Government claims Microsoft skews poll data in testimony

WASHINGTON -- The government accused Microsoft Thursday of offering bogus testimony at its antitrust trial that had been initially cooked up to make Chairman Bill Gates look good at a Senate hearing last year.

In one of the most dramatic moments of the 12-week trial, the government's lead counsel, David Boies, questioned Microsoft's sole outside expert witness over the company's controversial move to hardwire its Web-browsing software directly into its Windows operating system.

Windows users stood to benefit by that decision, argued Microsoft witness Richard Schmalansee, a Massachusetts Institute of Technology economics professor. In the written testimony he had filed with the court, Schmalansee cited a survey of independent software vendors as overwhelmingly agreeing with that view. The February 1998 poll he cited purportedly showed that 85 percent of the developers "predicted that Microsoft's integration of Internet functions into Windows would help their (own) company and 83 percent predicted it would help consumers." But Boies brought out under cross-examination that the poll had been the brainchild of Nathan Myhrvold, Microsoft's top technology guru, in launching a major publicity campaign that also included eliciting supportive comments from such industry figures as Michael Dell, the founder of Dell Computer. In an e-mail message to Gates and other key Microsoft executives, sent Feb. 15, 1998, Myhrvold wrote: "I think that it is crucial to make (sure) the statement we ask people about in the survey, or the statement we ask them to sign... is worded properly. "Saying `put the browser in the (Windows operating system)' is already a statement that is prejudicial to us. The name "browser" suggests a separate thing. I would NOT phrase the survey, or other things, only in terms of `put the browser in the OS.'" Instead, Myhrvold opted for "a more neutral question about how Internet technology needs to merge with local computing." The Microsoft executive noted that he had been "pretty successful in trying this on various journalists and industry people." The integration issue, a vital element in the browser wars between Microsoft and Netscape, lies at the heart of the charges lodged against the software giant by the Department of Justice and 19 states. The plaintiffs allege Microsoft buried its Internet Explorer browser deep within the Windows code and then gave it away for free in order, as one Netscape executive put it, "to cut off our air supply." The pro-Microsoft survey first surfaced March 3, 1998, when Gates testified at what proved to be a highly contentious hearing before the Senate Judiciary Committee. But a week before Gates' appearance, as the government brought out in another e-mail, the data had raised internal alarm bells at Microsoft. Both facts went unnoted in Schmalansee's 328-page brief. "We have some conflicting data from developers," Microsoft executive Ann Redmond warned. Referring to an earlier Department of Justice action against Microsoft, she cited another survey that showed that 44 percent of outside developers agreed with the government's position while 41 disagreed and 15 percent said they didn't know. "The survey cited by Professor Schmalansee is legitimate," Microsoft spokesman Mark Murray said outside the courtroom. "From a legal standpoint, this is just a red herring." The trial is due to resume on Tuesday with Schmalansee still on the stand.

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