOJ in response to a request for documents.
I guess if you going to just violate any law in your way, you might as well thumb your nose at the court too.
11:00 AM PST - IE defined? And performance better without IE?
q. However they are defining IE 4 -- and I know you've told my you don't know what they mean by IE 4 -- but they thought they knew what IE 4 was. And
whatever they meant by it, it's clear that the performance of Windows 98, compared to Windows 95, improves when IE 4 is removed, correct?
a. That's why we were working on it, yes. At this time it was one of my major concerns. I had several. This was one of my concerns. Boot time and app
start-up time.
q. What was the second one?
a. App start-up time.
q. Is that application launch time?
a. Yes.
This little Q&A illustrates the obvious. 1) Microsoft knows precisely what IE is. 2) the OS without IE runs faster 3) instead of IE providing a benefit it harms all consumers
The version referred to here is just not relevant. Anyone in the industry knows that a larger bulkier OS is going to demand more of the available resources and that demand is going to cause performance to suffer. If Microsoft wants to prove the opposite the burden is on them. (No fraudulent videos permitted.)
Gosh. Allchin can just download a copy of 98Lite. It is not too late to improve Windows 98.
10:45 AM PST - Oops, Windows 98 was tested for performance after all.
q. Let me ask you, if you would, to look at the page that is number 25 of the document. It bears the document production number ending 239. It is headed
"no ie 4: windows 98 versus windows 95 gold." And it says, "this build made for performance measurements only."
a. Yes.
q. And then it purports to test the performance of Windows 98 without IE 4, against the performance of Windows 95, correct?
a. Yes.
So, Windows 98 without IE was compared for performance?
10:30 AM PST - Windows 98 never tested without IE?
q. Now, i want to ask a different question. I am now not asking about pieces -- even pieces of ie. I am asking about IE itself. Did you test windows 98 without ie?
a. No. What we did is test missing pieces of ie 4, for example. I don't remember any test that we did where it didn't have any ie technology. I don't remember such a test.
Notice the careful words about "not remembering" such a test. Allchin suggests in other answers that parts of IE were tested for performance. For Allchin to even suggest that comparing performance of the OS with and without IE is a bit ridiculous. Microsoft would certainly be interested in knowing if performance suffered as IE was included. If Mr. Allchin missed his chance, he could download a copy of 98Lite and compare Windows 98 with and without IE.
Chances are very high that such tests were conducted and Microsoft is hoping such discovery can be avoided. I can only guess the results of such tests. However, using 98Lite less disc space is consumed, less code is loaded on boot up, less memory is allocated at boot up, fewer resources (System Resources, User Resources and GDI Resources) are used and less virtual memory is used. So, unless Windows98 is "fixed" to run slower with IE missing, performance would naturally be expected to be greater without IE.
Loading and minimizing almost any application can be expected to cause some performance degradation. IE is a large application. All large applications place additional burden on system resources. Even compressing a partition can have negative affects.
And, no one in the industry (except Allchin) would ever consider a video tape as useful information in evaluating performance issues. Do you really think that Allchin would accept a home movie of my running 98Lite? Do you think Microsoft's lawyers would sit him down and vouch for my 98Lite video demo?
10:00 AM PST - An innocent slip or a fraud?
Transcript Feb 2 AM:
q. But, sir, you say you didn't check it. You didn't look look at the title bar and it slipped by you.
a. Yes, sir.
q. Okay. People make mistakes. I can understand that. But how in the world could your people have run this program, calling it the Felten program, when
they at least knew it wasn't?
a. Well, I'm not sure that they obviously would do anything like that. So that's not what happened. I'm going to have to go back and understand. We'll
pull all the videos. They probably just filmed it several times and they ended up filming it -- you know, grabbing the wrong screen shot.
Just how much monopoly money is riding on this case? Does billions of dollars sound about right? Does not James Allchin's personal fortune bear on the results of this case? Does not Microsoft hire lots of sophmorish people hell bent on showing the world that Microsoft stands alone?
Microsoft thought that it was necessary to show harm to Windows 98 if IE were removed. Personally, I do not find their point to be very relevant, but they do.
You can draw your own conclusions whether this is just a slipped frame or a fabrication to defraud the court.
9:45 AM PST - The discovery in court by James Allchin (or should I say the blown coverage)
Transcript Feb 2 AM:
(videotape excerpt played as follows:)
speaker: it's taking a very long time, however -- unusually long to access that web site.
(end of playing of videotape excerpt.)
Mr. Boies: okay. Now, let's just stop it right there, okay.
mr. Boies: q. This is the portion of the clip where you are saying that after the felten program has been run, that the performance of windows is degraded,
right?
a. He is saying that.
q. Right. Well, he is saying it and you are vouching for it?
a. Yes. But from what i'm seeing here right now, i believe that that was done on a pre-felten system, although the point still stands. He has performance
problems and the windows update doesn't work, but i believe, from what i'm seeing here, they filmed the wrong system.
q. And when they were filming the wrong system and they were purporting to show the degradation and how long it took, they were showing how long it
took on a windows machine without the felten program being run, correct?
a. I can't be a hundred percent sure. I'm going to have to go back and look at it.
q. Well, sir, if you look up here, it says "microsoft internet explorer," correct, sir?
a. It does.
q. And you've already testified that you know that that means that the felten program has not been run, correct?
a. That's right. I believe that to be true.
(videotape excerpt played as follows:)
speaker: -- result of the performance degradation that has occurred because of running the felten program.
(end of playing of videotape excerpt.)
by mr. Boies: q. All right.
a. The performance problem exists.
q. Well, you say the performance problem exists, sir, and i know that that's what you say, okay. But this video that you brought in here and vouched for and told the court how much you'd checked it, is a video that purports to show right here on the screen a performance degradation, and it talks about how slow that is and how it's due to the felten program, and that's just wrong, right? it's not slow due to the felten program. If it's slow at all, it's because that's the way windows 98 is, right?
a. In this particular case, it's -- i did not think the felten program had been run. The performance problem exists. Yes, i did check the tape. I apparently didn't look at the title bar close enough with it going by. Why? because i personally tested this and i know it to.
Well. That is fine Mr. Allchin but do not attempt to defraud the court again with bogus evidence.
9:24 AM PST - The "bogus video" saga.
q. Now, one of the things that you said about professor felten's program was that when you tried to do the windows update function, there was a significant
degradation of the performance of windows. Do you recall that?
a. Yes, there was a statement on there about that. The test that we know shows performance has to be done in a controlled circumstance. You cannot
prove the performance slowdown when you're connected on the internet. You can only prove it in a controlled situation, which is how we test the
performance degradation. But, yes, i do remember that.
Any statement made by Allchin regarding "performance" is bogus. Here he states that any test on performance must be done in a controlled circumstance and simply can not involve the internet in any way. Anyone who has conducted performance testing of any kind knows that. Yet Microsoft video tapes an internet demonstration attempting to show performance degradation of the Felten modifications to Windows 98? That is pure hog wash not to mention the fact that it was doctored and they got caught.
(videotape excerpt played as follows:)
speaker: it is taking a very long time, however -- unusually long -- to access that web site. that's a result of the performance degradation that has occurred because of running the felten program.
(end of playing of videotape excerpt.)
Anyone can ascertain for themselves that Microsoft attempted to use a bogus video tape to prove to the court that performance degradation was caused by the removal of IE by the Felten program. This is getting very close to defrauding the court. Even if the video was not bogus this attempt in court is reprehensible.
The issue here is not which frames comprised the video clip (there so called innocent mistake). The issue here is using
fabricated video to prove a point which Microsoft thinks is key. I do not necessarily agree that what the Felten program
does or does not do is really that important. Clearly the point was made that Microsoft spending a few more hours than
did Felten could easily do a better job. (And, now we have 98Lite to consider as well. Perhaps during rebuttal?)
February 2, 1999 - Tuesday
5:45 P.M. PST - "what I wrote then was wrong", says Allchin... believe me now
Detail transcripts tomorrow ...with any luck or absence of video tricks.
4:30 P.M. PST - "This is getting ugly" by Richard Gray
Getting ugly is certainly one way to describe it. Mr. Gray's comments on witness creditability is right on point. About the biggest mistake you can make is get caught presenting a false case, innocent or not. And, this one does not look innocent. It looks to be an attempt to pull on over on the court. Maybe not. But, good law practice it clearly is not.
2:12 P.M. PST - Microsoft should be required to pay outside independent evaluators or testers who can verify any test results or be precluded from submitting test results of any kind.
This is ridiculous. Microsoft can no longer be trusted to prepare any of their own video tapes. Whether by incompetence or fraud, all of Allchin's testimony should and must be stricken from the record. (Do you think the Microsoft lawyers would ask for anything less if they caught the DOJ in falsifying a presentation? Like, maybe it was not Bill Gates in the videos?)
James Allchin's representations as to what those machines show or do not show can not be trusted.
How is the viewer to know which machines are in the video? How much RAM they have? How many discs are compressed? How much memory is allocated before a test is run? There is no way a video can be verified as showing anything. Tricks are easy to pull off. Video tapes of tricks are even easier. Almost anyone can slap together a video to show just about anything they want.
If Microsoft is going to make claims as to the detrimental affects of Felten's removal program or the upcoming 98Lite program, strict requirements must be established. The proper start is to toss it all.
1:45 P.M. PST - Microsoft accused of falsifying evidence by the DOJ
This is not a small matter. Falsifying evidence is serious.
Microsoft is real good at its tactics of presenting false information and then after the harm is done backing off claiming a mistake. The harm here can be remedied. Contempt of court is one possibility. A perjury charge is possible. Striking all testimony from Allchin is a possible choice. But, whatever remedy the judge chooses, should one be called for, he will not be happy with Microsoft. Judges just do not like to find out that one side or the other has tried to trick them with false evidence.
It also sounds like this trick Microsoft tried to pull goes to a key claim Microsoft is making in this case. Microsoft has claimed that removing IE from Windows harms in some way Windows 98. The video clip was offered to show that Windows modified by the attempted removal of IE ran slower. When IE is removed using 98Lite, one would expect the OS to run faster. Less disc, less allocated memory, less pre loading, less virtual memory used and fewer system resources (I.E. System Resources, User Resources and GDI Resources). So if Microsoft is going to claim the opposite, the burden is on Microsoft to present verifiable evidence, not bogus video clips.
1:10 P.M. PST - Direct Testimony for Michael Devlin, a Microsoft ISV is released
The problem with testimony coming from an ISV is that they are subsidized by Microsoft overcharging consumers.
There is little doubt that Microsoft forcing all consumers to buy, install, maintain, user and preload technologies from Microsoft does at least three things: 1) offers ISVs a much broader market for products tied to Microsoft technologies versus other platforms; 2) increases the cost to all consumers (cost here includes purchase to run-time overhead); 3) further increases the barriers to entry for any competitor in the consumer OS market.
I have no doubt that Microsoft could line up thousands of ISVs that would say anything Microsoft wants them to say.
Forcing consumers to buy Access would clearly help any developer of an application depending upon data base access. But, that observation would never justify forcing all consumers to pre purchase that technology.
It is nice for an ISV to say browsers should be part of the OS. I think data base management systems should be part of the OS. But, neither view justifies forcing all consumers to buy, install, maintain, use much less pre-load either technology. That is not the appropriate function for an OS (I.E. a bundling mechanism).
If any ISVs wants particular technology to be running on a target machine, they could easily license that technology from Microsoft, pay a reasonable fee and distribute the necessary DLLs to assure their application runs just fine. Any other competitor would have to do that if they wanted their technology to be relied upon by an ISV. Microsoft is no different. But, they do have the monopoly power to force what is best for Microsoft upon all consumers and take the money earned and subsidize ISVs. Microsoft's exercise of that power explains the absence of many competing technologies on the market. Fewer and fewer choices are available for ISVs to use. Microsoft has effectively precluded any and all competitors from offering new browsers or new internet technologies (to use one of Microsoft's new found words). The industry is effectively suppressed.
And, just to think that the economist hired by Microsoft completely missed this concept. An economist too. Go figure. For sure you would think an economist would understand the economic impact that an expanding API base has on potential competition. Or, did he conclude that barriers to entry in the consumer software industry did not exist?
Maybe Mr. Devlin would care to express his opinion upon the ease of entry into the consumer OS marketplace.
12:45 P.M. PST - The operating system is not defined by what comes in the box.
q. So that there is a KDE browser that is designed by somebody in Germany, and then Caldera adds it to its operating system and distributes it; correct?
a. Yeah, it's part of the Caldera operating system. If you go buy a box, it's in there.
This is just a pale attempt to suggest that the industry uses the contents of a box to define an operating system. Hint, Mr. Allchin, it has never done that. Just another example of false testimony. From the standpoint of the intellectual property rights, this is also a false statement.
It is a bundle, yes. But, bundling does not redefine product boundaries.
KDE is not more part of the Caldera OS than Netscape is of Windows 98 when it is installed. (In fact did not Bill Gates object strongly when bundling Navigator with Windows 98 was suggested as a possible settlement?)
12:05 P.M. PST - James Allchin suggests that IE is not free at all?
Transcript Feb 1 PM:
q. And one more time, am I correct, sir, that a user who had combined the original retail version of Windows 95 with a retail version of IE 4 would get
exactly the same experience as is described here?
a. Yes. Again, it doesn't matter how they got it, because they replacing core operating system files. IE is part of windows. That's what they're doing.
They're upgrading windows.
Again, the benefits are not due to the bundle but simply by buying IE 4.0. (Forget his claim that IE 4 is an OS upgrade, it is and always has been marketed as an internet application. Even the computer store clerks got it right.)
q. Now, sir, you said just now, and you said a couple of other times, it doesn't matter how they got it. Within microsoft, you discuss that it mattered a
great deal--did you not, sir?--because if they got it one way, it was a competitive choice, and if they got it another way, the consumer had to take it. Right?
a. That's a very--can you simplify the question?
Sure. James Allchin has to figure out a way to ignore a real benefit to consumers, their choice of what they buy.
q. Sure. One of the things that microsoft wanted to do was to get people to use Internet Explorer instead of Netscape Navigator; correct?
a. Yes. We wanted to be able to offer a product that was very competitive, yes.
The "yes" will do, thank you. (save the pep talk for sales meetings)
q. And you were concerned that if all you were doing was offering a competitive product, that some consumers would choose it and other consumers
wouldn't; correct?
a. No, sir, because, you know, there are--my particular perspective is you could add features in one narrow segment and just add the features, or you can
think broader and more innovative, and that's what we were trying to do. I do believe that we did some incredibly innovative things in IE 3 and IE 4 and as
we move ahead. And so, the bigger discussion that happened within microsoft was how much value are we going to give away for the down-level
environment versus what value we could get for Windows 98 or future versions of this system.
So, even though James Allchin is evasive here, he admits that Microsoft was planning to charge more for Windows 98? This answer is totally consistent with my long standing refusal to accept Microsoft claim that IE is free. If it is truly free, then what Allchin mentions here would not be an issue. Consumers would get IE free sooner or later. But, that is not what he is saying here. He is saying he wants to hold IE for Windows 98 in order to get higher value from it. That is a normal response any company would have. However, it is inconsistent with a claim that Windows 98 does not have a price component directly related to IE. Windows 98 does in fact have a price component for IE. Even James Allchin suggests that it does by this answer.
Microsoft can either claim it charges OEMs more for added features in Windows or it can claim IE is free. (Actually it does claim both.) But, it can not possibly prove both to be true.
q. Well, sir, let me see if I can be clear. You recognized, did you not, sir, that if the browser was simply made available as a stand-alone product, whether
it modified the core or not, that there would be people who wouldn't take it who you could get to take it if you tied it to Windows; correct, sir?
a. I guess my view has always been that there have been additional things that we could offer to customers that through this integration--what you just saw
is integration to me. It was very, good integration. So, this is what I was very excited about having. I was also very excited about having value in
Windows 98 so that we could, in fact, you know, get some dollars from having done all the work on this.
I guess the answer is "yes" with a tacked on advertisement. I clearly do not see a "no".
Again notice how James Allchin refused to address the question regarding a basic right of the consumer. When the question is raised about what individual consumers might or might not want to do, Mr. Allchin runs off into a prepared script suitable for a TV advertisement.
Consumers really should be aware of this guy (and this company). They ignore consumer's needs, wants and rights
(even in court).
11:38 AM PST - When is the choice of words just "semantics"?
Transcript Feb 1 PM:
q. And if the user concluded that this experience that you say can only be gotten from IE was important and more important than whatever experience could only be gotten from Navigator, the user, presumably, would choose Ie; Correct?
a. Correct, but we are playing a word semantic game here, but the answer is yes.
James Allchin is playing the "semantic game" here not Mr. Boies.
When the use of particular words describe a different underlying thought the choice of words is not just semantics.
Mr. Boies is asking if the same user experience can be realized more than one way and if the user preferred a different experience, the consumer could so select it buy buying an alternate product. This is a key question and does not rely upon semantics. And, he suggests that if the user wanted the Microsoft product they could choose it.
James Allchin is using semantics to avoid answering questions using standard terminology in the industry. However, his choice of words do not distinguish between what was done and what could be described using the standard terminology.
Microsoft is doing little but misusing words common to the industry to avoid accurately describing their conduct.
Microsoft getting on the "bucket" now and claiming IE 4.0 is an operating system upgrade is just semantics.
Microsoft getting on the "bucket" now and claiming only one product exists when two are clearly visible is just semantics.
Microsoft getting on the "bucket" now and claiming the user gets a benefit from the bundled when all benefits are available for purchase separately is just semantics.
Microsoft continues to fail to suggest a single benefit for consumer by all consumers being forced to buy both products. It just is not there. Software does not work that way. It is a characteristic of the technology that such bundles are never technically required in order for the products to deliver the full benefits to any consumer that might want them.
Careful use of words (or in this case, changing the use of words hoping for a legal defense) changes nothing.
11:25 AM PST - Do all applications become part of Windows after they are installed?
Transcript Feb 1 PM:
q. And when you say ie replaces the core operating system file, you're here referring to what happens when you load a retail version of ie 4 purchased separately onto the windows 95; correct?
a. It doesn't matter how it was purchased. It's just code, so it doesn't matter. If you load ie on a system, it replaces the whole series of files. It's part of Windows.
This is false testimony. I am sure the box for IE 4.0 does not claim to be an operating system upgrade, right? Does Allchin think that any third party application that might replace an old file somewhere becomes the intellectual property of Microsoft? That is what he is saying here. He is saying it is part of Windows. Microsoft is the exclusive holder of the Windows trademark. Maybe that logic is not offensive to the owner of IE, but it clearly is legally incorrect and offensive to all ISVs.
Microsoft markets IE 4.0 as an application. IE 4.0 is an internet browser. IE 4.0 is one of several competing products offered for sale by Microsoft. This testimony is knowingly false and offered for the purpose of deceiving.
Fortunately, the judge appears to see right through this false testimony.
11:15 AM PST - Two pieces of windows sold separately?
Transcript Feb 1 PM:
q. And that combination of those two retail purchase products would do exactly what you're describing on this video; right?
a. That's correct. We're taking two pieces of windows and putting them together.
Perhaps Allchin should take a course in computer science. When you install a program on top of an OS, that program is called an application. Does Microsoft think that avoidance of standard industry terms is going to afford Microsoft a fabricated defense?
Nobody is forced to use standard terms of the industry. But, I swear Allchin was supposed to have a degree or two. "I did not shoot the victim! I propelled one of six modules in his direction. That is all I did, your honor."
11:05 AM PST - Same as with buying them separately, right?
Transcript Feb 1 PM:
q. Yes. Let's just explore that a little bit. What you're saying is if you took a windows 95 machine without any integrated ie technologies, and you added a stand-alone downloaded off of the web or bought at retail ie 4, you would get the same rich experience that you say you got here; right, sir?
a. Yes, I believe that's correct.
Microsoft is crying like a little child here. "but, I don't want to sell them separately, some may not buy both". "I want everyone to buy both the OS and IE."
Or, you can just reply that Allchin will use his monopoly power to preclude customers and competitors from participation.
Either way, what has been demonstrated is that no reason exists for forcing all consumers to buy both. Microsoft is just
forcing the sale. Real simple.
10:37 AM PST - Microsoft admits to subsidizing ISVs at the expense of Consumers?
An interesting point that Microsoft is trying to make in court is that forcing all consumers to buy IE somehow helps their party developers, ISVs. Well. It does do that. ISVs are being subsidized at the expense of consumers. But, the harm goes beyond that.
Microsoft effectively blocks out competing technologies by this process. Rather than requiring Microsoft to compete fairly with other vendors for value added components and application development technologies, Microsoft uses its raw power to preclude all competition in those markets.
Microsoft claims that their componentized IE is great for ISVs. Yes. It may be. But, forcing that product upon all prevents any their party from ever developing competing browser technologies which could otherwise be offered as a superior alternative to IE components.
This is just another example of how Microsoft's raw monopoly power precludes competition.
Forcing the entire industry to use Microsoft technology or do not develop, is not a benefit to ISVs at all. That is a NET detriment. It is along the same scale that would result if only Microsoft sold compilers. No ISV in his right mind would suggest that having a single source for a development environment would be to his advantage.
So far, Microsoft has done nothing in court but promote the sale of its products. If has failed to show a single benefit to consumers or ISVs for having been forced to buy, install, maintain, use and pre-load IE. None at all.
The court is not going to decide which browser is best. Therefore, the testimony needs to address the benefits achieved by the packaging of the products not by the products themselves which can easily be achieved by legal packaging.
The only obvious conclusion is that Microsoft is making dead certain that the customer has no choice but to buy the Microsoft product regardless of merit.
10:25 AM PST - Product demonstrations by James Allchin are largely not relevant
It is nice for James Allchin to use his precious time on the time to show demo tapes of the products Windows 98 and IE. However the benefits of the two products are not in issue. Anyone can assume that both products offer fair value for their money.
The burden upon Microsoft is to show that forcing all consumers to buy both of them offers a benefit beyond those products being available separately. Microsoft Word and Microsoft Excell are "integrated" too. During a product demonstration, those two products can likewise be shown to offer some nice benefits. But, none of those benefits are derived from a forced packaging. Indeed, the same benefits can be realized by the consumer buying those two products separately as well.
Microsoft falsely claims only one product exists where two are clearly visible at all times. Microsoft claims the bundling of the browser offers benefits when no such benefit has yet to be shown. So far all Microsoft has done is advertise its products in court. That is fine. But, it is a waste of time. The quality or desirability of Microsoft's products is just not in issue. Forcing all consumers to buy both is.
February 1, 1999 - Monday
6:00 P.M. PST - Is Windows 98 a clock radio?
Clearly not. Any consumer can buy the OS (the clock) today and a browser (the radio) tomorrow. At the end of the second day the end result is identical. However, consumers could benefit immensely from being able to pick and choose their radio and their clock. Computer software permits that.
Microsoft needs to show why separate products do not or can not deliver the same result. Otherwise, they have failed to justify the removal of a competitor. There intentions are devious and deceptive. Clearly not every consumer benefits from being forced to buy clock radios. They cost more. Are larger in size. And, simply are not suited for all applications.
Microsoft is suggesting that all consumers should rightly be forced to buy clock radios simply because a few customers might benefit from the device. But, those few can either buy the clock radio or buy the clock and then buy the radio.
The only reason they even suggest that is because they have a monopoly on the clocks. They even sell radios without clocks (IE on Solaris). But, argue that all clocks must have radios.
That whole argue is bogus, illogical and deceitful.
5:40 P.M. PST - Microsoft has failed to point to a single function or feature available on if all consumers are forced to buy both products.
It is not enough for Microsoft to claim only one product exists. Evidence is constantly surfacing that IE is and always will be a separate product from the operating system.
The claims made by Microsoft are technically false and deceitful in presentation. The only reason why Microsoft is taking the position they have is based upon their ability to remove a competitor from the market unless the antitrust laws prevent it. Their continued suggestion that the appellate court supports their views is also incorrect. The appellate court made its decision solely on procedural grounds. Indeed, the trial court record they reviewed did not even address antitrust concerns.
5:25 P.M. PST - Microsoft lawyers are getting confused?
According to the comments made by Microsoft lawyers on the court house steps, they think that the benefits of a browser are being made illegal. They clearly are not. The DOJ does not suggest that any benefit is an illegal benefit. The whole point is that IE and the OS simply do not have to be sold as a single product in order for consumers to get those benefits.
This is an obvious truism of the computer software industry for all products integrated or not.
Microsoft falsely represents the position of the DOJ. The DOJ has never suggested that Microsoft could not sell IE. (At least not yet anyway.) It has suggested that the bundle of the OS and IE was arbitrary from the technology or customer benefit standpoint but mandated in order to rub out Netscape.
Are the lawyers from Microsoft really confused by this issue? I doubt it. They are just trying to promote Microsoft rather
than address the legal issues which they are paid to address.
5:10 P.M. PST - Sounds like a key Microsoft defense is bogus.
Perhaps tomorrow the transcripts will be available. But, from the jest of the news article linked above, it would seem that Allchin has failed to point out a single feature that requires all consumers to buy both the OS and the browser.
As mentioned below, Microsoft Word and Microsoft Excell do not require each other to be purchased in order for any extra benefits (assuming they even exist) to be realized. And, forcing all consumers to pre-load IE (as 98Lite proves unnecessary for proper operation of the OS) is a true detriment.
Where is the benefit Microsoft has promised for being forced to buy both on day one? The benefit for having them separate is clear and obvious to all. Less disc. Less code in memory. Pre loading avoided. Unnecessary overhead eliminated. Greater efficiency. Greater flexibility. The list goes on and on. Practical choice of superior technology now and in the future. Even ready access to Real Networks technology.
Microsoft is only promoting the sale of its products to the court. But, it is failing to address the issues in this case.
3:30 P.M. PST - Microsoft falsely attributes benefits to illegal bundling
I do not think anyone questions that the OS and browser together can provide additional benefits. After all Microsoft Word and Microsoft Excell together also provide benefits. But, the benefits are totally unrelated to any forced sale of both products. In fact, those benefits are fully realized just by buying both products. The bundling is not a significant event.
The bundling only harms consumers. Without the bundling consumers can avoid purchasing, maintaining, using and pre loading a browser is that is what they want to do. With bundling, no consumer can do so. Without bundling consumers can vote with their money to encourage superior products whether it comes from Netscape or some other company. With bundling, the market is ruined. And, other superior technology simply will not be made available to consumers.
Microsoft needs to show precisely what benefits are realized by the forced sale of the bundle versus permitting customers to buy IE if they want, or the Netscape browser if they want or not buy any browser at all if they want. How is the bundled advantages compared to those alternatives?
So far, all we have received from Microsoft is advertising material.
98Lite clearly demonstrates that Windows 98 is a superior operating system without IE being included. Bundling IE clearly provides a detriment to a large percentage of Microsoft customers (all customers who prefer another browser and all customers who do not use browsers). How is being forced to buy and pre-load IE a benefit to those customers?
Daily Wrap and Flow - Week 14 (Maritz, 98Lite)
Daily Wrap and Flow - Week 13
Daily Wrap and Flow - Week 12
Daily Wrap and Flow - Week 11
Daily Wrap and Flow - Week 10
Daily Wrap and Flow - Week Nine
Daily Wrap and Flow - Week Eight
Daily Wrap and Flow - Week Seven
Daily Wrap and Flow - Week Six
Daily Wrap and Flow - Week Five
Daily Wrap and Flow - Week Four
Daily Wrap and Flow - Week Three
Daily Wrap and Flow - Week Two
Daily Wrap and Flow - Week One