Another 'Bill' in court: But this time, eyes glaze over

'Perry Mason' moments don't happen in the Microsoft case, where 'functionality' is defendant's hot button.

As the Microsoft antitrust case continued to wind through US district court this week, it had echoes of another, bigger Washington trial.

Here was the press again flocking to the E. Barrett Prettyman Court Building. Ken Starr was in the courtroom. And on the witness stand was Bill arguing about definitions – though this time Starr was just an observer and the witness's last name was Gates, not Clinton. Bill Gates isn't the leader of the free world, but, if you believe the plaintiffs, he may be just as powerful.

The court is considering what penalties Microsoft should face for its past anticompetitive practices, and Mr. Gates appeared before Judge Colleen Kollar-Kotelly to explain software he masterminded as nobody else can.

Or at least that was the reason in theory. In reality, Gates probably came for that most time-honored Washington reason – image control. Prior to this week, his only courtroom testimony in the biggest antitrust case in decades was done via videotape, a strategy that was not exactly a hit. Testy and condescending, yes. Warm and fuzzy, no.

So the Gates that entered court on Monday was a congenial, deferential sort, especially where the judge was concerned – looking at her, nodding, and even smiling. He had his pregnant wife along with him. And he was happy to answer most questions, though not always directly.

Gates was the computer geek with a heart. He realized he'd made some mistakes, but said he and Microsoft were different now. In fact, he said, they were under assault by the states' proposed penalties that would require Microsoft to create a stripped-down version of Windows that doesn't have some of the component parts – like Internet Explorer – and substitute competing software. Gates said Windows can't run properly without them. The states also want Microsoft to create a "secure facility" where people can view the source code for Windows so they can make programs run properly with it. Gates says making public those millions of lines of "source code" would end "innovation" and threaten the company's very existence.

For the plaintiffs, Gates's appearance was a big chance to get Microsoft's top man on the stand and push him.

Steve Kuney, the state's attorney, pointed out what he said were inconsistencies in Gates' testimony, trying to impugn his credibility. Much of the turnout, press and otherwise, waited in anticipation of a "Perry Mason" moment, when Gates would fall to the ground in a heap, crying, "It's all true." Or perhaps the states' lawyer would say, "Then how can you explain this?" and present an e-mail flattening Gates' arguments.

Neither happened. Instead, Gates spent hour after hour going over the minutiae of previous testimony and old e-mails that were displayed on large flat-screen TVs. A nifty program (yes, it was running on Windows) magnified text for the audience – though one spectator used binoculars for a better view.

But the most serious questions centered on how Gates interpreted the wording of the states' proposals. It turned out that he viewed the proposals very broadly – sometimes excessively so, and in ways that could harm Microsoft and, hence, needed to be changed.

Jack Krupansky, a former software entrepreneur, sat busily taking notes. "I have been here for the whole thing. From the very beginning," he said. "I moved down here from New York, and thought I wanted to write a book about Washington, but then this case started right as I arrived. Now I think I am going to write something on this."

Nearby, one viewer had his head in his hands, and another bobbed in and out of sleep. Mr. Krupansky motioned to them. "They ate too big a lunch.... Eating lunch kills you at this."

It wouldn't have taken much to "kill" anyone in the room. The issues are big and important, but once past the shock of seeing Bill Gates in blue suit and red power tie sitting sunnily in the witness stand, there wasn't a lot to hold people's attention. Unlike that other "Bill" scandal, there was no finger waving, no pronouncement of innocence. And Gates' words mostly fell along the lines of the memorable: "There are legitimate ways of creating equivalent functionality."

On Tuesday, the judge almost ended the session an hour early when she thought (hoped?) it was 3:45 when it was actually 2:45.

Richard Epstein, a University of Chicago law professor, calls Gates's courtroom stint a waste of time. "Look, he feels he has to do something in a judicial setting to make up for his mistake in a judicial setting. But he should be doing what he does best and let the lawyers handle the anti-trust case."

Maybe. But Gates's Washington experience hasn't been a complete loss. He's found he can act like the common man even though he is extraordinarily wealthy. He's found a way to talk around questions so that short answers become very long and make the eyes glaze over. In short, he's found he has what it takes for politics.

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