Lawyers grapple with cyberspace, and lose

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The Independent Online
THE PRETTYMAN court building in Washington has seen more than its fair share of drama and excitement this year. The camera cables still snake around the pavement, and key positions have been staked out by the networks for months as they chased the grand jury that was pursuing Bill Clinton and his affair with Monica Lewinsky.

Now, another drama is unfolding here, though it has nothing to do with sex. The Microsoft trial, one of the most important competition cases ever, is under way in Court Room 2 on the second floor, a stark and intimidating room with wood panelling and a solid slab of marble that frames Judge Thomas Penfield Jackson at the bench. But this drama is different.

For a start, it is far from clear that everyone present understands exactly what they are debating. At one stage, a government lawyer referred to what he called a "lojin" protocol. Shouldn't that be login, inquired Charles Barksdale, the head of Netscape, one of Microsoft's key rivals? Oh yes, said the lawyer. He had just been checking that everyone was still awake.

The cross-examinations and testimony are far from exciting, for the most part. This is a dense case about technology and business, and it frequently descends into incomprehensible lists of acronyms and descriptions of business meetings that cannot have been that comprehensible at the time; at several years' remove they are even harder to understand.

But the key issue is, or should be, simple: did Microsoft abuse its market position to put the squeeze on Netscape and others?

What is really at stake are two concepts of business. Microsoft says, in effect, that it was doing what everybody was doing. It used its control of key technologies to further its own interests, competing and co-operating with others in the market as applicable. Its lawyers took pains to accuse America On-Line, the internet services provider, of trying to divide the market with Netscape, a charge which AOL denied strenuously. But the government says that companies like Microsoft have a particular responsibility, and that doesn't change, whether they are in the oil business or the software trade. The law being used, the Sherman Act, may be more than 100 years old, but competition law does not go out of fashion.

The old and the new are everywhere on display in the courtroom. The case centres on the latest technology, and on Microsoft's alleged attempt to gain control of the internet browser market by crushing its rivals, but the Microsoft lawyer, John Warden, cheerfully admits that he does business with a fountain pen and a yellow legal pad. The evidence largely consists of electronic mail between the various players. But it is displayed on clunky screens that are all but impossible to read, and the witnesses rely on paper transcripts which frequently seem to get lost.

The trial is on for four days a week, and at the end of the second week, only two of the 25 or so witnesses have appeared. Everything seems to take an age. Mr Warden spent hours dissecting contractual negotiations between AOL and Netscape, while everything seemed to move slower and slower and the eyelids of the 80 or so spectators and press grew heavier and heavier. It will be a familiar feeling to anyone who has tried to surf the internet, and found that the pace is more similar to walking through toffee than zipping down the information superhighway. The star turn, of course, will be Bill Gates. Videos of the Microsoft chief's testimony were promised all week, but never turned up because of time constraints. Maybe that is no accident. Every day that the videos are delayed is another day for Microsoft to develop its case, and the public relations strategy it will use to defend itself outside the court. The Gates testimony will be crucial for the government, which will use it to depict Mr Gates as a voracious monopolist. But "every time we get ready to play it, Microsoft takes all day," said David Boies, the lead counsel for the Justice Department. Perhaps they are waiting for that irritating little grey box to flash up on the screen and tell everyone that "This operation has timed out".

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