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It may seem farfetched, but that's precisely what Microsoft charged. On Day Two of the trial, lead Microsoft lawyer John Warden accused Boies of trying to "demonize Bill Gates" and of casting Microsoft as "the great Satan." Bill Gates as Beelzebub is actually a familiar trope in computerland. The Internet is filled with discussion groups debating whether Gates is the devil and Microsoft the Evil Empire. Search the Web for sites that pair the words Gates and Satan, and you'll turn up tens of thousands of hits. Harvard law professor Lawrence Lessig was a court-appointed monitor in an earlier Justice Department suit against Microsoft before Gates' lawyers uncovered an old e-mail in which Lessig joked that when he installed Microsoft's browser on his computer he "sold his soul."
The government never did use the D word, but Justice Department lawyers have good tactical reasons for keeping Gates' own words and deeds at the heart of their case. Justice began its antitrust campaign against Microsoft with a straightforward claim that the company was guilty of improperly "bundling" its Internet Explorer browser into its popular Windows software. Judge Jackson bought the argument, but it was shot down by the D.C. Circuit Court of Appeals--a reversal that Microsoft viewed as decisive. Justice is now making a more wide-ranging argument that there is a pervasive pattern of Microsoft's using its monopoly on PC operating software--Windows--to coerce other companies to do its bidding in a broad array of other business relationships. "It's not necessarily any one contract but the pattern of conduct over the course of time and the cumulative effect that the contracts have," says University of Minnesota Law School dean E. Thomas Sullivan.
To make this kind of economic-bullying case, it helps to have a bully in chief. By pinning anticompetitive actions on Gates directly, Justice can show that those actions had the endorsement of the company itself, and were not carried out by rogue underlings. Personalizing the case also gets Justice out of an ideological quandary. The appeals courts that will probably hear this case--the D.C. Circuit and the Supreme Court--are fairly conservative on antitrust cases. The less the Microsoft case seems to be about antitrust doctrine and the more it is packaged as an attempt to rein in the behavior of a predatory company and CEO, the better Justice is likely to fare on appeal.
Not surprisingly, Microsoft has reacted indignantly to the government's "personal attacks on a visionary and innovator." John Warden, delivering Microsoft's opening statement, contended that Gates and his company had done nothing but engage in the hard-driving competition that is the essence of the free market. "The antitrust laws are not a code of civility in business," Warden told the court. He argued that Justice is trying to fix a software market that isn't broken. Microsoft is not a monopoly because there are few "barriers to entry" stopping would-be competitors from jumping in, Warden maintained. "There are no factories to build, no mineral deposits to locate." All it takes to make software, he said, is "human brains and the capital to support those human brains."