Date: Mon, 9 Nov 1998 02:23:49 -0800
From: Rick Moen <rick@hugin.imat.com>
To: editor@lwn.net
Subject: =?iso-8859-1?Q?Gass=E9e's_article_on_the_lawsuit=2C_translated?=

(The original French-language column is at
http://www.liberation.fr/chroniques/gassee.html.
Gassée's original is a delight, but very idiomatic and
difficult to translate.  Apologies in advance for my 
inevitable translation blunders.  -- Rick Moen)

>From Libération (http://www.liberation.fr/)
Reports: View from Silicon Valley

The Love Story behind the Lawsuit
by Jean-Louis Gassée
November 6, 1998

The matter at hand is not, you will have guessed, the
impeachment of Bill Clinton.  He's smiling after the 
magnificent slap in the face delivered by voters tired
of bluenoses and Inspector Javerts.  No, it concerns the
other Bill, Gates, who is worried at the momemnt.  Since the
beginning of the lawsuit, David Boies, attorney for the
Department of Justice (DOJ) has skillfully stressed Bill
Gates's memory lapses and contradictions at the time of 
his video-taped deposition.  Last Monday, after two weeks
essentially devoted to the testimony of Jim Barksdale,
CEO of Netscape, we have been treated to a new volley of
Bill's contradictions, evasive answers, and teeth-grinding.
One senses his energetic spirit and his knowledge of the 
particulars; even the judge couldn't prevent himself from 
laughing, in the face of the memory lapses and the e-mail 
[evidence's] brutal frankness.

Microsoft is behind the steering wheel, intends to remain
there, and therefore draws on all that moves.  That is 
what comes through clearly, even if, as Joel Klein (
deputy to Attorney General Janet Reno, who is behind 
these proceedings) underlines, that which is "obvious"
isn't necessarily persuasive to the court.  However, 
precisely so, one aspect of the Microsoft problem is
the transition from the legal to the political.  Even
if Microsoft's lawyers' skill suffices to remove some or
all of the company's intrigues from prosecutorial attack,
public attention bestowed upon the lawsuit cannot help 
but reinforce the impression that the company and its 
leaders abuse their dominant position, use blackmail and
manipulation to weaken the competition, and also to 
maintain their profits.

One expects that Microsoft's intrigues towards Netscape
will prove the DOJ's strongest weapon.  Curiously, Apple's
testimony may also prove dangerous, one year after the
highly publicised declarations of love between Bill and 
Steve.  Microsoft came to Apple's rescue by taking 5$ of 
its capital for $150 million -- an excellent investment:
the stock has more than doubled -- and by promissing 
to bring a new version of Office to the wedding basket
for their re-marriage.  In fact, Microsoft strengthened
its control over Apple while sidestepping a bad legal 
mis-step, while evicting Netscape from the Macintosh and
while trying to shake off QuickTime, Apple's multimedia
program that is vastly superior to Windows's equivalents.
A clever move!  The mis-step was an old incident (Apple
Chairman Mike Spindler spoke with me about it at the 
beginning of 1995) involving intellectual property;
involving patents. Gil Amelio, Spindler's successor, 
had finally concluded negotiations when Steve cut them
off at Apple.  Gil bitterly complained at seeing Steve 
sweep away the fruits of his labour.  In the event,
by the summer of 1997, Apple no longer had room to 
manoeuvre.  If Microsoft withdrew its Macintosh software,
or refused to update it, which amounted to the same thing,
Apple was doomed.  Gates took advantage of this to reach
an agreement gaining on all fronts -- including, as Avie
Tevanian, vice-president of product development for Apple,
testified, via blackmail over the applications:  an attempt
to kill Quicktime and torpedo Netscape's Web browser.

The most intesting aspect of this story is how far back it
goes.  At the beginning of the '80s, Steve feared a lack
of applications for the about-to-be-born Macintosh.  Bill
looked over the Mac and "dealed":  I'll create applications,
you give me a licence to use the interface.  (One must recall
that, for Microsoft, at that time, it had been DOS.)  The
licence was furnished with two time-based conditions:  
It expired in 1985 or 1986, and Microsoft committed to giving
a small lead time to the Mac before releasing competing products
resulting from the licence.  With the Mac coming out later and 
with more difficulty than anticipated. Microsoft showed its
first versions of Windows.  In 1985, Gates threatened to 
suspend development of Mac applications if the licence were 
not renewed.  I know something of these threats:  I was there,
as I was to witness a 1988 deposition.  John Sculley (Steve
had departed) consulted his staff who, unanimously, pleaded
with him to send Bill back to get himself watered by the 
Seattle rains.  Scully had dinner with Gates and Bill 
Neukom (Vice-President of Legal Affairs at Microsoft, and
a formidable attorney), caved in and signed a lame contract
that the lawsuit of 1988 would not be able to cancel.  Before
Steve's departure, Gates had obtained from him that he would
put among the sacrificial offerings the lucrative Mac BASIC.  
Why?  The licence contract for the Apple II's BASIC had expired.
How could Apple deliver an Apple II without Applesoft BASIC?
A similar situation occurred in 1989 when Gates obtained a
licence for TrueType typographic fonts, promised a competitor
to Adobe's PostScript interpreter, provided that Apple cancel
an identical internal project.  One does not pose the 
question of what would have been the fate of the Macintosh
and its development ecosystem, had Microsoft withdrawn in
1985 -- supposing that the threat at that time were not a
bluff.  But, it is certain that, not satisfied with its 
dominant position on 95% or 97% of PCs, Microsoft also controls
the remainder of personal computing through the intermediary
of Office and Explorer for Macintosh, domination for which the
foundation was established even before the Mac's release in
1984.

All this raises the question of the DOJ antitrust action's 
result:  Will what is obvious for the layman also be so for
the judge?  It would seem that the the DOJ is optimistic, and
is now preparing for the aftermath of victory: the remedies,
the measures to take to un-jam the industry so strangled today
by Microsoft that famous CEOs tremble like famished contractors
at the idea of testifying against Bill.  In the Valley, rumour
has it that several local experts were already probed.  It
seems that splitting [the company] into pieces is not advisable:
Sever the applications from an operating system, and they grow
back.  This is not like classical businesses; there, one can
separate the telephone headset from the network.  Not much 
better would be to name a governmental "trustee" charged with 
with supervising the propriety of Microsoft's actions -- 
one might as well charge a hen with organising the foxes.
There remains one popular suggestion:  Force Microsoft to
deposit the Windows source code at three competing companies.
Windows, the Linux of Year 2000 -- I exaggerate a little.
One can hardly imagine the impact on the industry, but one 
certainly would not be bored.

As to the calendar, let us not be hasty.  Assuming Microsoft
loses in the original venue, there are appeals, perhaps to the
Supreme Court, i.e., years of [legal] procedure with, all the
same, climate completely modified by a hypothetical Microsoft
defeat in the original venue.

Hypothetical because, as one saw with the other Bill, compromised
situations, or compromising ones, are sometimes reversed with
the help of adversaries victimised by an untimely evaluation.

-- JLG