1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3
4
5 UNITED STATES OF AMERICA, )
) No. CIV 98-1232(TPJ)
6 Plaintiff, )
) VOLUME II
7 vs. ) (Afternoon Session)
)
8 MICROSOFT CORPORATION, ) CONFIDENTIAL
)
9 Defendant. )
)
10
11
12 CONTINUATION OF THE DEPOSITION OF BILL
13 GATES, a witness herein, taken on behalf of the
14 plaintiffs at 12:35 p.m., Friday, August 28, 1998, at
15 One Microsoft Way, Redmond, Washington, before
16 Katherine Gale, CSR, pursuant to Subpoena.
17
18
19
20
21
22
23 REPORTED BY:
Katherine Gale
24 CSR No. 9793
Our File No. 1-49006 25
1 APPEARANCES OF COUNSEL:
2 FOR THE UNITED STATES OF AMERICA:
3 UNITED STATES DEPARTMENT OF JUSTICE
BY PHILLIP R. MALONE
4 KARMA M. GIULIANELLI
450 Golden Gate Avenue
5 Box 36046
San Francisco, California 94102
6 (415) 436-6660
7 BOIES & SCHILLER LLP
BY DAVID BOIES
8 80 Business Park Drive
Armonk, New York 10504-1710
9 (914) 273-9800
10 FOR MICROSOFT CORPORATION:
11 MICROSOFT CORPORATION
LAW AND CORPORATE AFFAIRS
12 BY DAVID A. HEINER
WILLIAM H. NEUKOM
13 One Microsoft Way
Redmond, Washington 98052
14 (425) 936-3103
15 SULLIVAN & CROMWELL
BY RICHARD J. UROWSKY
16 125 Broad Street
New York, New York 10004
17 (212) 558-3546
18
FOR THE PLAINTIFF STATES:
19
STATE OF NEW YORK
20 OFFICE OF ATTORNEY GENERAL
BY STEPHEN D. HOUCK
21 GAIL P. CLEARY
THEODORE ZANG
22 120 Broadway
New York, New York 10271-0332
23 (212) 416-8275
24 ALSO PRESENT: PRISCILLA ALVAREZ, Paralegal
25 MICHEL CARTER, Video Operator
BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 I N D E X
2
3 WITNESS EXAMINATION BY PAGE
4 Bill Gates Mr. Boies 391
5
6 GOVERNMENT
EXHIBITS:
7
372 E-mail dated 4/14/97 399
8
373 E-mail dated 7/1/97 404
9
374 E-mail dated 8/25/97 441
10
375 E-mail dated 10/12/97 469
11
376 E-mail dated 4/17/97 393
12
377 E-mail dated 6/12/97 453
13 with Attachment
"How to Get To 30%
14 Share In 12 Months"
15 378 E-mail dated 5/14/97 449
16 379 E-mail dated 6/18/97 496
17
18
19
20
21
22
23
24
25
BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 BILL GATES,
2 a witness herein, having been previously duly sworn,
3 was deposed and testified as follows:
4
5 THE VIDEOGRAPHER: The time is 12:35.
6 We're going back on the record. This is Tape 3 of
7 the videotaped deposition of Bill Gates on August 28.
8
9 EXAMINATION (Continued)
10 BY MR. BOIES:
11 Q In connection with Intuit, Mr. Gates,
12 insofar as you were aware, was there any effort to
13 get Intuit to agree that Intuit would not promote
14 Netscape's browser?
15 A I'm not aware of any -- anything
16 specifically related to promotion. As I said, I
17 didn't deal with them directly. You could say
18 that -- ask them not to support Netscape as their
19 standard supported browser. It's a change in their
20 promotion of Netscape.
21 Q Yes. I take that point. Let me make
22 the question a little more precise.
23 Other than an attempt to get Intuit to
24 make Internet Explorer into its default browser, did
25 Microsoft make any effort, that you're aware of, to
391 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 get Intuit not to support or advertise Netscape's
2 browser?
3 A It's kind of a strange question because
4 Intuit never would have specifically advertised
5 someone's browser. So I don't know what -- what do
6 you mean by promotion when you give that example?
7 Q Well, I'm really just asking for what
8 Microsoft did. And if you don't understand the
9 question, Mr. Gates, you can tell me and I will
10 rephrase the question.
11 A Isn't that what I just did?
12 Q Saying that you didn't understand the
13 question?
14 A Uh-huh.
15 Q Okay. Let me put another question to
16 you.
17 Did Microsoft, insofar as you are
18 aware, try to get Intuit to agree not to enter into
19 any kind of marketing or promotion agreements with
20 Netscape?
21 A I don't know.
22 Q Did you have discussions with anyone
23 concerning what Microsoft was trying to get from
24 Intuit?
25 A I might have sent e-mail about it at
392 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 some point.
2 Q Do you remember the content of that
3 e-mail?
4 A No.
5 Q Do you remember anything at all about
6 the content of that e-mail?
7 A Well, I don't know that it's an e-mail
8 either. I said I might have sent e-mail. It may
9 have been many e-mails. So no, I don't remember
10 anything beyond the fact that there may have been
11 e-mail about this, and I may have made my views about
12 the subject known.
13 Q Let me ask you to look at a document
14 that has been previously marked as Government Exhibit
15 376.
16 This purports to be an e-mail dated
17 April 17, 1997 from Brad Chase to you and some other
18 people which is forwarding on an e-mail of earlier in
19 the day on April 17 from Mr. Will Poole to Brad
20 Chase. The subject of both e-mails is Intuit Terms
21 Agreed.
22 (The document referred to was marked as
23 Government Exhibit 376 for identification and is
24 attached hereto.)
25 Q BY MR. BOIES: Do you see that?
393 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A Well, it's just a forward, yeah.
2 Q Do you recall receiving this e-mail?
3 A No.
4 Q Do you have any doubt that you received
5 a copy of this e-mail?
6 A No.
7 Q There are --
8 A I don't have any reason to doubt. I
9 don't know that I received the e-mail. I don't have
10 any reason to doubt it. But since I don't remember
11 it --
12 Q Did you ever see this e-mail before?
13 A I don't remember ever seeing it.
14 Q Under the heading "Intuit obligations"
15 it says, "Bundle IE3 (Quicken) and IE4 (other
16 products)."
17 Do you see that?
18 A Uh-huh.
19 Q Were you told in April 1997 that Intuit
20 had agreed to bundle IE3 and IE4 with its products?
21 A I don't remember that specifically.
22 Q Farther down on under "Intuit
23 obligations," there is an obligation that reads,
24 quote,
25 "Not enter into marketing or
394 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 promotion agreements with Other
2 Browser manufacturers for
3 distribution or promotion of Intuit
4 content."
5 Do you see that?
6 A Uh-huh.
7 Q Were you told in words or in substance
8 in or about April of 1997 that Intuit had agreed not
9 to enter into marketing or promotion agreements with
10 other browser manufacturers for distribution or
11 promotion of Intuit content?
12 A I don't remember being told that.
13 Q Do you have any reason to doubt that
14 you were told that?
15 A In the sense that one of the e-mails
16 that may have come into my mailbox might have related
17 to that, I don't -- I don't doubt it. Certainly
18 wasn't something that could have been very
19 significant to me because I don't have a recollection
20 of it.
21 Q The last Intuit obligation that is
22 listed here is, quote,
23 "Create 'differentiated
24 content' area for Intuit Channel that
25 is available only to IE users," close
395 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 quote.
2 Do you see that?
3 A Uh-huh.
4 Q Were you told in words or in substance
5 in or about April of 1997 that Intuit had agreed with
6 Microsoft that Intuit would create a differentiated
7 content area for Intuit's channel that would be
8 available only to IE users?
9 A I don't remember being told that nor do
10 I understand what it means.
11 Q Have you ever had any discussions with
12 anyone within Microsoft about the possibility of
13 content providers creating content area that would
14 only be available to IE users?
15 A I don't -- no. I don't understand
16 that. I mean, it -- if the URL was there, you can
17 get to it.
18 Q So what you're saying is that this
19 obligation that Intuit said to have taken on is an
20 obligation that you don't understand at all what it
21 means; is that what you're telling me?
22 A No. I'm saying these words that are on
23 this piece of paper, I don't understand what they
24 mean.
25 Q Do you understand the concept?
396 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A I don't know what it means.
2 Q Okay.
3 Did you ever ask Mr. Poole what it
4 meant?
5 A Nope.
6 Q Did you ever ask Mr. Chase what it
7 meant?
8 A No.
9 Q Did you ever ask anybody what it meant?
10 A Those words, no.
11 Q Or the concept that is described by
12 those words?
13 A I don't understand those words. So
14 it's hard for me to relate to the concept. I don't
15 understand the words.
16 Q Let me be sure that I understand what
17 you don't understand.
18 Are you telling me that you don't
19 understand what it would mean for Intuit to create a
20 differentiated content area?
21 A That's in quotes.
22 Q Yes. For the Intuit Channel that would
23 be available only to IE users?
24 A I'm not sure what they mean by that.
25 Q Do you have any idea what they mean by
397 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 that?
2 A No. It's confusing to me.
3 Q All right, sir.
4 When did Microsoft enter into an
5 agreement with Intuit to make IE Intuit's default
6 browser?
7 A I don't know the date of our agreement
8 with Intuit.
9 Q Do you know approximately?
10 A Well, before you showed me this e-mail,
11 I would have said, no. Looking in this e-mail it
12 suggests that it was sometime before April 17, 1997.
13 Q Just so you're not misled by the e-mail
14 the e-mail talks about when the terms are agreed, it
15 doesn't say that the agreement has yet been signed;
16 is that correct?
17 A I hadn't thought about that
18 distinction.
19 Q I think the first line you may want to
20 look at it where it says,
21 "We have agreed on all
22 salient terms in our term sheet and
23 are going to contract."
24 A Oh, you're right. You're right. I
25 guess I'd have to get a copy of it to know what date
398 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 it has. I think there was an agreement reached,
2 though.
3 Q Are you aware of any terms in that
4 agreement other than terms that are identified here?
5 A No.
6 Q Let me ask you to look at a document
7 that has been previously marked as Government Exhibit
8 372.
9 This is an e-mail to you from Ben
10 Slivka dated April 14, 1997. And the subject is,
11 quote, "Java review with you," close quote.
12 (The document referred to was marked as
13 Government Exhibit 372 for identification and is
14 attached hereto.)
15 Q BY MR. BOIES: Did you receive this
16 e-mail in or about April of 1997, Mr. Gates?
17 A I don't remember.
18 Q The e-mail begins that the author is
19 working with Paul Maritz to set up a two -- to
20 three-hour review for you on your Java efforts.
21 Do you see that?
22 A On our Java efforts.
23 Q On Microsoft's Java efforts?
24 A No. I think it's Ben Slivka's group.
25 Q And he is a Microsoft group; right?
399 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A Yes. He's part of Microsoft but not
2 all of Microsoft.
3 Q So you would interpret this that he is
4 working with Paul Maritz to set up a two- to
5 three-hour review for you of part of Microsoft's Java
6 efforts but not all of Microsoft's Java efforts; is
7 that what you're saying?
8 A Yeah. The work his group is doing.
9 Q The work his group is doing on Java;
10 right?
11 A Right.
12 Q Okay.
13 And he lists what he describes as some
14 pretty pointed questions that you, Mr. Gates, had
15 about Java.
16 Do you see that?
17 A Well, I'm not sure those are the
18 pointed questions. It says, "I want to make sure I
19 understand your issues/concerns."
20 Q Well, that's actually the last part of
21 a sentence that begins, quote:
22 "When I met with you last,
23 you had a lot of pretty pointed
24 questions about Java, so I want to
25 make sure I understand your
400 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 issues/concerns."
2 That's what the sentence says; correct,
3 sir?
4 A Right.
5 Q And when Mr. Slivka says "I met with
6 you last," he's talking about you, Mr. Gates; correct
7 sir?
8 A Yes.
9 Q And when he says, "You had a lot of
10 pretty pointed questions about Java," he's again
11 talking about you, Mr. Gates; correct?
12 A Right.
13 Q And then he lists what he refers to as
14 a start:
15 "1. What is our business
16 model for Java?
17 "2. How do we wrest control
18 of Java away from Sun?"
19 Do you see that?
20 A Uh-huh.
21 Q Sometime prior to April 14, 1997, had
22 you conveyed to Mr. Slivka that one of your pointed
23 questions about Java was, quote, "How do we wrest
24 control of Java away from Sun?"
25 A I don't think I would have put it that
401 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 way. Certainly was an issue about the popularity of
2 Sun's runtime APIs versus our runtime APIs.
3 Q Is it your testimony that you didn't
4 raise the question of "How do we wrest control of
5 Java away from Sun?" with Mr. Slivka?
6 A I'll say again, I doubt I used words
7 like that. But there certainly was an issue of the
8 popularity of our runtime APIs versus runtime APIs.
9 Q Just so that the record's clear. I'm
10 not asking you about whether there was a question
11 about the popularity of your runtime APIs or their
12 runtime APIs. What I'm asking is whether you told
13 him in words or in substance that you wanted to know
14 how Microsoft could wrest control or get control of
15 Java away from Sun.
16 MR. HEINER: Objection. Asked and
17 answered twice.
18 MR. BOIES: I think he said he didn't
19 remember using those words. What I now want to try
20 to find out is whether he used those words or
21 conveyed that substance.
22 MR. HEINER: And he doesn't remember
23 using those words.
24 MR. BOIES: And I'm asking him whether
25 he conveyed that in words or in substance.
402 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 MR. HEINER: He testified as to
2 substance.
3 MR. BOIES: I don't believe he did.
4 But I'm in any event putting the question to the
5 witness.
6 THE WITNESS: I don't remember anything
7 about "control" as a word or in substance. But there
8 was an issue about the popularity of our runtime APIs
9 versus Sun's runtime APIs.
10 Q BY MR. BOIES: I take it you know
11 Mr. Slivka?
12 A Uh-huh.
13 Q You've got to answer "yes" or "no"
14 audibly so the reporter can take it down.
15 A Yes.
16 Q And you believe him to be a person of
17 competence and integrity?
18 A Yes.
19 Q Do you have any reason to believe that
20 he would have misstated what you told him when you
21 met with him last before April 14, 1997?
22 MR. HEINER: Objection.
23 THE WITNESS: In no way does this
24 purport to be a restatement of things I said to Ben
25 Slivka.
403 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q BY MR. BOIES: Well, Mr. Gates, what
2 this memorandum says is, quote,
3 "When I met with you last,
4 you had a lot of pretty pointed
5 questions about Java, so I want to
6 make sure I understand your issues
7 and concerns."
8 "Here's a start, can you
9 please add any that I'm missing?"
10 And then he lists six, the second of
11 which is, "How do we wrest control of Java away from
12 Sun?"
13 You see that in the exhibit, do you
14 not, sir?
15 A Uh-huh, yes.
16 Q Let me ask you to look at a document
17 that has been previously marked as Government Exhibit
18 373. It's a one-page exhibit and the second item on
19 the page is a message from you to Paul Maritz dated
20 June 16, 1997, on the subject of, quote, "Java
21 schism," close quote.
22 (The document referred to was marked as
23 Government Exhibit 373 for identification and is
24 attached hereto.)
25 Q BY MR. BOIES: Did you send this
404 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 message, Mr. Gates?
2 A I don't remember it. But I don't have
3 any reason to doubt that I did.
4 Q What did you mean by, quote, "Java
5 schism," close quote?
6 A I think the e-mail speaks for itself.
7 Q The e-mail may very well speak for
8 itself. But what I want to know is --
9 A I could have written a mail that says,
10 "A point that is important
11 to me is to have PURE JAVA
12 applications that do a lot HAVE to
13 ship a full runtime instead of being
14 able to count on the runtime being
15 shipped with the operating system,"
16 and so on.
17 Q Maybe my question wasn't clear. What
18 I'm trying to get you to do is to tell me what you
19 meant by the term "Java schism."
20 A It's a heading for this piece of
21 e-mail. The e-mail is the communication, not the
22 heading.
23 Q I understand that, sir. But what I'm
24 asking is: You chose the heading, did you not, sir?
25 A It appears I typed that.
405 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Right. And why did you choose this
2 heading for this memo? What were you meaning to
3 convey by the term "Java schism"?
4 A Exactly what I put into the message.
5 Q Well, sir, what did you mean by
6 "schism"?
7 A It explains that in the message.
8 Q I'm asking you to explain it in your
9 words what you mean by the word "schism."
10 A I'm drawing a distinction between pure
11 Java apps and where they get their runtime bits.
12 Q And is that the schism that you're
13 referring to?
14 A That's what this e-mail is about, and
15 that's -- and I titled it "Java schism" when I wrote
16 that e-mail. And the question is: "How do pure Java
17 applications get their runtime bits?"
18 Q Could you read that answer back,
19 please?
20 (Answer read.)
21 Q BY MR. BOIES: What is on the two sides
22 of the schism, Mr. --
23 A The bits you get from the browser, the
24 bits you get elsewhere. And the mail couldn't be
25 clearer. It's asking about two sources of the bits.
406 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 You can get bits from the browser, you can get bits
2 somewhere else.
3 Q Okay.
4 Now, where else can you get the bits?
5 A They can ship with the application.
6 Q And why was it important to you to have
7 pure Java applications that have the characteristics
8 that you described in here?
9 A I didn't want to have to have the
10 browser get so large that it would have all the
11 runtime bits for all the applications.
12 Q And so where would the bits be?
13 A With the application.
14 Q And what you're saying is that it's
15 important to you that Microsoft develop pure Java
16 applications that have a lot of bits in them so that
17 those bits don't have to be in the browser. Is that
18 the case?
19 A No. It doesn't say anything about
20 Microsoft developing pure Java applications.
21 Q You're right, it doesn't.
22 A And it's clearly not about that.
23 Q What is it about then, sir?
24 A It's about pure Java applications in
25 general.
407 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Did you believe that it was desirable
2 to have as many pure Java applications as possible?
3 A It has nothing to do with this e-mail.
4 The answer is no. But if you think it has something
5 to do with this e-mail, you're -- that's incorrect.
6 Q Okay. I think that it may or may not
7 be productive for you to speculate as to what I
8 think. What I am trying to do is I'm trying to get
9 your testimony about this e-mail and about your views
10 of Java more generally.
11 A I thought so.
12 Q And first let me ask a general
13 question, and that is: Did you believe that from
14 Microsoft's standpoint it was desirable to have as
15 many pure Java applications as possible?
16 A We weren't focused on that as a goal,
17 no.
18 Q In fact, is it fair to say that you
19 preferred fewer pure Java applications to more pure
20 Java applications?
21 A We preferred more applications that
22 took advantage of our APIs, and so we worked with
23 ISVs to maximize the number that took advantage of
24 our APIs.
25 Q And your APIs were not pure Java APIs;
408 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 correct?
2 A No. Some were, and some weren't.
3 Q Yes, sir, some were, and some weren't.
4 But the APIs that you wanted people to
5 use were APIs that were not pure Java APIs; correct,
6 sir?
7 A No. We were glad to have people use
8 both.
9 Q Were you indifferent as to whether they
10 used your pure Java APIs or your proprietary APIs?
11 MR. HEINER: Objection.
12 THE WITNESS: You've introduced the
13 word proprietary, and that completely changes the
14 question. So help me out, what do you want to know?
15 Q BY MR. BOIES: Is the term "proprietary
16 API" a term that you're familiar with, sir?
17 A I don't know what you mean by it.
18 Q Is it a term you're familiar with in
19 your business?
20 A I really don't know what you mean. You
21 mean an API that you have a patent on?
22 Q Mr. Gates, is the term "proprietary
23 API" a term that is commonly used in your business?
24 A Let me give you --
25 Q All I'm trying to do --
409 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A -- the common meanings that those words
2 could have. And then you can pick one of them, and
3 ask me a question about it.
4 Q No. All I need --
5 A Just -- you want me to define
6 "proprietary API" or not?
7 Q No, I don't want you to define
8 "proprietary API." I didn't ask you to define
9 proprietary API. I asked you a simple question
10 whether the term "proprietary API" was commonly used
11 in your business.
12 Now, I'm prepared to sit here as long
13 as you want to to answer questions that I haven't
14 asked. But I have a certain number of questions that
15 I'm going to ask at the end of these other answers.
16 Now, this is a simple question. You can say "yes,"
17 "no," or "It is used in lots of different ways." But
18 then I can choose what to follow up on. Or you can
19 simply make whatever statements you want, and I'll go
20 back to my question afterwards.
21 MR. HEINER: The witness is simply
22 trying to help you through a difficult subject
23 matter. That's all that's happening. It's not
24 offensive.
25 MR. BOIES: It is not offensive. But
410 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 all I am saying is with due respect, this witness's
2 efforts do not help me clarify difficult subjects.
3 MR. HEINER: They could help. But go
4 ahead and read the question one more time, or state
5 it again and he can answer it.
6 MR. BOIES: Okay.
7 Q Is the term "proprietary API" a term
8 that is commonly used in your business?
9 A I don't know how common it is. It has
10 many different meanings.
11 Q Is it a term that you have used in your
12 business?
13 A Sometimes.
14 Q Okay. Now, is it fair to say that when
15 you use the term "proprietary APIs" sometimes you
16 mean one thing and sometimes you mean something else?
17 A That's right.
18 Q Would you give me the different
19 meanings that you sometimes ascribe to the term
20 "proprietary APIs" when you use that term?
21 A It can mean an API that only happens to
22 be available from one company. It can mean an API
23 that for some reason related to intellectual property
24 can only be available from one company, and, of
25 course, that's never a black and white thing. It can
411 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 mean an API that somebody's chosen not to take to a
2 standards body. Those are three different things you
3 might mean by it.
4 Q I just want to be sure that the answer
5 is clear.
6 I'm not asking what I might mean by it
7 or what a person might mean by it. What I'm trying
8 to do is get you to tell me meanings that you ascribe
9 to that term when you use it.
10 A I've used all three of those.
11 Q Okay.
12 Are there other meanings that you have
13 ascribed to the term "proprietary API" in your use of
14 that term?
15 A Not that I can think of right now.
16 Q Okay.
17 Now, with respect to the API in
18 Windows, there are both Java APIs and non-Java APIs;
19 is that fair?
20 A I hate to tell you this, but what you
21 mean by "Java" there is subject to massive ambiguity.
22 Q Let me try to put the question this
23 way: In Windows there are pure Java APIs, there are
24 impure Java APIs, and there are APIs that have
25 nothing to do with Java; is that fair?
412 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 MR. HEINER: Objection. I guess at
2 this point I'll have to say that if we're going to
3 talk about pure Java APIs, you'll have to take the
4 time to go down that path as well, which I know
5 you're happy to do of defining what that term means.
6 MR. BOIES: I mean what the witness
7 meant when he wrote this e-mail on June 16, 1997.
8 MR. HEINER: Fine.
9 THE WITNESS: I don't see anything
10 about APIs.
11 Q BY MR. BOIES: Do you see "PURE
12 JAVA" --
13 A Yeah. But I don't see APIs.
14 Q -- in capital letters?
15 And I can spend as much time as we have
16 to on this. I think it shouldn't be necessary, but
17 if we have to, we will.
18 MR. HEINER: Mr. Boies, the difficulty
19 is -- I don't mean to be at all rude, but it's
20 partly -- you know, it's partly the complexity of the
21 subject matter and the difficulty you're having in
22 posing these questions. Java is a complex subject.
23 MR. BOIES: Java is a complex subject.
24 But when somebody talks about pure Java APIs, I don't
25 think that that is something that the witness can't
413 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 answer.
2 THE WITNESS: But you said that the
3 e-mail talks about pure Java API. And it doesn't.
4 MR. BOIES: No. I said pure Java.
5 THE WITNESS: No. You said APIs.
6 Q BY MR. BOIES: Mr. Gates, let me ask a
7 question. If you can't answer the question, you
8 can't answer the question.
9 Does Windows include pure Java APIs?
10 A There's a -- in some versions of
11 Windows there are some Java runtime APIs which at one
12 time Sun labeled as pure Java APIs.
13 Subsequently they changed in a way that
14 was not upwards compatible, so it's actually kind of
15 confusing.
16 Q Does Windows have any APIs that you
17 would consider to be pure Java APIs?
18 A Today?
19 Q Yes.
20 A Yeah. I guess the AWT 1.1 stuff you
21 might think of that way.
22 Q Anything else?
23 A I don't know what you mean "anything
24 else." Are we enumerating?
25 Q Any other API in Windows that you would
414 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 consider to be pure Java APIs, Mr. Gates?
2 A I know there's more. I don't know the
3 technical names for them.
4 Q And does Microsoft have a version of
5 Java that is not what you refer to in your memo as
6 pure Java?
7 A I have no idea what you mean by that
8 question.
9 Q Okay.
10 Does Windows include APIs that are
11 written in what is described as a form or version of
12 Java but not pure Java?
13 A Are you talking about the language?
14 Q If you don't understand the question,
15 Mr. Gates, you can simply say you don't understand
16 the question.
17 A Okay. I'm sorry. I don't understand
18 the question.
19 Q Good. Okay. That's what I'm trying to
20 do. What I'm trying to do is get on the record what
21 you say you understand and what you say you don't
22 understand.
23 MR. HEINER: Any time that the witness
24 clearly indicates he doesn't understand the question
25 but doesn't preface it with the words "I don't
415 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 understand the question." If you want that
2 convention --
3 MR. BOIES: I do, because I don't want
4 speeches as to what the witness does think if he
5 simply doesn't understand the question.
6 THE WITNESS: No. But I was pointing
7 out to you the part of the question that I didn't
8 understand because it was ambiguous.
9 MR. BOIES: Would you read the answer
10 back, please, or the statement.
11 (The following answer was read:
12 "A Are you talking about the language?")
13 MR. BOIES: No. I'm not talking about
14 the language if by "the language," you mean all the
15 things that you said about the Java language when we
16 were talking about Java yesterday. Now, let me go
17 back to me asking the questions, if I can.
18 Q As part of an effort to take control of
19 Java away from Sun in the terms used by Mr. Slivka in
20 his memo with Mr. Gates -- to you dated April 14,
21 1997, did Microsoft make an effort to get people to
22 use a version of Java APIs that was not pure Java
23 APIs?
24 MR. HEINER: Objection.
25 THE WITNESS: That's a very compound --
416 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 I don't understand the question.
2 Q BY MR. BOIES: Okay.
3 In an attempt to, in Mr. Slivka's
4 words, wrest control of Java away from Sun, did
5 Microsoft make an effort to get programmers to write
6 to APIs that could be used to run applications on
7 Windows but not on all other operating systems to
8 which a pure Java written program could be run?
9 A I wouldn't say that was part of
10 anything to do with controlling Java. But we do
11 promote the use of the unique Windows APIs.
12 Q And with respect to the unique Windows
13 APIs, are some of those APIs APIs that Microsoft
14 describes as Java APIs or has in the past?
15 A All of our APIs can be called from
16 Java. So now I don't know what you mean by a Java
17 API. Usually somebody would mean something that you
18 can only call from Java or something you can call
19 from Java whether you can call it from other
20 languages or not.
21 Our APIs we make available to a broad
22 set of languages including Java but others as well.
23 Q Mr. Gates, you've been sued by Sun
24 Microsystems over Java, have you not?
25 A There's a lawsuit with Sun.
417 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Well, there's a lawsuit with Sun, and
2 it's a lawsuit with Sun relating to the use of Java;
3 right?
4 A It relates to a very specific contract
5 that we have with Sun.
6 Q And does that very specific contract
7 with Sun relate to Java?
8 A It's a license to various Sun
9 technologies related to Java.
10 Q Now, you're familiar with that lawsuit,
11 are you not, sir?
12 A Not very.
13 Q Not very?
14 Do you know what the contentions in
15 that lawsuit are?
16 A No.
17 Q Never tried to find out? Is that your
18 testimony?
19 A I haven't read the complaint, if that's
20 your question.
21 Q That's not my question.
22 My question is whether you've ever
23 tried to find out the substance of the allegations
24 about Java that Sun is making in its lawsuit against
25 Microsoft.
418 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A My understanding of their allegations
2 is very limited.
3 Q What is your understanding of their
4 allegations?
5 A I haven't read the contract between
6 Microsoft and Sun.
7 Q I'm asking you about the allegations in
8 the complaint, not whether you've read the contract.
9 I'm asking you for your understanding, which I know
10 you've already said is very limited. But I'm asking
11 for your understanding of what allegations Sun makes
12 in its claim against Microsoft.
13 A I think there's some dispute about they
14 were supposed to make the test cases public and
15 upwards compatible, and they didn't make them public,
16 and they weren't upwards compatible. And that
17 relates to the contract that I haven't read.
18 Q And that's what you think they allege
19 in the complaint?
20 A Well, that -- those are certain things
21 that they were required to do, I believe.
22 Q My question is not about what you
23 believe they were required to do, Mr. Gates. My
24 question is: What is your understanding about the
25 complaint that they make about what you did, about
419 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 what Microsoft did?
2 Do you understand the question?
3 A You're asking me to summarize their
4 lawsuit?
5 Q I'm asking you to tell me what you know
6 about the claims they make in that lawsuit. You said
7 you know something about it, but it's very limited.
8 All I'm trying to do is get you to tell me what it is
9 you know about the claims they make in their lawsuit.
10 A I think they want us to ship JNI.
11 Q Is that all you know about their
12 claims?
13 A I think there was something about a
14 trademark.
15 Q What about the trademark?
16 A Whether we could use the trademark.
17 I'm not sure.
18 Q Don't you know, Mr. Gates, one of the
19 allegations that they make is that you're taking
20 their trademark and applying it to things that it
21 shouldn't be applied to?
22 A Yeah. I think there's a trademark
23 issue. I'm not sure what they're saying about the
24 trademark.
25 Q Do you know anything that they're
420 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 saying about the trademark according to your present
2 testimony?
3 A I know there's a dispute about the
4 trademark.
5 Q Well, don't you know that one of the
6 things they're alleging is that Microsoft is taking
7 their trademark and applying it to things that
8 shouldn't be applied to according to them?
9 A I'm not sure that's right.
10 Q You're not sure?
11 A Because I don't think we used their
12 trademark, I'm not sure. I'm kind of confused about
13 that. I've never seen us using their trademark, so
14 I'm a little confused about how that relates to any
15 dispute with Sun.
16 Q Did you ever try to find that out?
17 A What?
18 Q What the claims were more than your
19 present knowledge.
20 A I read something that was on our web
21 site about four days ago.
22 Q About the Sun lawsuit?
23 A Yeah. Bob Muglia had some statements.
24 Q Other than that, did you ever try to
25 find out what Microsoft is being charged with, what
421 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 they're alleged to have done wrong?
2 A I've had discussions with Maritz
3 saying: Do I need to learn about this lawsuit? Do I
4 need to spend a lot of time on it?
5 Q What did he say?
6 A He said, no, he's focused on that and I
7 can focus on other things.
8 Q Is one of the things that you're
9 focused on trying, in Mr. Slivka's words, to wrest
10 control or get control, if wrest is a word that you
11 don't like, of Java away from Sun?
12 A No.
13 Q How did you think Microsoft could get
14 control of Java away from Sun?
15 MR. HEINER: Objection.
16 THE WITNESS: I honestly don't know
17 what you mean by "control of Java." I know those
18 words are in that e-mail from Mr. Slivka. But when
19 you're asking me the question, I don't know what you
20 mean "control of Java."
21 Q BY MR. BOIES: Is it your testimony,
22 Mr. Gates, that as you sit here today under oath you
23 have no idea what Mr. Slivka meant when he said that
24 one of the pointed questions that you had raised with
25 him was how to get control of Java away from Sun?
422 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A I told you, I think it related to our
2 attempt to make our runtime APIs the most popular
3 runtime APIs.
4 Q And not the Java APIs from Sun; is that
5 what you're saying?
6 A Well, let's not label the APIs, not the
7 unique ones that Sun was promoting.
8 Q When you say the unique ones that Sun
9 was promoting, what were the unique ones that Sun was
10 promoting called?
11 A I'm not sure what they're called. I
12 think AWT 1.2 maybe or JDK 1.2.
13 Q And is it your best testimony that
14 that's what you think this would have meant back in
15 April of 1997, sir?
16 A That what meant?
17 Q Getting control of Java away from Sun.
18 The thing we've been talking about here.
19 A Is that the same as "wrest control"?
20 You keep reading me these words from the e-mail.
21 Q Well, I'm trying to get away from the
22 word "rest" because you say you don't remember that
23 exact word. So I'm trying to use a word that's more
24 neutral like get or obtain control.
25 A And I've told you, I can't understand
423 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 what's meant by "control" there. I know that we're
2 trying to make our APIs popular with developers.
3 Q How does making your APIs popular with
4 developers relate to obtaining control of Java, if at
5 all?
6 A I don't know what it means to control
7 Java. How can somebody control Java? What does that
8 mean?
9 Q Is it your testimony that you have no
10 idea what that means?
11 A To control Java? I don't think anyone
12 can control Java. It's like saying controlling Basic
13 or COBOL.
14 Q Do you really mean that, sir?
15 A Yes.
16 Q And I'm going to press this just
17 another 30 seconds and then I will stop. But I
18 really do want to be sure that I have given you a
19 full and fair opportunity.
20 Is it your testimony that as you sit
21 here today under oath that you have no idea what is
22 meant by control of Java as used in this e-mail to
23 you by Mr. Slivka?
24 A I've said several times I think he must
25 be referring to our effort to make our APIs the most
424 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 popular APIs. But that wouldn't give us control of
2 Java. So I'm having a hard time relating it to these
3 specific words.
4 Q Well, without relating it to the
5 specific words, how would getting people to use your
6 APIs get control of Java? Why do you relate those
7 two in your mind?
8 A Because he probably means the Java
9 runtime, not Java.
10 Q Let's say he means the Java runtime.
11 A Then he's talking about the competition
12 of APIs.
13 Q Is it fair to say, Mr. Gates, that you
14 interpret this as how does Microsoft get, obtain,
15 control of Java runtime? Is that what you're saying?
16 A I think that's the most likely
17 explanation of what he meant. I still don't
18 understand the word "control" there because it's not
19 the word I'd use.
20 Q Well, according to Mr. Slivka it is the
21 word you used, is it not, sir?
22 MR. HEINER: Objection.
23 THE WITNESS: We've already been
24 through that.
25 Q BY MR. BOIES: But looking at this
425 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 doesn't refresh your recollection about having used
2 that word?
3 A It does not.
4 Q Have you ever said in words or in
5 substance to anyone that you wanted to obtain control
6 over Java or under -- over Java runtimes?
7 A I don't remember using those words.
8 Q Do you remember conveying that concept
9 or conveying that substance?
10 A If by "that concept" you mean conveying
11 the idea that we wanted our runtime APIs to be the
12 most popular, then the answer is yes.
13 Q Why did you want your runtime APIs to
14 be the most popular?
15 A By having our runtime APIs be the most
16 popular it means that people are more likely to
17 license Windows because there's applications that
18 take advantage of the unique innovations that are in
19 the Windows product.
20 Q Why does the fact that their
21 applications that take advantage of the unique APIs
22 that are in the Windows product make people more
23 likely to license Windows?
24 A Because it shows off the unique
25 innovations of Windows.
426 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q How does it show off the unique
2 innovations of Windows?
3 A Well, let's say, for example, they call
4 our tasking APIs, then it shows off the unique way
5 that we've done tasking. Let's say they call our
6 clipboard APIs, then it shows off the advances we've
7 made in data exchange which are very advanced.
8 Q Is it your testimony that trying to get
9 applications writers to write to Windows' own APIs
10 was something that you were trying to do only for the
11 reason that you've identified?
12 MR. HEINER: May I have that read back,
13 please?
14 (Question read.)
15 THE WITNESS: I think there's
16 additional reasons as well.
17 Q BY MR. BOIES: Isn't it a fact,
18 Mr. Gates, that one of the reasons that you were
19 trying -- that Microsoft was trying to get control
20 over the Java runtimes or Java, as it's described in
21 Mr. Slivka's memorandum, was to prevent Java or Java
22 runtimes from supporting competition with Windows?
23 MR. HEINER: Objection.
24 THE WITNESS: I don't know what you
25 mean by "control." That means I don't understand the
427 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 question.
2 Q BY MR. BOIES: Okay.
3 Did you ever participate in any
4 discussions within Microsoft as to the extent of
5 which Java or Java runtimes posed a threat to
6 Microsoft's position with respect to the Windows
7 platform?
8 A Yeah. I've already told you that there
9 came a point where we viewed Sun's unique Java
10 runtime APIs as a -- as a part of the competitive
11 environment, a competitor.
12 Q Okay.
13 Now, why were the Java APIs from Sun a
14 competitor?
15 A Well, if people just used the least
16 common denominator APIs, then they don't show off the
17 innovations that we're doing in Windows, and it makes
18 it less attractive to people to license Windows or
19 update Windows.
20 Q Now, what I'm trying to do -- and you
21 may think you've answered this question, but I don't
22 think the record makes it clear in any event.
23 What I'm trying to do is distinguish
24 between that reason which you've given me a couple
25 times and any other reason that may exist.
428 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Do you understand what I'm asking?
2 A No.
3 Q Okay. Let me try it again.
4 Isn't it true, Mr. Gates, that in
5 addition to whatever desire you may have had to show
6 off your Windows capabilities that you say you had,
7 that one of the things that was going on here was
8 your trying, Microsoft's trying, to prevent Java from
9 getting wide enough distribution so that it could
10 support applications programming for platforms other
11 than Windows?
12 A No.
13 Q Not at all, sir?
14 A There's no limitation of distribution.
15 Q Didn't ask whether there was any
16 limitation of distribution. I asked you whether in
17 any way the desire to prevent Java from developing
18 applications that could be used on platforms other
19 than Windows motivated what Microsoft was doing in
20 connection with Java.
21 MR. HEINER: Objection. That's a
22 distinctly different question.
23 THE WITNESS: What does it mean Java
24 developing applications?
25 Q BY MR. BOIES: I actually didn't recall
429 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 that I used that phrase.
2 THE WITNESS: Can you read me the
3 question?
4 (The following question was read:
5 "Q I asked you whether in
6 any way the desire to prevent Java
7 from developing applications that
8 could be used on platforms other than
9 Windows motivated what Microsoft was
10 doing in connection with Java.")
11 MR. BOIES: Can you answer that
12 question, Mr. Gates. If you can't, I'll rephrase it.
13 But if you can answer, I'd like an answer.
14 THE WITNESS: I don't know what you
15 mean "Java developing applications."
16 Q BY MR. BOIES: Isn't it a fact,
17 Mr. Gates, that in addition to whatever other reasons
18 you say you had for what you did with Java and
19 Windows APIs, part of what you were trying to do was
20 to prevent Java from having a wide enough
21 distribution so that it could support programs that
22 could be used on platforms other than Windows?
23 A We had no way of preventing Java from
24 being used on other platforms. It is used on other
25 platforms.
430 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q That wasn't my question, sir. My
2 question is whether or not part of what you and
3 Microsoft was trying to do was to limit the
4 distribution of Java sufficiently so that you could
5 thereby limit or reduce the extent to which
6 applications were written that could be used on
7 platforms other than Windows.
8 A No. In fact, we sell the most popular
9 Java tools in the market.
10 Q It is your testimony, then, sitting
11 here, that Microsoft was not at all motivated by a
12 desire to limit the extent to which Java could be
13 used to develop applications programming that could
14 be used on platforms other than Microsoft's Windows?
15 Is that your testimony?
16 A Yes.
17 Q All right, sir.
18 Was your concern over Netscape's
19 browser at all related to the fact that Netscape's
20 browser was viewed within Microsoft as a method of
21 distributing Java?
22 MR. HEINER: Objection. At the risk of
23 belaboring the record.
24 Would you care to state the question
25 more precisely and perhaps develop a better record?
431 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Or do you want to stick with the question you have?
2 MR. BOIES: If the witness tells me he
3 can't understand that question, that's an answer. If
4 he can understand the question, I'd like to have an
5 answer.
6 MR. HEINER: In addition to that
7 there's an objection based on that, so that's a
8 second consideration.
9 THE WITNESS: Well, you have to read
10 the question again. Sorry.
11 (The following question was read:
12 "Q Was your concern over
13 Netscape's browser at all related to
14 the fact that Netscape's browser was
15 viewed within Microsoft as a method
16 of distributing Java?")
17 MR. HEINER: Another objection.
18 Foundation.
19 MR. BOIES: Okay. I think the
20 foundation objection may be well-taken. Let me ask
21 the foundation question.
22 Q Did Microsoft believe that Netscape's
23 browser was a means of distributing Java APIs?
24 A Well, Netscape had some APIs in its
25 browser. I'm not sure if you would refer to them as
432 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Java APIs or not.
2 Q It's not a question whether I would
3 refer to them that way or not, Mr. Gates. What I'm
4 asking you is what you and Microsoft believe.
5 And my question is: Did you and others
6 at Microsoft believe that Netscape's browser was a
7 method for distributing Java APIs?
8 A There were APIs in the Netscape
9 browser. I don't think they were strictly Java APIs
10 or even in a direct sense specifically.
11 Q Have you completed your answer, sir?
12 A Uh-huh.
13 MR. BOIES: Can I have the question
14 read back again?
15 (The following question was read:
16 "Q It's not a question
17 whether I would refer to them that
18 way or not, Mr. Gates. What I'm
19 asking you is what you and Microsoft
20 believe.
21 "And my question is: Did
22 you and others at Microsoft believe
23 that Netscape's browser was a method
24 for distributing Java APIs?")
25 Q BY MR. BOIES: Can you tell me that,
433 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 sir?
2 A There were APIs in Netscape browser
3 some of which under some definition of Java APIs
4 you'd call Java APIs.
5 Q And was there concern within Microsoft
6 that the distribution of these things that you say
7 could be called Java APIs would adversely affect
8 Microsoft?
9 A Our concern is always to get people to
10 develop Windows applications. And to the degree that
11 there's other APIs people to develop to, there's some
12 competition for the attention of developers and
13 focusing on those APIs. But that doesn't relate to
14 distribution.
15 MR. BOIES: Can I have my question read
16 back again, please?
17 (The following question was read:
18 "Q And was there concern
19 within Microsoft that the
20 distribution of these things that you
21 say could be called Java APIs would
22 adversely affect Microsoft?")
23 Q BY MR. BOIES: Could I have an answer
24 to that question, please, sir?
25 A No, not the distribution.
434 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Let me ask you to look at a document
2 that has been previously marked as Government Exhibit
3 349. The first message in this exhibit is an e-mail
4 from Paul Maritz to you and a number of other people
5 dated July 14, 1997; correct, sir?
6 A That's what it appears to be, yes.
7 Q Did you receive this e-mail, sir?
8 A I don't remember it. But I don't have
9 any reason to doubt that I did.
10 Q Mr. Maritz writes to you in the third
11 sentence, quote,
12 "If we look further at
13 Java/JFC being our major threat, then
14 Netscape is the major distribution
15 vehicle."
16 Do you see that, sir?
17 A Uh-huh.
18 Q Do you recall Mr. Maritz telling you in
19 words or in substance that Netscape was the major
20 distribution vehicle for the Java/JFC threat to
21 Microsoft?
22 A No.
23 Q Did you believe in July of 1997 that
24 Java/JFC was a major threat to Microsoft as
25 Mr. Maritz writes here?
435 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A It was a significant issue for his
2 group in terms of how ISVs would choose to focus
3 their development in the future.
4 Q Did you believe in July of 1997 that
5 Java/JFC was a major threat to Microsoft?
6 A In the form that it existed as of that
7 day, maybe not. But if we looked at how it might be
8 evolved in the future, we did think of it as
9 something that competed with us for the attention of
10 ISVs in terms of whether or not they would take
11 advantage of the advanced features of Windows.
12 Q Do you have any understanding as to
13 what Mr. Maritz meant when he wrote to you about
14 Java/JFC being a major threat to Microsoft?
15 A Yeah. I just answered that.
16 Q What did you understand Mr. Maritz to
17 mean when he says Java/JFC was Microsoft's major
18 threat?
19 A I just answered that.
20 Q You'll have to give me an answer,
21 Mr. Gates, because if you did answer it, it's not an
22 answer that I can understand how it applies to the
23 particular question I'm asking.
24 A I said we looked at how the various
25 runtime APIs which was always confusing, you know,
436 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 where they were going or what they were doing. And
2 "JFC" is just a term for some of those, how they
3 might evolve in a way that would take away the focus
4 of developers in terms of writing applications that
5 would take unique advantage of Windows features.
6 Q I understand that you say that that was
7 an issue for you. Why was that a major threat to
8 Microsoft, if you have any understanding?
9 A Well, if people stopped writing
10 applications that took advantage of Windows runtime
11 APIs, that would mean that users wouldn't have access
12 to the innovative features that we were putting into
13 Windows.
14 Q Why was that a major threat to
15 Microsoft?
16 A If ISVs weren't writing applications to
17 take unique advantage of Windows, then it wouldn't
18 show off the Windows innovation and so users wouldn't
19 have much reason to update Windows or to license any
20 new versions of Windows.
21 Q You referred to JFC in a couple answers
22 ago and, of course, that's here in the memo. What
23 does "JFC" stand for as you understand it?
24 A I was always a little confused about
25 that, and it changed over time. It stands for Java
437 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Foundation Classes.
2 Q Mr. Maritz writes here that Netscape is
3 the major distribution vehicle for Java and Java
4 Foundation Classes.
5 Do you see that?
6 A That's at the end of that sentence?
7 Q Yes.
8 A Uh-huh.
9 Q Do you see that?
10 A Yes.
11 Q Now, in a prior answer you said you
12 didn't understand how the browser was a distribution
13 vehicle. Does this refresh your recollection that at
14 least within Microsoft in July of 1997 Netscape was
15 viewed as the major distribution vehicle for Java?
16 A Not for Java. And in my view, the
17 browser wasn't a key distribution channel. Maritz
18 may or may not have agreed with that. But you can
19 always ship the runtime with the applications.
20 Q Mr. Maritz here says, "Netscape is the
21 major distribution vehicle."
22 Now, it's clear to you, is it not, sir,
23 that he means the major distribution vehicle for Java
24 and Java Foundation Classes?
25 A He doesn't mean for Java.
438 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Well, sir, he says --
2 A I told you many times about the use of
3 the word "Java." And I'm not sure you heard me.
4 When people use the word "Java," they don't mean just
5 Java.
6 Q So when Mr. Maritz here used the word
7 "Java," in this e-mail that you say you don't recall
8 receiving, you're telling me that he meant something
9 other than just Java?
10 A He -- I bet he meant some runtime APIs,
11 not Java.
12 Q Okay.
13 Let's assume that you're right, let's
14 assume that when he talks about Java he means Java
15 runtime APIs. Would you then agree that what he is
16 saying here is that Netscape is the major
17 distribution vehicle for Java runtime APIs and Java
18 Foundation Classes?
19 A That appears to be what he's saying in
20 this e-mail.
21 Q And what was Mr. Maritz's position in
22 July of 1997?
23 MR. HEINER: Asked and answered too
24 many times.
25 THE WITNESS: Yeah. I've answered this
439 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 three times.
2 MR. BOIES: I'm not sure you did as to
3 this particular point in time. And one of the things
4 that you have told me is that the titles changed.
5 And so one of the things I want to be sure the record
6 is clear on is what Mr. Maritz's position was as of
7 the time of this key document.
8 MR. HEINER: You can cut and paste the
9 transcript any way you want in your briefs and in
10 your opening and closing argument. The witness has
11 testified as to his title many times.
12 Q BY MR. BOIES: Mr. Gates, what was
13 Mr. Maritz's title on July 14, 1997?
14 A I think group vice president.
15 Q What was he group vice president of?
16 A I don't know what the title would have
17 said after that. But he managed the group that
18 contained all of our Windows activities.
19 Q Was he group vice president for
20 Platforms?
21 A I'm not sure. I'm sure if it contained
22 the word "Platforms," it didn't just say Platforms,
23 because he's got Office and some other things also.
24 Q But within his responsibilities would
25 have been Windows?
440 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A That's right.
2 Q Let me ask you to look at a document
3 that has been marked as Government Exhibit 374. This
4 is an e-mail to you from Tod Nielsen dated August 25,
5 1997, with copies to Brad Chase.
6 (The document referred to was marked as
7 Government Exhibit 374 for identification and is
8 attached hereto.)
9 Q BY MR. BOIES: Did you receive this
10 e-mail, sir?
11 A I don't remember receiving it. But I
12 don't have any reason to doubt that I did.
13 Q Let me ask you to look at the seventh
14 paragraph down. That's the third paragraph from the
15 bottom, the last sentence. That says, quote,
16 "So, we are just proactively
17 trying to put obstacles in Sun's path
18 and get anyone that wants to write in
19 Java to use J/Direct and target
20 Windows directly," close quote.
21 Do you see that, sir?
22 A Uh-huh.
23 Q Do you recall being told in or about
24 August of 1997 that Microsoft was trying to put
25 obstacles in Sun's path and get anyone that wants to
441 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 write in Java to use J/Direct and target Windows
2 directly?
3 A No.
4 Q Do you know why Microsoft was trying to
5 put, quote, "obstacles in Sun's path," close quote?
6 A I don't know what that means.
7 Q Do you know why Microsoft was trying to
8 get anyone that wants to write in Java to use
9 J/Direct?
10 A Yes.
11 Q Why was that?
12 A Because J/Direct allows you to make
13 calls that show off unique innovations in Windows and
14 make -- therefore, make Windows more attractive.
15 Q Was there any reason other than that
16 that Microsoft wanted to get anyone that wants to
17 write in Java to use J/Direct?
18 A Yes.
19 Q What?
20 A Well, there's a benefit to us if people
21 are showing off Windows, and it increases Windows
22 popularity. That helps us with the other
23 applications we write for Windows as well including
24 Microsoft Office.
25 Q How is that so?
442 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A Because Microsoft Office is targeted to
2 Windows, we get a benefit that goes even beyond
3 increased sales of Windows if we manage to popularize
4 Windows.
5 Q Why is that?
6 A Because they can buy Office.
7 Q They can buy Office and use it on the
8 Mac, too, can't they, since you didn't cancel Mac
9 Office?
10 A We have a much wider set of
11 applications available for the Windows platform than
12 any other platform. And we have more frequent
13 updates of products like Office on the Windows
14 platform. It's a more powerful version, the Windows
15 version, and it -- therefore, our revenue per unit is
16 somewhat higher.
17 Q You mean the version of Office for
18 Windows is more powerful than the version of Office
19 for Mac? Is that what you're saying?
20 A Yes. We have Office Pro.
21 Q What is J/Direct?
22 A J/Direct is a way of allowing Java
23 language code to call native OS functionality. It's
24 a fairly clever thing that we have done. And others
25 now use that term to refer to it when they let their
443 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 OS functionality show through as well.
2 Q You have referred to Java runtimes.
3 Are there J/Direct runtimes?
4 A There's a thunk, but it's -- I don't
5 know if you would call it a runtime or not. It's a
6 thunk.
7 Q Would you define for me what the
8 difference is, in your mind, between a thunk and a
9 runtime?
10 A A thunk is a small piece of runtime
11 that remaps parameters and calling conventions in
12 such a way to be able to pass along an API call to
13 another piece of runtime.
14 Q Does -- or I should say, when was
15 J/Direct developed by Microsoft?
16 A I'm not sure.
17 Q Approximately?
18 A I don't -- I don't know. I mean --
19 Q Why was J/Direct developed by
20 Microsoft?
21 A To make is easy for people who choose
22 the Java language to call the unique runtime features
23 in various operating systems including Windows.
24 Q Why do you want people to write in
25 J/Direct as opposed to Java?
444 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A They are writing in Java. You only use
2 J/Direct if you write in Java.
3 Q Well, what Mr. Nielsen says is that
4 Microsoft is trying to get anyone that wants to write
5 in Java to use J/Direct.
6 Do you see that?
7 A That's right. And that means writing
8 in Java.
9 Q And why do you want to get anyone who
10 wants to write in Java to use J/Direct?
11 A Because that gives them a way of
12 calling unique Windows APIs that allow us to show off
13 the innovative features in Windows.
14 Q Couldn't you do that by having them
15 simply write in Java and you providing the thunk
16 separately?
17 A The name of the thunk is J/Direct. I
18 guess we could have another thunk and call it
19 something other than J/Direct, and that would be
20 another way that they could do it. But we didn't
21 choose to do it twice.
22 Q No, you didn't choose to do it twice.
23 That's not my question, Mr. Gates.
24 My question is why you were trying to
25 get program developers, independent programming
445 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 people, to use J/Direct. Why were you trying to get
2 them to do that?
3 MR. HEINER: Certainly asked and
4 answered.
5 THE WITNESS: Because it allows them to
6 get at the unique API functionality that's in the
7 Windows product and show off the innovations that we
8 do there.
9 Q BY MR. BOIES: But you didn't have to?
10 A Tell me some other way.
11 Q Well, I'm asking you. If you tell me
12 that that's what you say is the only way that you
13 could think of for them to do it, that's your
14 testimony. I don't get to testify here. If I did,
15 there would have been a lot of things I would have
16 said along the way. But since I don't get to
17 testify, all I get to do is ask you questions.
18 And my question to you is whether there
19 was a way, that you were aware of at the time, to let
20 people see all of what you refer to as the
21 functionality of Windows without getting people to
22 write to what you refer to here to use J/Direct if
23 they wanted to write in Java.
24 A J/Direct is exactly the work we did to
25 make it possible and reasonable for people writing in
446 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Java to call the unique Windows APIs.
2 Q Have you finished your answer?
3 A Yes.
4 Q Okay.
5 Now, were you aware of other ways of
6 accomplishing the same result that you considered and
7 rejected at the time?
8 A What time is that?
9 Q The time that you developed J/Direct.
10 A We don't know what that time is.
11 Q Well, you may not know the exact year.
12 But do you know that when -- were you aware when
13 J/Direct was being developed within Microsoft? Were
14 you aware of it at the time?
15 A I'm not sure.
16 Q Did you know it was being developed?
17 A I'm not sure.
18 Q Did you have any discussions about the
19 development of J/Direct?
20 A I was not involved in the design of
21 J/Direct.
22 Q I'm not asking you whether you were
23 involved in the design of J/Direct. I'm asking you
24 whether you were aware at the time that J/Direct was
25 being developed that it was being developed?
447 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A I'm not sure.
2 Q Did you ever have any discussions with
3 anyone about the development of J/Direct at or about
4 the time it was being developed?
5 A I don't think so.
6 Q At the time that J/Direct was being
7 developed, did you know that people were trying to
8 develop J/Direct?
9 A It's just a thunk.
10 Q My question is: Did you know that they
11 were trying to develop this thunk?
12 A I doubt it.
13 Q Did you participate at all in any
14 discussions as to what alternatives there were to the
15 development of J/Direct?
16 A Before it was developed?
17 Q Let's start with before it was
18 developed.
19 A No, I don't think so.
20 Q What about during the time it was being
21 developed?
22 A I don't think so.
23 Q How about after it was developed?
24 A I don't think so.
25 MR. HEINER: We should take a break
448 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 soon.
2 MR. BOIES: Okay.
3 MR. HEINER: Okay.
4 THE VIDEOGRAPHER: The time is
5 2:02 P.M. We're going off the record. This is the
6 end of Tape 3 of the videotaped deposition of Bill
7 Gates.
8 (Recess.)
9 THE VIDEOGRAPHER: The time is 2:16.
10 We're going back on the record. This is Tape 4 of
11 the videotaped deposition of Bill Gates on August 28.
12 Q BY MR. BOIES: Let me show you a
13 document that has been previously marked as
14 Government Exhibit 378.
15 (The document referred to was marked as
16 Government Exhibit 378 for identification and is
17 attached hereto.)
18 Q BY MR. BOIES: In the middle of the
19 first page there is a message dated May 14, 1997,
20 from Ben Slivka to you and others.
21 Did you receive this e-mail on or about
22 May 14, 1997?
23 A I'm not sure. But I have no reason to
24 doubt that I did.
25 Q When Mr. Slivka writes as he does in
449 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 the second paragraph, "This summer we're going to
2 totally divorce Sun," do you know what he's referring
3 to?
4 A I'm not sure.
5 Q Did you ever ask him what he was
6 referring to?
7 A No.
8 Q In the next to last -- or in the last
9 sentence, actually, in the last sentence of the
10 second paragraph, Mr. Slivka writes that "JDK 1.2 has
11 JFC." And is the JFC there the Java Foundation
12 Classes that you referred to earlier?
13 A It's one of the many JFCs.
14 Q What is one of the many JFCs?
15 A The one in JDK 1.2.
16 Q Is the JFC in JDK 1.2 part of what was
17 described as a major threat to Microsoft?
18 A I have no idea which JFC that sentence
19 written by somebody other than me referred to.
20 Q Well, the sentence written by somebody
21 other than you was written to you; right, sir?
22 A It was sent to me.
23 Q Yes. And it was sent to you by one of
24 your chief -- one of your top executives; correct,
25 sir?
450 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A In an e-mail.
2 Q Yes.
3 And that's a frequent way that your top
4 executives communicate with you; correct, sir?
5 A Yes.
6 Q Now, Mr. Slivka here says that
7 Microsoft is going to be saying uncomplimentary
8 things about JDK 1.2 at every opportunity.
9 Do you see that?
10 A Where's that?
11 Q That is, "JDK 1.2 has JFC, which we're
12 going to be pissing on at every opportunity."
13 A I don't know if he's referring to
14 pissing on JFC or pissing on JDK 1.2 nor do I know
15 what he specifically means by "pissing on."
16 Q Well, do you know that generally he
17 means by pissing on he's going to be saying and
18 Microsoft is going to be saying uncomplimentary
19 things.
20 A He might mean that we're going to be
21 clear that we're not involved with it, that we think
22 there's a better approach.
23 Q Well, as you understand it, when
24 Mr. Slivka says he's going to be pissing on JDK 1.2,
25 as you seem to interpret it, at every opportunity, do
451 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 you interpret that as meaning that Microsoft is going
2 to be saying uncomplimentary things about JDK 1.2?
3 A I told you I don't know whether pissing
4 applies to JFC or JDK.
5 Q Well, he's going to be pissing on or
6 Microsoft is going to be pissing on either JDK 1.2 or
7 JFC or both according to Mr. Slivka.
8 Is that at least fair?
9 A That's appears to be what the sentence
10 says.
11 Q Yeah. And as the chief executive
12 officer of Microsoft, when you get these kind of
13 e-mails, would it be fair for me to assume that
14 "pissing on" is not some code word that means saying
15 nice things about you, that has the usual meaning
16 that it would in the vernacular?
17 A I don't know what you mean in this kind
18 of e-mail.
19 Q The kind of e-mail that is sent to you
20 by executives in the course of your business,
21 Mr. Gates.
22 A So all e-mails I get? Ben Slivka's not
23 an executive.
24 Q All the e-mails you get from people
25 telling you that they're going to piss on competitive
452 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 products, that's what I'm talking about.
2 A I don't remember mail like that. It
3 looks like I got one. But believe me, it's not a
4 term that's commonly used.
5 Q But you have no reason to think that he
6 means it in any way other than the normal meaning of
7 that term, do you, sir?
8 A I think it's a term of multiple
9 meanings. In this case I think it means what you've
10 suggested it means.
11 Q I thought it did too, and I hope to
12 avoid asking you going through the actual language.
13 And, Mr. Gates, let me show you a
14 document that has been previously marked as
15 Government Exhibit 377.
16 The second e-mail here refers to what
17 is attached as a final copy of the memo that was sent
18 to you for Think Week in November 1995.
19 (The document referred to was marked as
20 Government Exhibit 377 for identification and is
21 attached hereto.)
22 Q BY MR. BOIES: Do you recall receiving
23 this document, sir?
24 A No. What I recall about this document
25 is that it's already been marked as an exhibit and
453 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 that I spoke with Mr. Houck about it yesterday.
2 Q That may be so. My question to you is:
3 Do you recall receiving this -- let me make it
4 simple.
5 Did you receive this memo in or about
6 November of 1995?
7 A As I said before, for my Think Weeks I
8 get about three cardboard boxes of materials that
9 people put together for me. And in looking at this
10 memo, it's not a memo that I had seen before
11 Mr. Houck's deposition questions put to me yesterday.
12 Q So it's your testimony the first time
13 you saw this document was when Mr. Houck showed it to
14 you yesterday?
15 A That's right. It had a different
16 exhibit number then.
17 Q Let me ask you to go to page 5 of the
18 document which bears in the bottom right-hand corner
19 the Microsoft document production number ending 4683.
20 A Okay.
21 Q Do you see the heading "Shell
22 Integration"?
23 A Yes.
24 Q Do you see the second sentence where it
25 says, "We will bind the shell to the Internet
454 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Explorer, so that running any other browser is a
2 jolting experience"?
3 A I see that.
4 Q Do you have any understanding as to
5 what was meant by that?
6 A I can guess.
7 Q Well, first, this is in a memo that is
8 entitled "How to Get 30 percent share in 12 Months";
9 correct?
10 A Let's take a look. Yeah, that's on the
11 first page.
12 Q And is it clear to you that that is
13 referring to getting a 30 percent share of the
14 browser market?
15 A I haven't read the document, but it
16 seems likely that's what it is.
17 Q Okay.
18 Now, do you have an understanding --
19 I'm not asking you to guess. But do you have an
20 understanding as to what is meant by the statement,
21 "We will bind the shell to the Internet Explorer, so
22 that running any other browser is a jolting
23 experience"?
24 A I don't know what he meant by it, but I
25 can tell you what it likely means.
455 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Okay. I take it this is really how you
2 would have interpreted this when you received it; is
3 that fair?
4 A I didn't read it, so --
5 Q I said if you had received it, this is
6 how you would interpret it?
7 A I said I didn't read it. I actually --
8 I would have read the whole memo if I had received
9 it. I wouldn't have turned to that one page and just
10 looked at that one sentence. I would have read the
11 memo from the beginning page by page, and then I
12 probably would have understood it better than I do at
13 this moment.
14 Q If you do not have an understanding of
15 what is meant by it, you can tell me. If you do have
16 an understanding of what is meant by it, I would like
17 to have it.
18 A I don't know what he meant by it, but
19 I'd be glad to guess as to what it might mean.
20 Q I don't want you to guess. But if you
21 as the chief executive officer of Microsoft can tell
22 me how you would, in the ordinary course of your
23 business, interpret this statement, I would like to
24 have you do so.
25 MR. HEINER: Mr. Gates was prepared to
456 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 do that quite a while ago. That was an unnecessary
2 exchange.
3 Go ahead. You may answer.
4 THE WITNESS: He may be referring to
5 the fact that when you get a separate frame coming up
6 on the win -- on the screen, it's different than
7 having something take place in frame. And part of
8 our shell integration strategy going back all the way
9 to 1990 included the idea that as you navigated or
10 browsed through different media types, you didn't
11 have to have another frame come up because that --
12 that's sort of an artifact of having to think about
13 applications instead of objects.
14 And so as he looked at integrating the
15 browser and the shell together, we were going to
16 create a form of navigation optionally but as the
17 default where you don't switch frames as you navigate
18 the links from the shell to what's out on the
19 Internet back to what's in the local store.
20 Q BY MR. BOIES: Did anyone ever tell you
21 independent of this document in words or in substance
22 that Microsoft intended to bind the shell to the
23 Internet Explorer so that running any other browser
24 is a jolting experience?
25 A Well, certainly the idea of integrating
457 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 in a way that made a better browsing experience was
2 something we were talking about quite a bit. Those
3 words, no, I never heard anything along the lines of
4 those words.
5 Q The words that are in this document; is
6 what you're saying?
7 A That's right.
8 Q Okay.
9 Did Microsoft make any effort to
10 discourage Apple from writing in a JDK 1.2?
11 A That never would have come up. Apple
12 is not an application developer.
13 Q Let me -- let me back up.
14 Did Microsoft ever make an effort to
15 get Apple to discourage applications writers for
16 Apple's machines from writing in what you have
17 referred to as Sun's Java or using the Sun Java
18 runtimes?
19 A I'm sure there was discussion with
20 Apple about the fact that their unique operating
21 system capabilities wouldn't show through with the
22 least common denominator pure approach. Whether that
23 related specifically to JDK 1.2 or not, I can't say.
24 Q When you say you're sure there were
25 discussions, are you talking about discussions
458 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 between Microsoft representatives and Apple
2 representatives?
3 A Yes.
4 Q What was Microsoft's interest in having
5 Apple discourage applications writers for Apple's
6 operating system from using Java runtimes or JDK 1.2?
7 A We thought they might share the view
8 that applications showing off unique operating system
9 features was a good thing. But --
10 MR. BOIES: Could I have that answer
11 read back?
12 (Answer read.)
13 Q BY MR. BOIES: Was there any other
14 reason, sir?
15 A No.
16 Q Did you have personally any discussions
17 with Apple with regard to trying to agree with Apple
18 as to the extent to which Apple and Microsoft would
19 compete with respect to Apple's QuickTime software?
20 A No.
21 Q Do you know if anyone from Microsoft
22 had such discussions with anyone at Apple?
23 A I know over a course of years we've
24 talked to them about what their plans are for
25 QuickTime, but that's all.
459 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Does Microsoft have software that
2 competes with QuickTime?
3 A Since QuickTime's a free runtime, you
4 could answer that either "yes" or "no." It's not a
5 revenue source for Apple. But there is an Apple
6 technology that has some common things with some
7 Microsoft technologies.
8 Q Do you believe that QuickTime software
9 competes with any software distributed by Microsoft?
10 MR. HEINER: Objection.
11 THE WITNESS: Depends on what you mean
12 "compete."
13 Q BY MR. BOIES: Using that in the way
14 that you would ordinarily understand it in the
15 operation of your business, sir.
16 A No.
17 Q Did you make any effort or did
18 Microsoft make any effort to get Apple to agree not
19 to market QuickTime in any respect or to limit the
20 marketing of QuickTime in any respect?
21 A There were discussions about whether we
22 could help them with their QuickTime goals at various
23 points in time. And, in fact, they encouraged us to
24 do something where we'd actually by working with them
25 make QuickTime even more popular than it is.
460 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 MR. BOIES: Would you read back my
2 question, please?
3 (Question read.)
4 Q BY MR. BOIES: Can you answer that
5 question, sir?
6 MR. HEINER: Objection.
7 THE WITNESS: I'm not aware of anything
8 that was directly aimed at those things, no.
9 Q BY MR. BOIES: Are you aware of
10 anything that was indirectly aimed at those things?
11 A No.
12 Q Did, to your knowledge, any
13 representative of Microsoft try to convince Apple not
14 to sell or promote QuickTime for uses for which
15 Microsoft promotes the use of NetShow?
16 A There was some discussion about the
17 future development of the runtime code and whether we
18 could work together on the Windows side of that
19 runtime code that would enhance their goal and our
20 goals.
21 Q And was there a discussion in that
22 context about Apple agreeing not to sell or promote
23 QuickTime for uses that Microsoft was promoting
24 NetShow to fulfill?
25 A Not that I'm aware of.
461 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Insofar as you're aware, did Microsoft
2 representatives tell Apple representatives that if
3 Apple would agree not to sell or promote QuickTime
4 for uses for which Microsoft offered NetShow, that
5 Microsoft would help Apple in other areas?
6 A Well, the Quick -- as far as I know,
7 the QuickTime runtime is free. So when you say
8 "sell," I don't -- I'm not sure what you mean there.
9 Q I think I said sell or promote, I
10 certainly meant to. But I will use the word
11 "distribute," if that will help.
12 A I think there was a technical
13 discussion about whether a common runtime was
14 achievable which would have enhanced their QuickTime
15 goals.
16 Q When you say "a common runtime," would
17 you explain what you mean by that?
18 A I mean that the Windows media player
19 runtime would combine technology from them and from
20 us that met all of their goals for QuickTime.
21 Q And so there would be a Windows media
22 player that would be distributed, and Apple would
23 stop distributing QuickTime for purposes for which
24 the Windows media player was distributed; is that
25 what you're saying?
462 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A No. They wouldn't have to stop
2 anything. There would just be a new runtime that
3 might incorporate some of their technology and help
4 them with their QuickTime goals.
5 Q Well, when you say there would be a new
6 program that would incorporate or might incorporate
7 some of their technology, would that result in them
8 stopping the distribution of their existing QuickTime
9 technology?
10 A There's no reason it would need to.
11 Q Was that part of the discussions?
12 A I don't think so. But as I told you, I
13 wasn't part of any of those discussions.
14 Q Were you aware of those discussions
15 while they were going on?
16 A I knew that Apple had a -- had the
17 QuickTime runtime for Windows. And there was always
18 a question of whether we could create a Windows
19 runtime that combined what their goals were there and
20 what they had done well there for the work we were
21 doing. And I know we talked to Apple about whether
22 we could help each other in an effort like that.
23 Q When you talk about helping each other,
24 would that result in a single product that would then
25 be distributed in place of both QuickTime and
463 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 NetShow?
2 A No. People could still distribute
3 their old things. But if you create a new thing
4 that's better, some people might use it.
5 Q Well, was the purpose of creating the
6 new Windows media player that you referred to to
7 obsolete QuickTime?
8 A Whatever functionality QuickTime had
9 previously would be unaffected by any such effort.
10 Q That really wasn't my question,
11 Mr. Gates. Maybe I can state it more clearly.
12 Did Microsoft try to convince Apple to
13 take actions which would have resulted in Apple no
14 longer distributing QuickTime to people to whom
15 Microsoft was distributing NetShow or a successor
16 Microsoft product?
17 A I'm not aware of anything that would
18 have stopped them from distributing the QuickTime
19 they had. But it was possible we could come up with
20 something that would be helpful to both companies in
21 terms of a product that took some of their technology
22 and ours and was better for users.
23 Q Did Microsoft offer to have Apple
24 continue to offer a multimedia player for the Mac
25 platform and to assist Apple in that if Apple would
464 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 agree not to distribute that multimedia player for
2 the Windows platform?
3 A As I said, I don't think there was any
4 discussions about not distributing some old thing,
5 but rather a question that was could something new be
6 created which would be better for both companies.
7 Q Was the idea that once this new thing
8 was created, the old thing that Apple was
9 distributing would no longer be distributed by Apple?
10 A As I said, I don't think that was part
11 of the discussion.
12 Q Have you ever been told anything or
13 have you ever read anything about any contentions
14 that Apple may or may not make concerning these
15 discussions?
16 A No.
17 Q Are you aware of any assertions by
18 Apple representatives that Microsoft representatives
19 tried to get them to agree to divide the market?
20 A No.
21 Q No one's ever told you that; is that
22 your testimony?
23 A That's right.
24 Q And you've never heard that from any
25 source?
465 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A That's right.
2 Q Do I take it from what you said
3 yesterday that if, in fact, Microsoft representatives
4 had attempted to get Apple representatives to
5 participate in a market division, that would be
6 contrary to Microsoft policy?
7 MR. HEINER: Objection.
8 THE WITNESS: That's right.
9 Q BY MR. BOIES: And I take it that if
10 you found out that people had done that contrary to
11 Microsoft's policy, they would be appropriately dealt
12 with?
13 A Yes.
14 Q Are you a regular reader of the Wall
15 Street Journal?
16 A Some days I read the Wall Street
17 Journal.
18 Q Are you aware of a Wall Street Journal
19 article that discusses assertions by Apple concerning
20 alleged efforts by Microsoft to get Apple to agree to
21 divide markets?
22 A No.
23 MR. HEINER: Mr. Boies?
24 MR. BOIES: Yes.
25 MR. HEINER: Is the antitrust division
466 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 contemplating filing an amended complaint in this
2 action?
3 MR. BOIES: No.
4 MR. HEINER: Are these questions being
5 asked pursuant to the complaint that was filed in
6 this action?
7 MR. BOIES: Yes.
8 MR. HEINER: I think they're outside
9 the scope of that complaint.
10 MR. BOIES: I do not. I think that the
11 pattern of Microsoft in terms of attempts to divide
12 markets and the effect of those attempts on
13 Microsoft's monopoly power and the evidence of
14 Microsoft's monopoly power that comes out of those
15 attempts are all directly relevant to the case.
16 MR. HEINER: You could plead a
17 complaint like that. You haven't yet.
18 MR. BOIES: I think that complaint is
19 clearly so pled. I think this is clearly within the
20 scope of the complaint.
21 MR. HEINER: Let me ask you a different
22 question.
23 Have you prioritized your questions
24 today so that you've asked the ones that are most
25 important to you?
467 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 MR. BOIES: I think that I'm going
2 through the examination in a logical way. It has not
3 been possible to prioritize things completely without
4 simply jumping from topic to topic because of the
5 length of time that it has taken to deal with certain
6 topics. But I do think that the pattern and practice
7 of attempts of market division is a matter of
8 priority.
9 MR. HEINER: I won't cut off the
10 questioning. But note the objection.
11 Q BY MR. BOIES: Let me ask you to go to
12 a different issue of market division or alleged
13 market division. But before I do, let me just refer
14 you to a Wall Street Journal article of July 23,
15 1998, entitled "U.S. Probing Microsoft's Multimedia
16 Role."
17 Does that refresh your recollection as
18 to whether you ever saw a -- a Wall Street Journal
19 article about alleged market division attempts
20 between Microsoft and Apple?
21 MR. HEINER: Do you want to show us the
22 article?
23 MR. BOIES: I have no objection to
24 showing it. And I have no objection to marking it.
25 MR. HEINER: I don't care if it's
468 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 marked or not.
2 MR. BOIES: My purpose is just to try
3 to refresh his recollection, to see whether he
4 recalls having ever seen this.
5 THE WITNESS: No.
6 MR. BOIES: Okay.
7 Q In that case, let me show you a
8 document marked as Government Exhibit 375.
9 The second item on the first page is an e-mail
10 message from you to Jim Allchin and others dated
11 October 12, 1997.
12 (The document referred to was marked as
13 Government Exhibit 375 for identification and is
14 attached hereto.)
15 Q BY MR. BOIES: Did you send this e-mail
16 October 12, 1997?
17 A I don't remember it. But I have no
18 reason to doubt that I did.
19 Q In the first paragraph you say,
20 quote,
21 "I have a critical meeting
22 with Intel a week from Wednesday. I
23 want to convince them that they need
24 to stay away from Oracle NCs and work
25 more closely with Microsoft," close
469 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 quote.
2 Do you see that?
3 A Uh-huh.
4 Q Did you have that meeting?
5 A I had a meeting.
6 Q Do you recall having that meeting?
7 A I don't know what you mean "that
8 meeting."
9 Q You say, "I have a critical meeting
10 with Intel a week from Wednesday." Did you have that
11 meeting?
12 A I feel sure I had a meeting with Intel
13 after this piece of e-mail was sent.
14 Q In October of 1997?
15 A Could have been November. You'd have
16 to -- let's see. No. October.
17 Q Let me ask you to look at the last
18 paragraph under the heading "Sun byte codes are bad
19 for them." And you say, quote,
20 "I want them to understand
21 that helping NCs and JAVA will push
22 us to do Windows and other software
23 in SUN byte codes even if we don't
24 rewrite them in JAVA," close quote.
25 Do you see that?
470 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A Uh-huh.
2 Q When you say "I want them to
3 understand," are you referring to Intel?
4 A I think so.
5 Q Did Microsoft make any effort to
6 convince Intel not to help Sun and Java?
7 A Not that I know of.
8 Q Did you or anyone at Microsoft attempt
9 to convince Intel not to engage in any software
10 activity?
11 MR. HEINER: Objection.
12 THE WITNESS: No.
13 Q BY MR. BOIES: Did you or, to your
14 knowledge, anyone at Microsoft try to convince Intel
15 that it should not engage in any software activity
16 unless Microsoft was involved in that activity?
17 A I'm sure we pointed out sometimes how
18 sometimes a lack of communications between the two
19 companies on various subjects including software
20 development led to unfortunate unreliability and
21 mismatch which led to bad customer experiences.
22 Q And what did that lead you to ask Intel
23 to do?
24 A Oh, in general, to see if we couldn't
25 do a better job communicating with each other so that
471 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 people would have better experiences using the PC.
2 Q Did you tell or did anyone, insofar as
3 you are aware, from Microsoft tell Intel
4 representatives that you did not want Intel's
5 software engineers interfering with Microsoft's
6 existing domination of the software side of the PC
7 industry?
8 A No.
9 Q Are you aware of an Intel operation
10 referred to as the Intel architecture labs?
11 A Yes.
12 Q Did you tell Intel chief executive
13 officer Andy Grove that you believed that Intel
14 should shut down its Intel architecture labs?
15 A No.
16 Q What did you understand the Intel
17 architecture labs to be doing?
18 A I can't claim to have a lot of
19 expertise on the broad set of things the Intel
20 architecture labs was doing.
21 Q What did you know the Intel
22 architecture labs was doing?
23 A Well, they were doing some plumbing
24 software to try to get some things to run on Windows
25 3.1 at one point. That's one thing I know they were
472 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 doing. But in terms of their breadth of activities,
2 I'm -- the most of it I wouldn't have any familiarity
3 with.
4 Q Did you believe that there was anything
5 about what Intel was doing in the Intel architecture
6 labs that was inconsistent with Microsoft's
7 interests?
8 A Well, the fact that their software
9 didn't run with Windows 95 and would break if the
10 user wanted to move up to Windows 95 was a subject of
11 concern and discussion for us related to an overall
12 set of projects that were sometimes called NSP,
13 although that term had many meanings.
14 Q What does NSP stand for?
15 A Sometimes it means native signal
16 processing.
17 Q And how did what the Intel architecture
18 labs was doing relate to NSP?
19 A That was the plumbing.
20 Q For NSP?
21 A I believe so.
22 Q Did you tell Intel CEO, Mr. Grove, that
23 you believed that what Intel was doing in the Intel
24 architecture labs was contrary to Microsoft's
25 interests?
473 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 A In a broad sense, no. In terms of some
2 specific things that broke software for users I did
3 evidence that concern.
4 Q And you did so personally?
5 A Personally and inpersonally.
6 Q Did you ask Mr. Grove to cancel the
7 Intel architecture labs' work?
8 A No.
9 Q Did you or, insofar as you're aware,
10 anyone else at Microsoft tell people at Intel that
11 they should leave the software side of the PC
12 business entirely to Microsoft?
13 A We were having a hard time coordinating
14 our work with Intel, and we thought the quality of
15 some of their work was very low as well as not
16 working with any of our new Windows work. We may
17 have suggested at some point that the net
18 contribution of their software activities could even
19 be viewed to be negative.
20 Q Did you or insofar as you are aware or
21 anyone else at Microsoft tell representatives of
22 Intel that their software activities were
23 inconsistent with cooperation between Intel and
24 Microsoft?
25 A The specific work they did that
474 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 completely broke our work I'm sure I indicated I
2 didn't think that was a good idea for either company.
3 Q Other than the specific software that
4 would not work on Windows 95 that Intel was working
5 on, did you or, insofar as you are aware, anyone else
6 at Microsoft tell Intel representatives that the
7 software work that Intel was doing was inconsistent
8 with cooperation between Intel and Microsoft?
9 A Well, there's some other things that
10 they did that created incompatibilities.
11 Q Incompatibilities between what and
12 what?
13 A Between their software and Windows,
14 that was intended to run on Windows, that created
15 incompatibilities.
16 Q And did you tell them that that
17 software also was not consistent with cooperation
18 between Microsoft and Intel?
19 A I doubt I used those words. I
20 suggested that it wasn't helpful to any of their
21 goals or our goals to have software that had
22 incompatibilities and was low quality and broke.
23 Q Did you tell Intel representatives or
24 did, insofar as you're aware, any Microsoft employee
25 tell Intel representatives that you were concerned
475 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 about Intel support for Netscape?
2 A I don't remember that.
3 Q Do you remember telling Intel
4 representatives that you were concerned that Intel
5 support for Netscape could allow Netscape to grow
6 into a de facto standard?
7 A No.
8 Q Did you tell representatives of Intel
9 that you were concerned that Intel's use of Netscape
10 could set up a positive feedback loop for Netscape
11 that would allow it to grow into a de facto standard?
12 A What do you mean Intel's use of
13 Netscape?
14 Q I'm asking whether you told this to
15 Intel. If you didn't --
16 A Given that I don't know what you mean
17 by Intel use of Netscape, if you're not going to
18 clarify what you mean by that --
19 Q All I'm asking is whether you told them
20 something, Mr. Gates. And if you tell me, "I didn't
21 tell them that. Not only would I not tell them that
22 because I don't understand what it could be," that's
23 an answer.
24 But what I'm asking you is whether you
25 told them that in words or in substance. And if you
476 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 didn't, you didn't. Or if you say you didn't, you
2 say you didn't. But all I want to do is get your
3 answer.
4 MR. HEINER: And the witness's plea for
5 clarification of the question is that when you add
6 the "in substance" part, then you would need to
7 define the terms.
8 MR. BOIES: Well, let me try to
9 approach it this way. I wouldn't have thought the
10 term used is quite so ambiguous.
11 Q But, Mr. Gates, did you tell
12 representatives of Intel that Intel using Netscape in
13 a Windows environment would not be a problem so long
14 as Intel did not assist in setting up a positive
15 feedback loop for Netscape that allowed it to grow
16 into a de facto standard? Did you say that or write
17 that or communicate that, those words or words that
18 you recognize to mean the same thing?
19 MR. HEINER: Objection.
20 THE WITNESS: I'm still confused about
21 what you mean Intel's using something. Are you
22 talking about like in their internal IT systems?
23 What's this about?
24 Q BY MR. BOIES: Mr. Gates, either you
25 told that to Netscape or you didn't. If you tell me
477 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 you didn't tell that to Netscape, I'll go on to the
2 next question.
3 A I did not.
4 Q Okay.
5 MR. HEINER: Let's get one point clear.
6 When the witness has some confusion on a question,
7 should he or should he not bring that to your
8 attention?
9 MR. BOIES: I think the witness should
10 tell me that "I don't understand your question."
11 MR. HEINER: That's what he did, and
12 you seemed annoyed.
13 MR. BOIES: I don't think I seemed
14 annoyed. I think that there is, perhaps, given the
15 amount of time that we've spent on defining words
16 that I think have ordinary and clear meanings, I may
17 be anxious to move that along as much as possible.
18 But if the witness simply says "I don't understand
19 the question," I will rephrase it. There may be
20 times when I do become a little annoyed when the
21 witness instead of doing that decides to rephrase the
22 question and answer an entirely different question
23 from the one I've asked. But if the witness simply
24 says --
25 MR. HEINER: Which is what just
478 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 happened.
2 MR. BOIES: I don't want to debate it
3 with you, the record will show what happened. But if
4 the witness simply says in response to a question "I
5 don't understand that question," I'll take that for
6 an answer and I'll rephrase it.
7 Q Did you, Mr. Gates, personally ever
8 express concern to Mr. Grove that Intel's software
9 work was beginning to overlap with Microsoft's
10 software work?
11 A Only in the sense that the low quality
12 and incompatibilities were inconsistent with any
13 goals that Intel might have had in doing that work.
14 Q Why was that a concern?
15 A Because Intel was wasting its money by
16 writing low quality software that created
17 incompatibilities for users, and those negative
18 experiences weren't helpful for any goal that Intel
19 had.
20 Q Were they harmful to any goal that
21 Microsoft had?
22 A Only in the sense of hurting PC
23 popularity by creating negative user experiences.
24 Q Is it your testimony that your only
25 concern with what Intel was doing in the software
479 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 area was a concern to avoid negative user
2 experiences?
3 A That's right. Low quality and
4 incompatibilities.
5 Q Which, according to you, would lead to
6 negative user experiences; correct?
7 A That's right.
8 Q Did you or, insofar as you are aware,
9 anybody at Microsoft ever tell Intel representatives
10 in words or in substance that they should stick to
11 hardware and leave the software to Microsoft?
12 MR. HEINER: Objection.
13 THE WITNESS: I'm sure there were times
14 when we were frustrated about the quality and
15 incompatibility problems created about their software
16 where someone might have expressed that sentiment in
17 an extreme feeling about how tough it had been for
18 Intel to do quality work that would have advanced any
19 Intel goal.
20 Q BY MR. BOIES: Were you aware of any
21 work that Intel was doing relating to Internet
22 software development?
23 A I can't think of any.
24 Q Did you ever express any concern to
25 anyone at Intel, or to your knowledge, did anyone at
480 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Microsoft ever express any concern to anyone at Intel
2 concerning Intel's Internet software work, if any?
3 A I don't think Intel ever did any
4 Internet software work.
5 Q And if they did, I take it it's your
6 testimony no one ever told you about it?
7 A That's right.
8 Q Did you or, to your knowledge, anyone
9 at Microsoft express concern to Intel about the
10 success of Java or what you have referred to in this
11 deposition as Java runtimes?
12 A From time to time we'd have general
13 discussions with Intel about things going on in the
14 industry. And I'm sure our views of the Java runtime
15 competition may have come up in some of those
16 discussions.
17 MR. BOIES: Could I have the question
18 and answer read back please?
19 (The following record was read:
20 "Q Did you or, to your
21 knowledge, anyone at Microsoft
22 express concern to Intel about the
23 success of Java or what you have
24 referred to in this deposition as
25 Java runtimes?
481 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 "A From time to time we'd
2 have general discussions with Intel
3 about things going on in the
4 industry. And I'm sure our views of
5 the Java runtime competition may have
6 come up in some of those
7 discussions.")
8 Q BY MR. BOIES: In those discussions,
9 did you or others from Microsoft express concern
10 about Java and Java runtime's popularity to Intel
11 representatives?
12 A I think it's likely in those general
13 discussions. We talked about some of the
14 opportunities and competitive things going on
15 including our view of what was going on in Java
16 runtime.
17 Q Did you tell representatives of Intel
18 or, to your knowledge, anyone from Microsoft tell
19 representatives of Intel that in Microsoft's opinion
20 the wide distribution of Java and Java runtimes were
21 incompatible with interests of both Intel and
22 Microsoft?
23 A Actually, there -- there's one aspect
24 of Java that could have an effect on Intel and would
25 have no effect on Microsoft. So it's completely
482 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 orthogonal. And I pointed out to them what that was.
2 And so I did think there was one thing they ought to
3 think about in terms of where the world of software
4 development was going. But it wasn't an issue that
5 related to Microsoft.
6 Q Irrespective of what you said about
7 that particular issue, did you or others from
8 Microsoft tell Intel in words or in substance that is
9 as a general matter, a general conclusion, the
10 popularity of Java and Java runtimes was not in your
11 joint interest? And joint interest, I mean Microsoft
12 and Intel.
13 A No. There was nothing about it that
14 related to any joint interest. There was one thing
15 about it that related to some of Intel's interests
16 and there were other things about it that related to
17 some of Microsoft's interests. But there's no
18 overlap between those two.
19 Q Let me put the question this way: Did
20 you or, to your knowledge, others from Microsoft tell
21 Intel that for whatever reasons you believed that the
22 widespread distribution of Java and Java runtimes was
23 inconsistent with both interests of Intel and
24 interests of Microsoft?
25 A Well, it's like you're trying to
483 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 rephrase what I said in a more inaccurate way. I
2 told you there's an aspect of it that I thought they
3 should think about that related to them only, that's
4 the byte code piece. And then there's an aspect of
5 it that relates to us only. So there's no end there,
6 there's just a piece that might have been of interest
7 to them that I articulated, and then there's the part
8 that relates strictly to us.
9 Q Let me take it in two pieces. Did you
10 tell Intel representatives that you believed that
11 there were reasons why the widespread distribution of
12 Java and Java runtimes were not in Intel's interests?
13 A Not in that general sense. I pointed
14 out the very specific aspect of it, the byte code
15 aspect, that I thought they ought to think about that
16 had no effect on us.
17 Q Did you tell Intel representatives that
18 there were things about the wide distribution of Java
19 and Java runtimes that Microsoft believed was not in
20 Microsoft's interest?
21 A It's likely that in the general
22 discussion the notion of some of the new competitive
23 activities including the Java runtime issues would
24 have come up in some discussions with Intel but
25 not -- not related to anything they were doing.
484 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Did you ask Intel to keep you apprised
2 of what software work Intel was doing?
3 A I think I made that request in vein on
4 several occasions, nothing ever came of it.
5 Q Is it your testimony that they refused
6 to keep you apprised of the software work they were
7 doing?
8 A No. I just said to them that if they
9 would -- whatever software work they were doing that
10 was intended to help Windows, they should talk to us
11 about it early on if they wanted to have the highest
12 probability that it would, in fact, achieve that
13 goal.
14 And unfortunately, we never achieved
15 that result; that is, they would do things related to
16 Windows that without talking to us in advance, and
17 then once they had done the work, there would be some
18 incompatibilities between what they had done and
19 Windows itself.
20 Q When is the last time that you asked
21 Intel to keep you apprised of what software work they
22 were doing?
23 A I'm not sure.
24 Q Approximately when?
25 A I don't know.
485 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Was it within the last year?
2 A I don't know.
3 Q Was it within the last two years?
4 A I honestly don't know.
5 Q Was it within the last three years?
6 A There's probably one instance where I
7 asked them to tell us about things they were doing
8 related to Windows.
9 Q Did you or others, to your knowledge,
10 from Microsoft tell Intel that if Intel began to
11 compete with Microsoft, Microsoft would be forced to
12 begin to compete with Intel?
13 A No.
14 Q Not at all, sir; never said that in
15 words or in substance?
16 A No.
17 Q To your knowledge did anyone else from
18 Microsoft ever say that?
19 A I'm not aware of anybody saying that.
20 Q If anybody had said that, would you
21 consider that to be inconsistent with company policy?
22 MR. HEINER: Objection.
23 THE WITNESS: I'm confused. Intel and
24 Microsoft are not in the same businesses, so there's
25 no policy about one of our people suggesting that
486 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 we're going to go into the chip business.
2 Q BY MR. BOIES: Was it part of what you
3 wanted to accomplish, Mr. Gates, to be to keep Intel
4 and Microsoft in separate businesses?
5 A No.
6 Q Did you ever take any action intended
7 to accomplish that?
8 A No.
9 Q Did you or, to your knowledge, anyone
10 from Microsoft ever tell people at Intel that
11 Microsoft would hold up support for Intel's
12 microprocessors if Intel didn't cooperate with
13 Microsoft in areas that Microsoft wanted Intel's
14 cooperation in?
15 A When we saw Intel doing the low quality
16 work that was creating incompatibilities in Windows
17 that served absolutely no Intel goal, we suggested to
18 Intel that that should change. And it became
19 frustrating to us because it was a long period of
20 time where they kept doing work that we thought,
21 although it was intended to be positive in the
22 Windows environment, it was actually negative. And
23 we did point out the irony of how while we seemed to
24 communicate with them on microprocessor issues and
25 yet they seemed on the areas where they were trying
487 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 to enhance Windows that the communication worked very
2 poorly.
3 Q Did you or others on behalf of
4 Microsoft tell Intel that Microsoft would hold up
5 support for Intel's microprocessors if Intel did not
6 cooperate with Microsoft?
7 A No.
8 Q No one ever told Intel that, to your
9 knowledge?
10 A That's right.
11 Q Let me see if I can refresh your
12 recollection.
13 Did you or anyone from Microsoft ever
14 tell Intel representatives that Microsoft would hold
15 up support for Intel's microprocessors if Intel
16 didn't cooperate with Microsoft on the Internet?
17 A No.
18 Q Did you or anyone from Microsoft ever
19 tell representatives of Intel that Intel would not
20 cooperate -- that if Intel would not cooperate with
21 Microsoft on communications programs, Microsoft would
22 hold up support for Intel's microprocessors?
23 A No.
24 Q Did you or to your knowledge anyone
25 from Microsoft ever tell Intel that you wanted Intel
488 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 to reduce its support of Netscape?
2 MR. HEINER: Objection.
3 THE WITNESS: It's very likely that our
4 sales force that calls on Intel as a software
5 customer talked to them about their web site and
6 their browsers. And they may have tried to convince
7 them to use our browser in terms of their internal
8 efforts. It's kind of a knit, but I think it's
9 possible.
10 Q Did you, Mr. Gates, ever yourself try
11 to get Intel to reduce its support of Netscape?
12 A I'm not aware of any work that Intel
13 did in supporting Netscape. They may have used their
14 browser internally or one of their server things, but
15 that's -- that's not really support. So I'm not sure
16 of any support they were giving to Netscape.
17 Q You may mean that to answer my
18 question, but I want to be clear.
19 It is your testimony that you're not
20 aware of any instance where you asked anybody at
21 Intel to reduce the support that Intel was providing
22 to Netscape; is that your testimony?
23 A No. I may have asked -- I may -- and I
24 don't remember it -- but I may have talked to them
25 about their internal browser use. I don't think so,
489 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 but I may have. And I may have talked to them about
2 their web servers and what they were using, but I
3 don't think so.
4 MR. HEINER: We would like to take one
5 last break here at some point, and we'll go through
6 until 4:00.
7 MR. BOIES: Okay.
8 MR. HEINER: Okay.
9 THE VIDEOGRAPHER: The time is 3:26.
10 We're going off the record.
11 (Recess.)
12 THE VIDEOGRAPHER: The time is 3:36.
13 We're going back on the record.
14 Q BY MR. BOIES: Mr. Gates, you're
15 familiar with a company called RealNetworks, are you
16 not?
17 A Yes.
18 Q Did you ever have any discussions with
19 any representative of RealNetworks concerning what
20 products RealNetworks should or should not offer or
21 distribute?
22 A No.
23 Q Microsoft signed two contracts with
24 RealNetworks, did it not, sir?
25 A I have no idea. I thought it was one.
490 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q RealNetworks was previously called
2 Progressive Networks; correct, sir?
3 A Right.
4 Q In the contract or contracts, if there
5 was more than one, between Microsoft and
6 RealNetworks, was there any restriction on what
7 services RealNetworks could provide to competitors of
8 Microsoft?
9 A I've never looked at those contracts.
10 Q Did you participate at all in those
11 contracts either the negotiation of those contracts
12 or discussions concerning those contracts prior to
13 the time they were entered into?
14 A I knew that Muglia and Maritz were
15 talking with Progressive about some kind of deal, but
16 I didn't know what was in the deal.
17 Q Did you know anything about what was in
18 the deal?
19 A I knew there was an investment piece.
20 I knew there was some code licensing in it. That's
21 about all.
22 Q At the time that Microsoft was
23 negotiating the contract or contracts with
24 RealNetworks -- and I'll refer to it as RealNetworks
25 even though at the time it was referred to as
491 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Progressive Networks -- did you consider that company
2 to be a competitor of Microsoft?
3 A Not -- I think I was confused about
4 what RealNetworks -- what their plans were, and I
5 wasn't sure if they were a competitor or not.
6 Q Was there a time when you did become
7 convinced that they were a competitor?
8 A Yes.
9 Q When was that?
10 A When Rob Glaser appeared in Washington,
11 D.C.
12 Q To testify before a Congressional
13 committee?
14 A Senate, yes.
15 Q What led you to conclude from
16 Mr. Glaser's testimony that RealNetworks was a
17 competitor of Microsoft?
18 A It was nothing in his testimony.
19 Q Why did you become convinced at the
20 time of his testimony that RealNetworks was a
21 competitor of Microsoft?
22 A Well, because he went out of his way to
23 lie about us, I sort of thought, "Hum, he must be a
24 competitor."
25 Q When you say he went out of his way to
492 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 lie about you, when was that?
2 A That was at the press interview
3 surrounding the testimony -- maybe the testimony
4 itself, I'm not sure. I've never seen a transcript.
5 Q Did you ever personally have a
6 conversation with Mr. Glaser about his business?
7 A A long, long time ago when Rob was just
8 getting started I think there was one meeting that I
9 had with Rob. I haven't met with him since then.
10 Q Was that meeting before or after the
11 contract between RealNetworks and Microsoft that you
12 say that you know about?
13 A If you mean the contract where we
14 invested in Progressive, it was years before it and
15 not at all related to it.
16 Q When was the contract in which you
17 invested in Progressive Networks or RealNetworks?
18 A I'm not sure. I'd guess it's about a
19 year ago.
20 Q Did you have a conversation with
21 Mr. Glaser a few days after that agreement was
22 signed?
23 A Now that you ask me that, maybe I did.
24 Maybe I did. I think we may have had a short
25 meeting.
493 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q And did you in that meeting tell
2 Mr. Glaser in words or in substance how you thought
3 he should limit his business?
4 A Absolutely not.
5 Q Not in any way, sir?
6 A Not in any way.
7 Q Did you tell him he ought to get out of
8 the base streaming media platform business?
9 A No.
10 Q Did anyone ever tell you that
11 Mr. Glaser had said he would get out of the base
12 streaming media platform business?
13 A No.
14 Q Did Mr. Maritz ever tell you that
15 Mr. Glaser's stated plan was that he would get out of
16 the base streaming media platform business?
17 A As far as I know, we didn't know what
18 Rob's plans were.
19 Q Did you ever try to find out what those
20 plans were, sir?
21 A No.
22 Q Were those plans important to you?
23 A To me personally? No.
24 Q Were they important to Microsoft?
25 A On a relative basis, I'd say no.
494 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 Q Well, I suppose on a relative basis a
2 business as big as Microsoft, I don't know what would
3 be important, but --
4 A I can tell you.
5 Q -- but on a non-relative basis?
6 A I can tell --
7 Q Yes. Tell me what would be important
8 to Microsoft on a relative basis.
9 A Improvements in Windows, improvements
10 in Office, breakthroughs in research, breakthroughs
11 in Back Office.
12 Q How about browsers? On a relative
13 basis would that be important -- was that important
14 to Microsoft?
15 A To the degree it relates to Windows,
16 yes.
17 Q What about Java or Java runtime? Was
18 that on a relative basis important to Microsoft?
19 A To the degree it related to Windows,
20 yes.
21 Q Let me ask you to look at a document
22 that we have marked Government Exhibit 379. This
23 purports to be an e-mail from Paul Maritz. You are
24 not shown on this as receiving a copy. The portion
25 I'm particularly interested in is the last full
495 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 paragraph that says, quote,
2 "Rob's stated plan is that
3 he will get out of the base streaming
4 media platform business, and focus on
5 higher level solutions, hosting, and
6 content aggregation, and says that
7 his goal is now to get us to get his
8 base technology as widespread as
9 possible," close quote.
10 Do you see that?
11 A Uh-huh.
12 (The document referred to was marked as
13 Government Exhibit 379 for identification and is
14 attached hereto.)
15 Q BY MR. BOIES: Did anyone ever tell
16 you, as Mr. Maritz writes here, that Mr. Glaser had
17 said that his stated plan was that he would get out
18 of the base streaming media platform business?
19 A No.
20 Q Did you or, to your knowledge, anyone
21 from Microsoft ever tell Mr. Glaser that he should
22 get out of the base streaming media platform
23 business?
24 A No.
25 Q Okay.
496 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 You are aware, are you not, sir, that
2 one of the issues in this case is the extent to which
3 operating systems and browsers are or are not
4 separate products?
5 MR. HEINER: Objection.
6 Mischaracterizes the allegations of the complaint, I
7 believe.
8 MR. BOIES: Well, if the witness tells
9 me that he doesn't think that's an issue in the case,
10 he can so tell me.
11 THE WITNESS: I'm not a lawyer, so I
12 think it's very strange for me to opine on what's an
13 issue in the case. As far as I know, the issues in
14 the case are not -- are something that you decide,
15 and I don't claim to have any expertise at all.
16 Q BY MR. BOIES: And if you don't know,
17 that's okay. But one of the things that I want to
18 understand from you is whether your understanding,
19 which is important to my next line of questions, is
20 that the issue of whether or not browsers are or are
21 not a separate product from the operating system is
22 in this case.
23 MR. HEINER: Objection. What operating
24 system? What browsers? You referred to "the
25 operating system."
497 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 MR. BOIES: You want me to stop. All
2 right. I --
3 MR. HEINER: No. I want you to ask the
4 question but with specific specificity.
5 MR. BOIES: I've asked the question.
6 If he says he doesn't understand this question,
7 again, we put it down and then it's there for people
8 to look at later.
9 MR. HEINER: That's fine. You can do
10 that. And I, as his counsel, can pose an objection.
11 MR. BOIES: Yeah. But you can't pose
12 questions to me particularly when you're trying to
13 get the witness out at 4:00.
14 MR. HEINER: I can.
15 MR. BOIES: Not questions to me.
16 Q Mr. Gates -- you can put in an
17 objection, I'm not trying to keep you from putting in
18 an objection.
19 Mr. Gates, do you understand that the
20 issue of whether or not browsers are a separate
21 product or are not a separate product from the
22 operating system is an issue in this case?
23 A I don't consider myself someone who
24 could say if that's an issue in this case or not.
25 Q Have you participated in any way in
498 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 trying to get Microsoft personnel to use language
2 that would suggest that browsers and operating
3 systems are not separate products?
4 A I have no idea what you mean by that.
5 Q Well, have you seen e-mails that urge
6 people within Microsoft not to talk about browsers as
7 if they were separate from the operating system?
8 A I don't recall seeing any such e-mail.
9 Q Are you aware of any anybody within
10 Microsoft who has asserted, either in an e-mail or
11 otherwise, that people ought to not talk about
12 browsers as if they were separate from the operating
13 system?
14 A I don't remember any such e-mail.
15 Q Has Microsoft tried to get companies to
16 agree to statements that Internet Explorer comprises
17 part of the operating system of Windows 95 and
18 Windows 98?
19 A I know it's a true statement, but I'm
20 not aware of us doing anything to try to get anyone
21 else to endorse the statement.
22 Q You're not aware of any effort by
23 Microsoft to get non-Microsoft companies to endorse
24 the statement that Internet Explorer comprises part
25 of the operating system of Windows; is that what
499 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 you're saying?
2 A I'm not aware of such efforts.
3 Q Do you know whether Microsoft has made
4 any efforts to include language like that in any of
5 its license agreements?
6 A No, I don't.
7 Q Do you know why Microsoft might do
8 that?
9 MR. HEINER: Objection.
10 THE WITNESS: I'm not sure.
11 Q BY MR. BOIES: Do you recognize that
12 OEMs have a need to acquire the Windows operating
13 system that Microsoft licenses?
14 A What do you mean by OEM? Is it a
15 tautology because of the way you're defining it?
16 Q Well, if you take IBM and Compaq and
17 Dell, Gateway and some other companies, those are
18 commonly referred to as OEMs or PC manufacturers;
19 correct, sir?
20 A No. The term "OEM" would be quite a
21 bit broader than that. OEMs used means original
22 equipment manufacturer.
23 Q I see.
24 And does OEM have a specialized meaning
25 in your business to refer to people that supply
500 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 personal computers?
2 A No. It usually means our licensees.
3 Q And do your licensees, in part, supply
4 personal computers, sir?
5 A Some of our licensees.
6 Q The licensees to whom you license
7 Windows are suppliers of personal computers, are they
8 not, sir?
9 A If you exclude Windows CE and depending
10 on how you talk about workstations and servers.
11 Q So that if we can get on common ground,
12 the licensees for Windows 95 and Windows 98 would be
13 companies that you would recognize as personal
14 computer manufacturers; is that correct?
15 A Yeah. Almost all the licensees of
16 Windows 95 and Windows 98 are personal computer
17 manufacturers. Some are not, but the overwhelming
18 majority are.
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19 MR. HEINER: Okay. We'll step out and
20 then come back in and talk about next steps.
21 MR. BOIES: Okay.
22 THE VIDEOGRAPHER: Okay. The time is
23 4:03 P.M. We're going off the record.
24
25 * * *
505 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1
2 I hereby declare, under penalty of
3 perjury, that the foregoing answers are true and
4 correct to the best of my knowledge and belief.
5 EXECUTED AT _________________, WASHINGTON,
6 this ______day of _________________, 1998.
7
8
_________________________
9 William Gates
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506 BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 I, Katherine Gale, CSR 9793, a Certified
5 Shorthand Reporter in and for the State of
6 California, do hereby certify:
7 That prior to being examined, the witness named
8 in the foregoing deposition was by me duly sworn to
9 testify the truth, the whole truth, and nothing but
10 the truth;
11 That said deposition was taken before me at the
12 time and place named therein and was thereafter
13 reduced to typewriting under my supervision; that
14 this transcript is a true record of the testimony
15 given by the witness and contains a full, true and
16 correct report of the proceedings which took place at
17 the time and place set forth in the caption hereto as
18 shown by my original stenographic notes.
19 I further certify that I have no
20 interest in the event of the action.
21 EXECUTED this 30th day of August, 1998.
22
23
____________________________
24 Katherine Gale, CSR #9793
25
507
BARNEY, UNGERMANN & ASSOCIATES 1-888-326-5900
Released Pursuant to 15 U.S.C. §30
Summary: “I responded to electoral-vote.com because they mentioned Microsoft as the “good guy”,” writes DaemonFC. “For taking down some ransomware (with lawyers, of course).”
If we’re to believe that Microsoft loves Linux, then we should also believe that Microsoft loved Novell, Microsoft loved Nokia, Microsoft loved Borland, Microsoft loved Java, Microsoft loved Netscape, Microsoft loved Yahoo!
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