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This chapter is from the book

Everyone Is Subject to Subpoena

In Western culture, when push comes to shove and we really need to figure out what happened, our legal system has decreed that we're all potential witnesses. On reflection, this should not seem all that unusual. We are, after all, members of an open society that has endorsed neither royalty nor a privileged aristocracy as immune from giving testimony in our courts. Most of the belief systems underlying the everyday conduct of the culture rely on testimony to convey key information to us on a daily basis. As in other life skills, your skills as a witness can vary based on personality, experience, training, and attitude. The ability to communicate, both verbally and nonverbally, and the ability to relate to those outside your inner circle of friends and associates are clearly skills that you can hone over time. What may not be as clear to those who are celebrated for their mastery of technology is the impact of neglecting the development of such skills.

An example of this point should be familiar to most readers since it was splashed in lurid detail across most of our television and computer screens in 1999 during U.S. v. Microsoft Corporation, the antitrust case against the Microsoft Corporation. In late April 1999, the U.S. government released the full transcripts of the deposition of Bill Gates, President and CEO of Microsoft. At the same time, the government released the video recordings of that deposition.

The negative reaction to the public display of the three-day deposition (which surfaced for the first time during the trial that took place several months after the deposition) was immediate and intense. Gates has been criticized as not having been at his best during the deposition, with a demeanor that has been characterized as swinging from agitated, bored, or just plain irritated to impatient and uncooperative. The legal experts retained by the media to comment on the trial were flabbergasted by Gates's performance in the deposition; they mused about and openly questioned the quality of the Microsoft legal strategy in not better preparing Gates for his testimony.

Consider this exchange between Gates and David Boies, lead counsel for the government. Some commentators have suggested that this deposition is a textbook example of how not to conduct oneself during testimony. The questions explore Gates's communications concerning the intentions of Microsoft to give away its browser.

(David Boies)

Q :

Were you in 1996 trying to get financial analysts to develop a more negative and more pessimistic view about Netscape's business prospects?

(Bill Gates)

A :

Except through the indirect effect of them seeing how customers received our products and our product strategies, that was not a goal.

Q:

If that was not a goal, sir, why did you say in substance that the Internet browser would be forever free?

A:

That was a statement made so that customers could understand what our intent was in terms of that set of technologies and how it would be a part of Windows and not an extra cost item, and so people would have that information in making their decisions about working with us on Windows.

Q:

Now, is it your testimony that when Microsoft told the world that its browser would be forever free, that the desire to affect financial analysts' view of Netscape played no role in that decision?

A:

I can be very clear with you. The reason we told people that it would be forever free was because that was the truth. That's why we told them that, because it was the truth.

Q:

Now, Mr. Gates, my question to you—

A:

That's the sole reason we told them.

Q:

And my question to you is whether or not the truth was, in part, due to your desire to adversely affect financial analysts' view of Netscape. Did that play any role, sir?

A:

You've been asking me a question several times about why did we say something. We said it because we thought our customers would want to know and because it was the truth. And that explains our saying it completely.

Q:

And what I'm asking you, sir—and it may be that the answer to my question is, "no, it played no role." But if that's your answer, I want to get it on the record. And my question—

A:

Are you talking about saying it?

Q:

Yes.

A:

Or how we came up with our decision about how to price our products?

Q:

Let's take it each step at a time, one step at a time, so that your counsel doesn't say I'm asking you a compound question, okay? And first let's talk about saying it. I know you're telling me it was the truth. In addition to it being the truth, did the fact that this would, in your view, adversely affect the view of financial analysts of Netscape play any role at all in your decision to announce that your browser would be forever free?

A:

I actually think that came up in response to some questions that people asked in an event we had on December 7, 1995. So it wasn't so much a question of our saying, okay, we're going to go make this a headline, but rather, that there were questions that came up during that, including our future pricing plans.

Q:

This was a meeting on December 7 of what year?

A:

1995.

Q:

And was it attended by people outside Microsoft?

A:

It was a press event.

Q:

And prior to attending that press event, had you made a decision that it would be forever free?

A:

Well, if you really want to probe into that, you'll have to get into the different ways that we made Internet technology available. In terms of what we were doing with Windows 95 and its successors, yes. In terms of some of the other ways that we offered the Internet technologies, there was some—there hadn't been a clear decision about that.

Q:

When you refer to other ways that you offer Internet technologies, would you explain for the record what you mean?

A:

Oh, we created an offering that ran on the Macintosh OS that offered some but not all of the capabilities that we put into Windows and used a common branding for that. And we came up with a package that ran on a previous version of Windows, Windows 3.1, and made an offering of that. Subsequently I mean, not on that day, but subsequently.

Q:

And those were charged for; is that what you're saying?

A:

I'm saying that before the December 7th event, it was clear to everyone that in the Windows 95 and its successors, that the browser technology would be free for those users. But it was unclear to people what we were going to do with the other ways that we packaged up the technologies.

Q:

Would you read the question back, please?

(The following question was read:

"Q:

And those were charged for; is that what you're saying?")

The Witness: Well, they weren't available. So if we're talking about December 7, 1995, it's not a meaningful question. Subsequently those products were made available to the customers without charge. But I'm saying that there was some lack of clarity inside Microsoft even up to the event itself about what we were going to do with those other ways we were providing Internet Explorer technology.

Q

(Mr. Boies): Uncertainty as to whether you would charge for them; is that what you're saying?

A:

That's right.

Q:

Okay. Prior to the December 7, 1995 meeting, had a decision been made to advise the world that not only would the browser be free, but it would be forever free?

A:

Well, it's always been the case that when we put a feature into Windows, that it remains part of Windows and doesn't become an extra cost item. So it would have been kind of a silly thing for anyone to ask, including about that particular feature. And by this time, of course, browsing is shipping with Windows 95.

Q:

Exactly sort of the point I wanted to come to, Mr. Gates. When you put things into the operating system generally, you don't announce that they're going to be forever free, do you?

A:

Yes, we do. If anybody—

Q:

You do?

A:

If anybody asks, that's obviously the answer we give.

Q:

Have you finished your answer?

A:

Yes.

Q:

Okay. Could you identify for me the products other than browsers that Microsoft has announced that they would be forever free, expressly said, "These are going to be forever free"?

A:

As I said to you, I think that actually came up only in response to some questions. So it's not proper to ask me and suggest that we announced it like it was some, you know, press release announcement or something of that nature.

Q:

Well, let me come back to that aspect of it and just ask you for the present. What products has Microsoft said publicly, whether in response to a question or otherwise, that these would explicitly be forever free?

A:

I've said that about the broad feature set that's in Windows.

Q:

When did you say that, sir?

A:

I remember an analyst talking to me about that once at an analyst meeting.

Q:

When was that?

A:

It would have been one of our annual analysts meetings.

Q:

When?

A:

Not this year. Either last year or the year before.

Q:

Is there a transcript of that analyst meeting?

A:

Not with the conversation with that analyst, no.

Q:

There are transcripts of analysts meetings, aren't there, Mr. Gates?

A:

Only of the formal Q and A, not of the—most of the Q and A, which is where people are mixing around with the press and analysts who come to the event.

Q:

And this question that you say happened happened after the transcript stopped being taken; is that what you're saying?

A:

That's my recollection, yes.1


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