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Lawyers learn geek speak to take on Gates

26 August 1998
The Times

Oliver August reports from New York

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Language barrier broken as Microsoft battle hots up.

The man at the other end of the phone kept referring to "dog-food". At first, I assumed I had misunderstood this US civil servant. We were in the middle of a complicated discussion about the merits of the anti-trust lawsuit by the Justice Department against Microsoft. But he said it again. "They were trying all these applications out on dog-food." I interrupted him: "Are you sure this is the same case you're referring to?"

"Microsoft, right? That's what you were calling about." I said I meant the software company not the petfood producer. He started laughing. "Dogfood - that's what Microsoft programmers call flawed software. When they can't sell it but it's good enough for internal use. Like, good enough to feed the dog."

The civil servant did not find it at all unusual to be talking geek lingo. The Justice Department has devoted huge resources to the high-profile case against Microsoft, and some of the free-wheeling attitude of the programmers has rubbed off on the lawyers, policymakers and spokesmen.

A year ago, most trustbusters were only vaguely aware of what it meant to "self-toast" (contradict yourself). Vaporware (a product that never reached the shelves) was assumed to be a cousin of Tupperware. They were unaware that having a conversation in a room constituted communicating by face-mail (as opposed to voice-mail or e-mail).

Today, civil servants proficiently parley in Microspeak. Having studied thousands of internal Microsoft documents and computer messages, lawyers will now ask at the end of lunch: "Which side of the feewall is this?" They mean: "Who will pick up the bill?"

Once more than a continent apart, Microsoft's Seattle and trust-busting Washington today seem closer together than ever. Like the civil servants, Bill Gates, the Microsoft chairman, has adopted the opposition's language. Gone are the harsh words about defending the freedom of American enterprise. His dulcet tones of diplomacy sound like this: "Government is pervasive and most interactions people have with it are positive. Governments create order and provide services, including schools and health systems and roads."

But the language of compromise spoken on both sides is deceptive. The niceties will end when the legal battle finally moves into the courtroom next month after almost a year of wrangling. Each side has a lot more to lose than just a court case.

If the Justice Department is defeated in its most high-profile anti-trust case in a generation, it may lose public support for its aggressive stance in other recent cases.

And if Microsoft loses, the ultimate penalty, the dismemberment of the Gates empire, could be the next target of the trustbusters, etching their names into the annals next to the men who broke up Standard Oil at the start of this century.

Wall Street analysts and Microsoft rivals are eagerly trying to assess what the Justice Department's chances are. The majority of opinions suggests that Bill Gates will once again emerge triumphant.

In the past two months Microsoft has repeatedly won the day in pre-trial hearings. William Kovacic, a law professor at George Mason University, said: "This is a really bad omen."

One increasingly popular theory compares Mr Gates's case to the legal situation of Bill Clinton. The President has recovered from an almost hopeless position by making selective statements and listening carefully to his lawyers. Mr Gates, it seems, has copied the recipe of Washington's ultimate legal insider.

Last week, for the first time, he pinpointed the date when Microsoft started work on its Internet browser for the Windows operating systems that forms the basis of the antitrust case.

The Microsoft chairman claims that on April 5, 1994, he asked programmers to integrate the browser into the operating system (thereby forcing 90% of computer buyers worldwide to own the Microsoft browser).

The date is highly significant. Two days later, Netscape, now Microsoft's main rival, was incorporated. Mr Gates claims to have said at an executive retreat: "Hey, we're going to get it integrated into the operating system."

Pinpointing the date is a risky strategy. If the Justice Department finds internal Microsoft documents that "self-toast" Mr Gates, his whole defence could be undermined. Government lawyers have already retrieved some damaging material from company computers. Not all of it is directly related to the browser case but it offers a candid view of the aggressive Microsoft culture. A September 1997 message from one official reads: "Let's move and steal the Java language. That said, have we ever taken a look at how long it would take Microsoft to build a cross-platform Java that did work? Naturally, we would never do it, but it would give us some idea of how much time we have to work with in killing Sun's Java."

Lawyers may regard Microsoft's strategy as risky but that won't disturb Mr Gates. During one of his regular question-and-answer e-mail sessions on the Internet he wrote this month: "I like games, off and on the screen. I'm a fairly avid bridge, poker, go and chess player." He did not list the Monopoly board game.

While the chairman has been co-ordinating the preparations for the trial, his browser salesmen have made advances that no ruling short of a break-up of the company could reverse.

Netscape was commonly believed to have the upper hand in the browser market. Its product is installed on most computers. But a new study has found that Microsoft may already have overtaken its rival, making monopoly fears all the more urgent.

Positive Support Review, an Internet consultancy in Los Angeles, has used a new measure to compare browser popularity. Rather than count the total number of browsers, it monitored how much time Internet surfers spent using the two browsers. Surveying 450,000 hits at a wide range of websites, it found that use of the Microsoft product had risen from 42% to 55% over the past year. Should the trend continue, Microsoft may one day attempt what it has done with many other software competitors: to buy it.

In the Microspeak lexicon there is a phrase for that occasion, too: "Open the kimono" - which translates as an aggressive demand to open the books for inspection. The next step after that is the "braindump", when technical knowledge is passed on. The anti-trust case may be the last chance to prevent such a scenario.

(c) Times Newspapers Ltd, 1998.

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