Microsoft top officials may testify

Washington, DC: To make its case against severe sanctions, Microsoft, shifting its previous strategy, has named both Bill Gates, its cofounder and chairman, and Steven A Ballmer, the chief executive, as witnesses in a trial on remedies in the antitrust case it lost, The New York Times has reported.

The opposing sides in the remedies trial Microsoft and nine states exchanged witness lists on 8 February. In addition to Gates, Ballmer and other company executives, the Microsoft list includes 21 expert and industry witnesses including representatives from other software-makers, personal computer manufacturers, an electronics retailer, a telephone company, a cable television company and a venture capital firm.

In the long-running antitrust trial, the company was criticised for not putting Gates, its chief strategist, on the stand. It was also widely second-guessed in legal circles for packing its witness list with Microsoft officials, calling only a couple of outsiders from the industry. A federal appeals court, upholding much of a lower courts ruling and discarding some of it, found last year that Microsoft was a monopolist that had repeatedly engaged in anticompetitive practices.

The first hearing in the remedies trial is scheduled for 11 March, and legal analysts said Microsoft is taking a decidedly different approach this time. "Call this lessons learned from the last trial," said Andrew I Gavil, a professor at the Howard University School of Law. "By offering Gates as a witness and more industry voices, the company seems to be trying to change the face of Microsoft for this trial," Gavil said.

In the antitrust trial, Gates did not appear, but excerpts from his videotaped deposition, in which he appeared evasive, uncooperative, even forgetful, were shown repeatedly. "Gates cant do any worse than he did in the deposition testimony in the first trial," Gavil observed.

In the witness list exchanged, there are asterisks next to the names of Gates, Ballmer and several other Microsoft executives. This designates them as tentative witnesses, who could be withdrawn if the states scale back the scope of their demands for evidence and for additional tough sanctions against Microsoft. Neither Gates nor Ballmer appeared on any witness list in the antitrust trial.

The nine states, including Connecticut and California, in the remedies trial oppose the Bush administrations proposed settlement to the Microsoft antitrust suit. Under that settlement, Microsoft will be prohibited from engaging in a series of anticompetitive practices and will be forced to share technical information with industry partners and rivals.

Half of the 18 states that joined the justice department in suing Microsoft agreed to the settlement announced last November. The nine dissenting states say the governments settlement is backward-looking and does nothing to restrain Microsoft from unfairly using its monopoly power in new markets, including software that plays music and video over the Internet, that runs set-top boxes for digital television and for handheld computers.

In their list, the states named 16 witnesses. A few appeared as witnesses in the antitrust trial, including James Barksdale, former chief executive of Netscape Communications, and Steven McGeady, a former Intel executive. But others are new, including an executive from Palm, a maker of handheld devices; an executive from a set-top box software-maker, and an executive of a distributor of Linux, a computer operating system that is an emerging competitor to Microsofts Windows.

"The states witness list has to be forward-looking because remedies in an antitrust case are about protecting competition in the future," said Herbert Hovenkamp, a professor at the University of Iowa law school.