Spin City As the Microsoft trial proceeds, the appearance of truth is becoming as important as the truth itself. At least, that's what the spinmeisters for both sides seem to believe.
(FORTUNE Magazine) – MONDAY, NOVEMBER 16: "Did you write [this E-mail], Mr. Gates, on or about January 5, 1996?"
"I don't remember doing so specifically, but it appears that I did."
"And the first line of this is, 'Winning Internet browser share is a very very important goal for us.' Do you see that?"
"Do you remember writing that?"
"Now, when you were referring there to Internet browser share, what were the companies that were included in that?"
"There's no companies included in that."
"Well, if you're winning browser share, that must mean that some other company is producing browsers and you're comparing your share of browsers with someone else's share of browsers. Is that not so, sir?"
"You asked me if there are any companies included in that, and now--I'm very confused by your question."
"All right, sir, let me see if I can try to clarify. You say here, 'Winning Internet browser share is a very very important goal for us.' What companies were supplying browsers whose share you were talking about?"
"It doesn't appear that I'm talking about any other companies in that sentence.... I've really read it carefully, and I don't notice any other companies in there."
"Oh, you mean you don't see any other company mentioned in that sentence. Is that what you're saying?"
"The sentence doesn't appear to directly or indirectly refer to other companies."
Week five of the Microsoft trial has barely begun, and the boys are at it again. A new witness--a Department of Justice computer consultant named Glenn Weadock--is on deck today. But before he takes the stand, another portion of the Bill Gates deposition is being shown. This has become the standard tactic of David Boies, the government's chief litigator: Before introducing a new witness, Boies shows a portion of the video that pertains to the upcoming testimony.
So, for the third time in two weeks, we get the bizarre spectacle of Boies and Bill Gates deconstructing everyday words and commonplace sentences--many of them words and sentences written by Gates himself. Though we've become accustomed to these exchanges, they have not yet lost their power to amaze. Today's hourlong excerpt is the most jaw-dropping yet. The transcript can only hint at how surreal it is to watch America's richest man act this obtuse, this forgetful, this dense. The effort it must have taken! There is virtually no moment in the video that doesn't sound like this:
"What non-Microsoft browsers were you concerned about in January of 1996?"
"I don't know what you mean 'concerned.' "
"What is it about the word 'concerned' that you don't understand?"
"I'm not sure what you mean by it."
"Is the term 'concerned' a term you're familiar with in the English language?"
You wonder, as you watch this appalling performance, what in the world did Gates think he was accomplishing by taking this tack? Did he think he was winning a battle of wits? Did he believe his absurdist responses would aid his cause? If you're a member of the press, you're likely to have another thought as well: How can Microsoft possibly put these exchanges in a positive light? How is the company going to spin this thing?
That task falls to 40-year-old Mark Murray, Microsoft's chief spokesman at this trial. A pleasant, unflappable pro, Murray spent his career in city and state politics before joining the software giant 2 1/2 years ago. He sees similarities between his former career and his current one. "This has become, in some ways, a political campaign," he says. Certainly, Murray and his PR team are treating it like a political campaign.
Each day, Murray sits directly behind the defense table on a long bench reserved for members of the Microsoft legal team. During breaks he and his staff buttonhole reporters to explain why this or that point helps Microsoft. Twice a day--at the lunch break and again at the end of the day--Murray steps in front of the microphones outside the courthouse, where he gives us Microsoft's official spin on what we've all just seen with our own eyes.
The government is spinning, too, of course. In the weeks leading up to the trial, the Wall Street Journal, in particular, was the recipient of leaked E-mails and documents that cast Microsoft in a harsh light--a classic form of prosecutorial spin. The feds have their own courtroom spinmeisters, starting with Boies, who usually follows Murray to the microphones to answer questions. But at this stage of the trial, the government has the easier task. The nasty E-mails, the anti-Microsoft testimony, and the easily ridiculed Gates deposition video make for news stories that practically write themselves. (The New York Times' headline tomorrow will scoff: ON TAPE, GATES SEEMS PUZZLED BY WORDS LIKE "MARKET SHARE.") For the government, the trial is the spin.
Just as Microsoft's lawyers try to create an alternate reality for Judge Thomas Penfield Jackson--a reality where nasty E-mails don't mean what they seem to mean, where witnesses have dark and untrustworthy motives, where a company with a 90% share of the desktop operating system market is not really a monopoly--so must Murray create an alternate reality for the press. It's frustrating, because reporters are more impressed with what they see with their own eyes--with the "sizzle of the trial," as Murray puts it--than with Microsoft's interpretation. And while reporters generally like Murray, some have come to resent the nonstop spin and its occasionally Orwellian overtones. Days like today, when Murray has to put a good face on another awful Gates performance, are more Orwellian than most.
"This case is not about whether Bill Gates pauses for 15 seconds or what kind of soda he's sipping," he begins. (Note to Warren Buffett: Your buddy sips Coke throughout his deposition. This is not a successful product placement.) "The government is trying to turn this case into a referendum on how Bill Gates answers questions." As Murray explains it, Gates is not a man evading simple questions--not at all. He's a man nobly refusing to give ground. "Bill Gates did not let the government put words in his mouth," says Murray. "He forced the government to ask very specific questions."
At that, one reporter completely loses it. "That's just bullshit," shouts Brock Meeks, who works for (of all places) MSNBC. As Meeks launches into a lengthy diatribe, Murray fixes him with a look that drips with pity. When Meeks finishes, Murray brushes off his tirade like a piece of lint and moves on to the next question.
Later in the afternoon, we again gather to hear Murray. Before he begins, though, the Microsoft spokesman muses about what Washington is going to be like once winter sets in. "What happens when it snows?" he asks no one in particular. "Who shovels it?"
"That's what you've been doing ever since this trial started," retorts Meeks. To his credit, Murray laughs right along with the rest of us.
TUESDAY, NOVEMBER 17: Are Microsoft's PR efforts having an effect? Here's a hint: In this morning's edition of USA Today are the results of a USA Today/CNN poll about the company and its CEO. According to the poll results, America's approval of Gates has actually risen slightly, from 55% to 56%, between early March and now. What's more, the poll found that by a wide margin--44% to 28%--Americans side with Microsoft, not the Justice Department. You sit in the courtroom all day, and you think: Microsoft is taking a beating. But so far at least, that impression has not spread beyond the confines of the federal district courthouse.
As it happens, I'm reading the USA Today poll results in a small hotel conference room. It's early in the morning. Along with about a dozen other reporters, I'm here at Microsoft's invitation. It's time to be spun again.
The main spinner this morning is Tod Nielsen, Microsoft's head of developer relations. Though only 33, Nielsen has been with Microsoft for 11 years. Gregarious and excitable, he seems bursting to tell you all the wonderful things Microsoft is doing. This morning he's going to explain why Windows bested IBM's OS/2 operating system fair and square.
Why is this deemed necessary? Because Microsoft is expecting a new witness, IBM's John Soyring, to take the stand today and accuse the company of using its monopoly power to keep software developers away from OS/2. Microsoft wants to use this private session to make its case directly to the press, uninterrupted by the usual E-mails, Gates testimony, and so on that keep getting in the way.
Nielsen is more than up to the task. "OS/2 failed," he says with a smile, "because it failed to meet a broad range of customer needs." He adds, "Great products--they succeed! Bad products--they fail!" He compares OS/2 to the movie Ishtar.
There's just one problem here. None of us have read Soyring's testimony. Though the IBM executive submitted it several weeks ago, the government has yet to release it to the public. We find ourselves in the weird position of having to interrupt Nielsen every few minutes to ask him to describe the particular allegation he is so engagingly rebutting. In other words, he has to re-create the accusation for us before he can attempt to spin a rebuttal.
Soyring doesn't even make it to the witness stand until mid-afternoon. Microsoft lawyer Richard Pepperman takes until then to finish with Weadock, Justice's computer consultant. Alas, Weadock's testimony is dry as dust. Weadock is by far the government's weakest witness; his appearance seems mainly designed to allow the lawyers to play portions of depositions from executives of several big Microsoft customers, including Boeing. But the reporters all know that the Boeing exec was originally on the government's witness list, and the fact that he was pulled for Weadock strikes us as weakness in the government's case. We are not alone in this assessment. William Kovacic, a visiting professor at George Washington University--and the rare neutral observer of this trial--says, "The government needs a big industrial company that can show direct proof of consumer harm." Needless to say, the lack of evidence of such harm is a standard part of the daily Microsoft spin.
Just before he leaves the witness stand, Weadock hands Microsoft a delicious moment. As part of his consulting duties for the government, Weadock conducted tests attempting to "remove" Microsoft's browser, Internet Explorer, from Windows. Pepperman brings up a memo in which Weadock explained to the Justice Department that it was "not practical" to ask Microsoft to delete all the browser code from Windows because it was so tightly integrated into the operating system.
"Are you aware, sir," thunders Pepperman, "that three days after you sent your memorandum to the Department of Justice," the government asked the court to force Microsoft to adopt the very solution its consultant had deemed not practical? A government lawyer jumps up to object. Objection overruled.
At the mid-afternoon break, Nielsen sidles up to me. "Did you hear that?" he asks, practically jumping out of his shoes. "They knew three days ahead of time that their own remedy wouldn't work! And then they said we should be held in contempt!" As he walks off, he turns back to me and says, "That's the Todster's tip for today."
WEDNESDAY, NOV. 18: Finally on the stand, Soyring is giving Microsoft's legal team a perfect opportunity to trot out its favorite defense: the "everybody does it" defense. Over and over it has introduced evidence that Microsoft's enemies "collude," that other companies have exclusionary contracts, and that they tacitly agree to stay out of one another's business--all the things Microsoft is accused of doing. This is another point that Murray stresses to show that Microsoft is winning. But it's actually a better example of the way the Microsoft people keep seeing things through a unique prism. As Kovacic points out, "Saying that everybody does it will not win for Microsoft. They have to say that everybody does it because it serves beneficial purposes. We're still waiting to hear that part of the argument."
But never mind. Because OS/2 is an operating system that competes with Windows, the lawyers this morning are making hay comparing IBM's marketing, contractual, and other practices with the (very similar) practices of Microsoft. The practice under discussion today is "integration." After all, integrating Internet Explorer into Windows is, according to the government, an anticompetitive act that violates the antitrust laws.
So the question is: Does IBM "integrate" its browser into its OS/2 operating system? Soyring says no, insisting that the IBM browser is "bundled" rather than "integrated," meaning that it's a separate application that's easily removed. Yet as Microsoft's lawyer keeps pointing out, IBM's marketing materials constantly refer to its browser as being "integrated" into OS/2. The lawyer enters into evidence the back of a retail package of OS/2. "The built-in Web browser is your best place to get you to your favorite places on the Web," it reads. He introduces the front of the box, which has similar language. He moves to an internal IBM document: "Internet access kit has been integrated into OS/2," it says. "What does that mean?" the lawyer asks.
Soyring sighs. "That is not a term I would have used in creating this particular package."
Murray knows he's got a winner today. At the lunch break he says, "One thing we heard in this morning's testimony is that IBM agrees with Microsoft that integrating technologies is something consumers want. It's kind of a humorous situation," he continues. "IBM had their marketing people telling everybody their product was integrated, even though it wasn't. Microsoft's product is integrated because we know that that's what consumers want." Murray sounds positively triumphant.
THURSDAY, NOV. 19: Is the government starting to get to Gates? It sure looks that way. Last night Microsoft arranged to have an AP reporter interview the CEO. In the interview Gates accused Boies of "doing his best over many, many long days to put words in my mouth." He went to say that he answered all the questions "completely" and "truthfully." He also challenged the government to call him as a witness. But why would the government bother when it has 20 hours of damning videotape? As Boies is fond of pointing out in his spin sessions, if Gates really wants to be a witness, he can get Microsoft to call him to the stand.
At around the time this story was moving on the wire, I was having a drink with Murray. Over the past few weeks I've come to believe that the Microsoft team isn't just cynically spinning the press when it explains away the Gates deposition. Their efforts are more genuine than that, more heartfelt. I think the Microsoft people truly are seeing something that is fundamentally at odds with what the rest of us see. That's one of the things I wanted to ask Murray about. "For people who know the industry well, they know that the government is asking broad and naive questions," he told me. "Bill is completely right to narrow the questions." He pointed to the deposition of an Intel executive that was played in court. That man, Murray said, was every bit as "evasive" as Gates is accused of being.
The difference, I replied, is that that witness was not playing the ridiculous word games that Gates has resorted to. "The government wasn't trying to break up his company!" Murray responded heatedly. "It's the government attorney who's playing word games so he can hang Gates with those words. Bill is strong-willed and determined not to let that happen. He relishes the intellectual exercise."
Last night he almost had me convinced. But something happens today that jerks me back from the precipice. This morning, before court begins, lawyers for both sides meet briefly in Jackson's chambers. At the midmorning break, several reporters try to find out what went on. They get vague, conflicting responses, but no real answers. Late in the day, however, two Bloomberg reporters somehow snag an advance copy of a transcript of the closed-door conference and land themselves a nice little scoop.
According to the transcript, Microsoft's chief litigator, John Warden, made yet another plea to the judge to get the government to stop playing the Gates deposition in "bits and pieces." The government employs this tactic, Warden complained, solely "for the purpose of creating news stories." He asked Jackson to force the government to play the tape in its entirety--and get it over with. Jackson declined. "I think the problem is with your witness, not with the way in which his testimony is being presented," the judge replied. "It's evident to every spectator that for whatever reason...Mr. Gates has not been particularly responsive to his deposition interrogation."
Some realities, it turns out, just can't be spun.