Behind Microsoft's Comeuppance


The Trials of Bill Gates and the End of the Microsoft Era

By John Heilemann

HarperCollins -- 246pp -- $25


Microsoft and Its Enemies

By Ken Auletta

Random House -- 436pp -- $27.95

A little less than a year ago, the Justice Dept.'s case against software colossus Microsoft Corp. almost ended with a whimper. On Mar. 2, 2000, during settlement talks brokered by appellate judge Richard A. Posner in Chicago, Microsoft Chairman Bill Gates decided the time had come to cut his losses. Weary from years of sparring with the government, culminating in a trial that gone disastrously wrong for his team, he put his signature on a list of proposed terms for an out-of-court settlement. Since the terms were suggested by Justice, the signature might well have settled the whole thing.

Unfortunately for Microsoft, it did not. Within days, some of the 19 attorneys general who had joined Justice's suit made it clear the restrictions on Microsoft's behavior did not go far enough. And Justice officials began to feel the terms needed more clarification. Posner would come up with four more drafts--18 in all. But none came as close to a deal. The case went back to the trial judge, Thomas Penfield Jackson, who last June ordered that Microsoft be split in two.

This anecdote is one of the most startling to appear in each of two new books about the case, Ken Auletta's World War 3.0: Microsoft and Its Enemies and John Heilemann's Pride Before the Fall: The Trials of Bill Gates and the End of the Microsoft Era. Both cover the trial, which began in late 1998 and culminated in Jackson's order. Both have been brought out speedily, just in time for the appeal. And each author hopes his is seen as the definitive book about the case.

Until U.S. v. Microsoft, antitrust trials were something the publishing world routinely ignored--with good reason, as they tended to be excruciating affairs. In the 1975 trial of IBM, for instance, a clerk spent entire weeks reading transcripts of depositions out loud to the court. A young attorney by the name of David Boies cross-examined an economist for 38 straight days.

But the Microsoft case was different. It featured some irresistible elements--the world's wealthiest person, the world's most highly valued company (for a while at least), mind-boggling corporate expansion, and ubiquitous technology, to name a few things. The story also featured a judge who kept the trial moving and who, along with lawyers from both sides, was willing to speak about the case on the record. Clearly, this is a case with the potential to make pages turn.

Of the two books, Heilemann's is the more engrossing. He has taken one of the most complex trials in history and turned it into a book that reads almost like a thriller--fast-paced and hard to put down. At the same time, Pride Before the Fall does not lack for original reporting or keen insight. Heilemann takes us behind the scenes to show how the anti-Microsoft movement evolved from a few disgruntled Silicon Valley executives into the proverbial federal case. He details the troubles Justice had in getting Microsoft's detractors to testify on the record. And he ushers the reader into many of the bargaining sessions between Justice's lawyers and Microsoft's.

The book's only real fault is that about two-thirds of it can be had at a fraction of the hardcover's cost by picking up the November issue of Wired, where Heilemann is a correspondent. He never set out to write a book. In fact, he didn't even intend to write about the Microsoft case. Pride Before the Fall flowed out of his cover story, itself a "mutant limb" of a piece he had begun on Silicon Valley executives.

The book largely succeeds because it's not about the trial per se, but about everything that went into the litigation. Heilemann explores the unlikely alliance that developed between the government's antitrust chief, Joel I. Klein, and pro-business Senator Orrin Hatch. Perhaps spurred on by Novell and other software companies in his home state, the conservative Utah Republican not only provided political cover for Klein with hearings on Microsoft's aggressive tactics, but he and his staff even tried to help recruit witnesses. Heilemann also offers fascinating little vignettes, such as how Gates, arguably the world's most powerful figure outside of government, broke down in tears during a board meeting, declaring that "the whole world is crashing in on me."

World War 3.0, in contrast, seeks to put the reader inside the courtroom. While the book's attention to detail is admirable, this approach has its problems. Microsoft might have been the most interesting antitrust case ever, but it still was slow and highly technical at times. After a few introductory chapters, Auletta begins with a description of the unremarkable courtroom, then follows the trial, witness by witness. First the prosecution. Then a two-chapter profile of Gates. Then the defense. As the narrative unfolds, one gets the sense of having been assigned to a kind of literary jury duty.

Where Auletta excels is in getting Jackson to open up. World War 3.0 is peppered with his comments about Microsoft and its hard-charging chairman gleaned from 10 hours of interviews with the judge. While Jackson has previously said some highly critical things, his musings to Auletta are among the most incendiary. He calls Gates "Napoleonic" and "arrogant" and describes his company's behavior as "sophomoric." These types of comments could be crucial to the case. In their appeal, Microsoft's lawyers argue that Jackson's comments reveal an anti-Microsoft bias. Auletta's book gives them more to work with.

If this weren't enough, Auletta has gotten Jackson to enter into the ultimate death wish for a trial judge: trashing appeals courts. Higher courts, Jackson says, embellish their rulings with superficial scholarship. Pretty harsh words from a guy who had a previous Microsoft ruling overturned by some of the very same judges who will consider this one.

Both books answer many of the whos, whats, and whens of U.S. v. Microsoft. But both leave room for future accounts about the most profound question: Why did the confrontation happen at all? It was not a case that Klein or Justice wanted to bring. Microsoft almost certainly could have avoided it by making some changes in the way it did business. It didn't have to repeatedly bully computer makers to use its Internet Explorer rather than Netscape Navigator. Gates didn't need to openly mock Justice, as he did on Larry King Live in 1995. And even having done these things, Microsoft could have short-circuited the trial via some modest behavioral changes proposed by the government in 1998, before charges were filed.

Instead of saying why all of this happened, both authors focus on the culture of Microsoft and the deference paid by all there to its chief. In Heilemann's book in particular, Gates appears as a kind of child emperor who thinks he knows everything--about both law and software--and calls all the shots.

Clearly, it's a fascinating case: Imagine, at the end of two lengthy accounts of an antitrust trial, yearning for more.

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