5912 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXII 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:30 a.m., 14 December 20, 2006, in Room 302 of the Polk 15 County Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 5913 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 LINDSEY A. DAVIS 7 Attorney at Law Zelle, Hofmann, Voelbel, 8 Mason & Gette, LLP 500 Washington Avenue South 9 Suite 4000 Minneapolis, MN 55415 10 (612) 339-2020 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5914 1 Defendant by: DAVID B. TULCHIN 2 SHARON L. NELLES Attorneys at Law 3 Sullivan & Cromwell, LLP 125 Broad Street 4 New York, NY 10004-2498 (212) 558-3749 5 STEPHEN A. TUGGY 6 Attorney at Law Heller Ehrman, LLP 7 333 South Hope Street Suite 3900 8 Los Angeles, CA 90071-3043 (213) 689-0200 9 BRENT B. GREEN 10 Attorney at Law Duncan, Green, Brown & 11 Langeness, PC Suite 380 12 400 Locust Street Des Moines, IA 50309 13 (515) 288-6440 14 15 16 17 18 19 20 21 22 23 24 25 5915 1 (The following record was made out 2 of the presence of the jury at 8:29 a.m.) 3 THE COURT: Before we bring the Jury 4 in, I got a letter from Mr. Tulchin regarding 5 my ruling yesterday and it says -- 6 MS. CONLIN: We have no problem with 7 that at all, Your Honor. 8 THE COURT: Yeah, I didn't think so. 9 So it's granted. 10 MR. TULCHIN: Thank you, Your Honor. 11 I appreciate it. 12 THE COURT: Also, do you mind if I 13 tell the Jury what the spring break schedule 14 is? 15 MS. CONLIN: No. That would be great, 16 Your Honor. 17 THE COURT: I have -- someone gave me 18 this -- March 19th through March 23rd. 19 MS. CONLIN: I'm the one who gave that 20 to you, Your Honor. And that's what I 21 understand -- 22 THE COURT: It's only four days? 23 MR. GREEN: It's five. 24 MS. CONLIN: Yeah, those are the 25 working days, not the -- 5916 1 MR. GREEN: Yeah, the five -- yeah, 2 that's right. 3 MS. CONLIN: Now, the one person that 4 I recall that has young children is [Juror Name]. 5 Let me think -- 6 THE COURT: Spring break is only -- 7 MS. CONLIN: Maybe [Juror Name]. No, 8 [Juror Name] doesn't have children. 9 THE COURT: I think it's longer than 10 that. I don't think it's four days. 11 MR. TULCHIN: You were hoping it was. 12 MR. GREEN: No, that's five days, Your 13 Honor. 14 MS. CONLIN: Yeah, it's five. 15 MR. GREEN: 19th through the 23rd is 16 five. 17 MR. TULCHIN: The 16th would be the 18 last day of court? 19 THE COURT: Yeah. 20 MS. CONLIN: And, Your Honor, after 21 court today, I wonder if we could discuss the 22 schedule a little bit. 23 THE COURT: Sure. 24 MS. CONLIN: I'm getting concerned 25 about our very short days. 5917 1 And then I'd like to revisit the whole 2 exhibit issue at least very, very briefly. 3 That might be all that we have, but 4 then when we tell you that -- first of all, 5 we're worried that they'll assign you new 6 cases, you know, for all this extra time that 7 you have, and I just don't know for sure. 8 But those are things that -- 9 THE COURT: And before the day is 10 over, I'll give you my final ruling on your 11 proposed instruction on deposition testimony. 12 MS. CONLIN: Oh, good, yes. Thank 13 you, Judge. 14 THE COURT: I've been working on it. 15 All right. So I can tell them they 16 are off that time period? 17 MR. GREEN: Actually, Friday would be 18 the 16th. 19 MS. CONLIN: Yeah. 20 MR. GREEN: So it's going to be -- 21 THE COURT: Are they off the 16th too? 22 MS. CONLIN: No. 23 MR. GREEN: No. 24 MS. CONLIN: They're not, Your Honor. 25 THE COURT: So it would be -- 5918 1 MR. GREEN: So it would be the 17th 2 through what -- 3 MS. CONLIN: The 23rd. 4 THE COURT: I'll just tell them that 5 week. Those are the working days. 6 MR. GREEN: Those are the working days 7 we are off. 8 THE COURT: I got confused there. 9 And after court today you want to talk 10 about scheduling. Is that it? 11 You wanted to talk today sometime 12 about the trial schedule? 13 MS. CONLIN: The daily schedule. 14 THE COURT: Okay. 15 MS. CONLIN: The short -- the 16 four-hour days that we are having. 17 Here's my concern, and we can do this 18 afterwards. My concern is that live witnesses 19 who are coming -- like I've got Constant coming 20 from England and stuff like that. 21 THE COURT: Oh, we can adjust it 22 somehow. 23 MS. CONLIN: Yeah, but I think we 24 should give them plenty of warning otherwise, 25 you know, they are going to write us notes. 5919 1 THE COURT: All right. Well, we'll 2 talk about it later. 3 MS. CONLIN: Okay. Thanks, Your 4 Honor. 5 THE COURT: I'd like -- you know, once 6 I've told them we quit at 2:30, I'd like to 7 keep to that. 8 MS. CONLIN: Yes. But maybe there's 9 some other way to adjust it. 10 THE COURT: All right. We'll figure 11 it out. Okay. 12 She's going to peek in the door in a 13 minute and let me know -- I'm supposed to let 14 her know. 15 MS. CONLIN: Your Honor, do you want 16 to tell them that we are going to go through 17 the day with Gates and maybe a little bit into 18 tomorrow? 19 THE COURT: Okay. Is that all right? 20 MS. NELLES: That's fine. 21 MS. CONLIN: They like to know where 22 we are and what we are going to be doing next. 23 We've got about a little less than five hours 24 left. 25 MS. NELLES: Count down is four hours 5920 1 and 40 minutes. 2 THE COURT: Or thereabouts. 3 MS. NELLES: Or thereabouts. 4 THE COURT: Could you be more 5 accurate? 6 MS. NELLES: And 32 seconds. 7 THE COURT: Okay. 8 THE CLERK: All rise. 9 (The following record was made in the 10 presence of the jury at 8:35 a.m.) 11 THE COURT: Ladies and gentlemen, just 12 to let you know, the Gates deposition should go 13 through today and a little bit of tomorrow. 14 And I was told there's about four 15 hours and 40 minutes left, so just to let you 16 know. 17 Also, in case you are wondering, I 18 checked with the attorneys and also my court 19 reporters. They're well aware of the spring 20 break in March, okay. And I know some of you 21 have children, want to know. 22 The days we will not meet will be 23 March 19th through the 23rd. That's a Monday 24 through Friday because that coincides with most 25 school spring breaks as far as I know. If 5921 1 that's different, please let me know. 2 Those five days we'll be off. 3 Okay. You may proceed. 4 MS. CONLIN: Thank you, Your Honor. 5 (Whereupon, the following video was 6 played to the jury.) 7 Question: Mr. Gates, you're familiar 8 with a company called RealNetworks, are you 9 not? 10 Answer: Yes. 11 Question: Did you ever have any 12 discussions with any representative of 13 RealNetworks concerning what products 14 RealNetworks should or should not offer or 15 distribute? 16 Answer: No. 17 Question: Microsoft signed two 18 contracts with RealNetworks, did it not, sir? 19 Answer: I have no idea. I thought it 20 was one. 21 Question: RealNetworks was previously 22 called Progressive Networks; correct, sir? 23 Answer: Right. 24 Question: In the contract or 25 contracts, if there was more than one, between 5922 1 Microsoft and RealNetworks, was there any 2 restriction on what services RealNetworks could 3 provide to competitors of Microsoft? 4 Answer: I've never looked at those 5 contracts. 6 Question: Did you participate at all 7 in those contracts, either the negotiation of 8 those contracts or discussions concerning those 9 contracts prior to the time they were entered 10 into? 11 Answer: I knew that Muglia and Maritz 12 were talking with Progressive about some kind 13 of deal, but I didn't know what was in the 14 deal. 15 Question: Did you know anything about 16 what was in the deal? 17 Answer: I knew there was an 18 investment piece. I knew there was some code 19 licensing in it. That's about all. 20 Question: At the time that Microsoft 21 was negotiating the contract or contracts with 22 RealNetworks -- and I'll refer to it as 23 RealNetworks even though at the time it was 24 referred to as Progressive Networks -- did you 25 consider that company to be a competitor of 5923 1 Microsoft? 2 Answer: Not -- I think I was confused 3 about what RealNetworks -- what their plans 4 were, and I wasn't sure if they were a 5 competitor or not. 6 Question: Was there a time when you 7 did become convinced that they were a 8 competitor? 9 Answer: Yes. 10 Question: When was that? 11 Answer: When Rob Glaser appeared in 12 Washington, D.C. 13 Question: To testify before a 14 congressional committee? 15 Answer: Senate, yes. 16 Question: What led you to conclude 17 from Mr. Glaser's testimony that RealNetworks 18 was a competitor of Microsoft? 19 Answer: It was nothing in his 20 testimony. 21 Question: Why did you become 22 convinced at the time of his testimony that 23 RealNetworks was a competitor of Microsoft? 24 Answer: Well, because he went out of 25 his way to lie about us, I sort of thought, 5924 1 hum, he must be a competitor. 2 Question: When you say he went out of 3 his way to lie about you, when was that? 4 Answer: That was at the press 5 interview surrounding the testimony -- maybe 6 the testimony itself, I'm not sure. I've never 7 seen a transcript. 8 Question: Did you ever personally 9 have a conversation with Mr. Glaser about his 10 business? 11 Answer: A long, long time ago when 12 Rob was just getting started, I think there was 13 one meeting that I had with Rob. I haven't met 14 with him since then. 15 Question: Was that meeting before or 16 after the contract between RealNetworks and 17 Microsoft that you say that you know about? 18 Answer: If you mean the contract 19 where we invested in Progressive, it was years 20 before it and not at all related to it. 21 Question: When was the contract in 22 which you invested in Progressive Networks or 23 RealNetworks? 24 Answer: I'm not sure. I'd guess it's 25 about a year ago. 5925 1 Question: Did you have a conversation 2 with Mr. Glaser a few days after that agreement 3 was signed? 4 Answer: Now that you ask me that, 5 maybe I did. 6 Maybe I did. I think we may have had 7 a short meeting. 8 Question: And did you in that meeting 9 tell Mr. Glaser in words or in substance how 10 you thought he should limit his business? 11 Answer: Absolutely not. 12 Question: Not in any way, sir? 13 Answer: Not in any way. 14 Question: Did you tell him he ought 15 to get out of the base streaming media platform 16 business? 17 Answer: No. 18 Question: Did anyone ever tell you 19 that Mr. Glaser had said he would get out of 20 the base streaming media platform business? 21 Answer: No. 22 Question: Did Mr. Maritz ever tell 23 you that Mr. Glaser's stated plan was that he 24 would get out of the base streaming media 25 platform business? 5926 1 Answer: As far as I know, we didn't 2 know what Rob's plans were. 3 Question: Did you ever try to find 4 out what those plans were, sir? 5 Answer: No. 6 Question: Were those plans important 7 to you? 8 Answer: To me personally? No. 9 Question: Were they important to 10 Microsoft? 11 Answer: On a relative basis, I'd say 12 no. 13 Question: Well, I suppose on a 14 relative basis, a business as big as Microsoft, 15 I don't know what would be important, but -- 16 Answer: I can tell you. 17 Question: -- but on a nonrelative 18 basis? 19 Answer: I can tell -- 20 Question: Yes. Tell me what would be 21 important to Microsoft on a relative basis. 22 Answer: Improvements in Windows, 23 improvements in Office, breakthroughs in 24 research, breakthroughs in Back Office. 25 Question: How about browsers? 5927 1 On a relative basis, would that be 2 important -- was that important to Microsoft? 3 Answer: To a degree it relates to 4 Windows, yes. 5 Question: What about Java or Java 6 runtime? Was that on a relative basis 7 important to Microsoft? 8 Answer: To the degree it related to 9 Windows, yes. 10 Question: Let me ask you to look at a 11 document that we have marked Government Exhibit 12 379. 13 This purports to be an e-mail from 14 Paul Maritz. You are not shown on this as 15 receiving a copy. 16 The portion I'm particularly 17 interested in is the last full paragraph that 18 says, quote, Rob's stated plan is that he will 19 get out of the base streaming media platform 20 business, and focus on higher level solutions, 21 hosting, and content aggregation, and says that 22 his goal is now to get us to get his base 23 technology as widespread as possible, close 24 quote. 25 Do you see that? 5928 1 Answer: Uh-huh. 2 Question: Did anyone ever tell you, 3 as Mr. Maritz writes here, that Mr. Glaser had 4 said that his stated plan was that he would get 5 out of the base streaming media platform 6 business? 7 Answer: No. 8 Question: Did you or, to your 9 knowledge, anyone from Microsoft ever tell 10 Mr. Glaser that he should get out of the base 11 streaming media platform business? 12 Answer: No. 13 Question: Okay. 14 You are aware, are you not, sir, that 15 one of the issues in this case is the extent to 16 which operating systems and browsers are or are 17 not separate products? 18 Answer: I'm not a lawyer, so I think 19 it's very strange for me to opine on what's an 20 issue in the case. 21 As far as I know, the issues in the 22 case are not -- are something that you decide, 23 and I don't claim to have any expertise at all. 24 Question: And if you don't know, 25 that's okay. 5929 1 But one of the things that I want to 2 understand from you is whether your 3 understanding, which is important to my next 4 line of questions, is that the issue of whether 5 or not browsers are or are not a separate 6 product from the operating system is in this 7 case. 8 Mr. Gates, do you understand that the 9 issue of whether or not browsers are a separate 10 product or are not a separate product from the 11 operating system is an issue in this case? 12 Answer: I don't consider myself 13 someone who could say if that's an issue in 14 this case or not. 15 Question: Have you participated in 16 any way in trying to get Microsoft personnel to 17 use language that would suggest that browsers 18 and operating systems are not separate 19 products? 20 Answer: I have no idea what you mean 21 by that. 22 Question: Well, have you seen e-mails 23 that urge people within Microsoft not to talk 24 about browsers as if they were separate from 25 the operating system? 5930 1 Answer: I don't recall seeing any 2 such e-mail. 3 Question: Are you aware of anybody 4 within Microsoft who has asserted, either in an 5 e-mail or otherwise, that people ought to not 6 talk about browsers as if they were separate 7 from the operating system? 8 Answer: I don't remember any such 9 e-mail. 10 Question: Has Microsoft tried to get 11 companies to agree to statements that Internet 12 Explorer comprises part of the operating system 13 of Windows 95 and Windows 98? 14 Answer: I know it's a true statement, 15 but I'm not aware of us doing anything to try 16 to get anyone else to endorse the statement. 17 Question: You're not aware of any 18 effort by Microsoft to get non-Microsoft 19 companies to endorse the statement that 20 Internet Explorer comprises part of the 21 operating system of Windows. 22 Is that what you're saying? 23 Answer: I'm not aware of such 24 efforts. 25 Question: Do you know whether 5931 1 Microsoft has made any efforts to include 2 language like that in any of its license 3 agreements? 4 Answer: No, I don't. 5 Question: Do you know why Microsoft 6 might do that? 7 Answer: I'm not sure. 8 Question: Do you recognize that OEMs 9 have a need to acquire the Windows operating 10 system that Microsoft licenses? 11 Answer: What do you mean by OEM? Is 12 it a tautology because of the way you're 13 defining it? 14 Question: Well, if you take IBM and 15 Compaq and Dell, Gateway and some other 16 companies, those are commonly referred to as 17 OEMs or PC manufacturers; correct, sir? 18 Answer: No. The term OEM would be 19 quite a bit broader than that. OEMs used means 20 original equipment manufacturer. 21 Question: I see. 22 And does OEM have a specialized 23 meaning in your business to refer to people 24 that supply personal computers? 25 Answer: No. It usually means our 5932 1 licensees. 2 Question: And do your licensees, in 3 part, supply personal computers, sir? 4 Answer: Some of our licensees. 5 Question: The licensees to whom you 6 license Windows are suppliers of personal 7 computers, are they not, sir? 8 Answer: If you exclude Windows CE and 9 depending on how you talk about workstations 10 and servers. 11 Question: So that if we can get on 12 common ground, the licensees for Windows 95 and 13 Windows 98 would be companies that you would 14 recognize as personal computer manufacturers; 15 is that correct? 16 Answer: Yeah. Almost all of the 17 licensees of Windows 95 and Windows 98 are 18 personal computer manufacturers. 19 Some are not, but the overwhelming 20 majority are. 21 Question: And when you price Windows 22 98 or when you priced Windows 98, what 23 competitive products, if any, did you take into 24 account in setting the price of Windows 98? 25 Answer: Well, we take into account a 5933 1 lot of factors, not just other products. 2 Question: I'm sure that that is so, 3 Mr. Gates. 4 What I'm asking you is what prices of 5 what products, if any, did you take into 6 account in pricing Windows 98? I'm not saying 7 that's the only thing you took into account. 8 I'm just trying to find out whether 9 there were other product prices that you took 10 into account, and if there were, what they 11 were. 12 Answer: We consider all the elements 13 of competition, whether it's the -- the 14 durability of the product, the changes in 15 users' demands, the things going on with 16 computing moving to the server, the things 17 going on with middleware, the things going on 18 with clones, the things going on with other 19 operating systems. 20 There's a great number of factors. At 21 the end of the day, it's not very scientific. 22 We take all those factors and come up with our 23 best judgment. 24 Question: What I'm now asking you is 25 whether there are any products whose prices you 5934 1 took into account in pricing Windows 98. 2 And if the answer to that is yes, I'm 3 going to ask you what products and what their 4 prices were. 5 But, as a preliminary matter, I'm just 6 asking you whether there were such products. 7 Answer: Well, we'd look at all of the 8 other operating systems out there, all of the 9 middleware products that are out there, the 10 general start-up activities out there, the 11 breakthroughs we expect. 12 Some of those aren't, you know, 13 products that are on the market today. Some of 14 them are products that are on the market today. 15 Question: What product did you 16 consider to be your primary or the most 17 important competitive product in pricing 18 Windows 98? 19 Answer: I think it's a silly question 20 because there isn't one single product that 21 stands out above others. 22 And it's not products as much as it is 23 the general nature of competition. 24 Question: Well, can you identify for 25 me either the most important or the most 5935 1 important three products that you took into 2 account in pricing Windows 98? 3 Answer: Well, I guess you could say 4 in a sense, because I decided that the price of 5 Windows 98 would be the same as the price of 6 Windows 95, that that was the product whose 7 pricing had the most influence on the pricing 8 of Windows 98. 9 Question: What was the product other 10 than a Microsoft product, or what were the two 11 or three products other than Microsoft products 12 that most influenced the pricing of Windows 98? 13 Answer: I wouldn't single any one 14 out. I could, you know, talk about several 15 different ones. 16 Question: What I'd like is your best 17 judgment as to what you think, either the most 18 important or the most important three or four 19 or five products were, non-Microsoft products, 20 in pricing Windows 98. Your best present 21 judgment as to what the most important such 22 products were? 23 Answer: Well, I'd say the -- if you 24 look at all the other factors we have to 25 consider, this is just one of many. 5936 1 But certainly we'd look at -- 2 Question: I want the most important. 3 I want what you tell me are the most important. 4 I know you tell me there are many others, these 5 are not the only ones. 6 What I want is your best judgment of 7 what you think the most important ones are. 8 That's all I'm asking for now. 9 Answer: I would look at Linux, Mac 10 OS, Java OS, the whole idea of network 11 computing and of running the applications and 12 the server, which means that you have to think 13 about pricing of server-type operating systems 14 because of the way that the terminal approach 15 can work there so you get intake. 16 You know, server operating systems 17 sort of divide up how many users it can serve. 18 So you divide its cost down and look at that. 19 So you get things like Solaris, AIX and various 20 things that people are doing there. 21 But it's particularly important to 22 think of new products that aren't on the market 23 yet and that we don't know the pricing of. 24 Question: What I'm asking is what you 25 took into account for Windows 98. And I take 5937 1 it the most important ones that at least occur 2 to you right now are what you told me. 3 Is that fair? 4 Answer: Yeah. I've said that that 5 wasn't the major component in how that decision 6 was made. But those are -- those were factors 7 in the decision. 8 Question: Okay. 9 (Whereupon, playing of video 10 concluded.) 11 MS. CONLIN: Your Honor, the next is 12 the deposition of Bill Gates, Volume III, 13 September 2nd, 1998. And we believe that runs 14 about four hours and 12 minutes. 15 THE COURT: Okay. 16 (Whereupon, the following video was 17 played to the jury.) 18 Question: Let me turn to the subject 19 of pricing. 20 Does Microsoft price its Windows 21 operating system the same to each of the OEMs 22 that it licenses? 23 Answer: We negotiate agreements 24 individually with the OEMs and the various 25 terms and prices that are agreed to end up 5938 1 being different for different OEMs. 2 Question: Do some OEMs have more 3 favorable prices and terms than others? 4 Answer: Well, given that they're 5 different, somebody could evaluate, and 6 depending on what criteria they use, decide 7 what they thought of the various ones. 8 It's not easy to do a direct 9 comparison because you have pricing terms and 10 other terms as well. 11 Question: Do some OEMs have prices, 12 terms and conditions that you, Bill Gates, 13 believe are more favorable than the prices, 14 terms and conditions of other OEMs? 15 Answer: Well, it's typical that 16 somebody with larger volume asks for and gets 17 somewhat lower pricing than somebody who 18 doesn't have high volume. There's not a 19 perfect correlation to volume, but there is a 20 correlation there. 21 Question: Other than whatever 22 correlation there is between volume and prices, 23 terms and conditions, are there any OEMs that 24 you believe have more favorable prices, terms 25 and conditions than other OEMs? 5939 1 Answer: I don't know enough about the 2 specific agreements. There are some things in 3 terms of the relationship and marketing that I 4 think IBM has been reluctant to do, so it may 5 be that because of their view of those terms 6 and their decisions on that, IBM may have a 7 somewhat higher price than people with a 8 similar volume, although, you know, their 9 volume is -- nobody has the same volume. 10 Question: What marketing things did 11 IBM decline to do that led to these price 12 differentials? 13 Answer: I'm forgetting the name of 14 the program, but there's -- on a typically 15 yearly basis, there's a program that we talk to 16 OEMs about which weighs into their discount. I 17 don't remember the name of it. 18 Question: What is the marketing 19 program that you're referring to designed to 20 do? 21 Answer: To help us sell more copies 22 of Windows. 23 Question: How? 24 Answer: We'd have to get into the 25 specific elements. You can have OEMs do a 5940 1 better job of marketing the benefits in 2 Windows. You can have them do a better job 3 testing their machine and how it works with 4 Windows. They can make machines that show off 5 particular advantages of Windows. 6 If you want to ask me about a specific 7 aspect of the program, I can go into it, but 8 it's all aimed at advancing the sales of 9 Windows. 10 Question: Perhaps my question wasn't 11 clear, Mr. Gates. 12 What I'm trying to find out is what 13 was it that IBM refused to do that resulted in 14 IBM paying somewhat higher prices for Windows? 15 Answer: I'm not sure specifically, 16 but I know that there's some of the Windows 17 promotional things that I think they didn't 18 sign up for and that other people did decide 19 were good for them. And I think that resulted 20 in IBM not getting a discount where some of the 21 others would have been able to negotiate a 22 discount. 23 Question: Do you know what 24 promotional things IBM declined to do? 25 Answer: I don't remember which ones. 5941 1 And I wasn't involved in that negotiation. 2 Question: Did any of these 3 promotional things that IBM declined to do have 4 anything to do with the browser, Mr. Gates? 5 Answer: Well, they all related to 6 Windows. 7 Question: Is that the best answer you 8 can give me to my question, Mr. Gates? 9 Answer: It's the answer -- I'm not 10 sure what distinction you're making. 11 I mean, to the degree they relate to 12 Windows, they relate to all the features in 13 Windows, including the browser. 14 Question: Well, sir, the term browser 15 is a term that is widely used within Microsoft, 16 or at least was until this year; correct, sir? 17 Answer: We use the term browser, yes. 18 Question: And you personally used the 19 term browser, did you not, sir? 20 Answer: Yes, that term is used in 21 quite a variety of ways. 22 Question: Including by you; correct, 23 sir? 24 Answer: Yes. 25 Question: You've written e-mails 5942 1 about browsers; correct, sir? 2 Answer: I've written e-mails where 3 the term browser was used. I wouldn't say it 4 was necessarily an e-mail about browsers. 5 Question: Have you ever written an 6 e-mail that you considered to be about 7 browsers, sir? 8 Answer: I'll bet there's e-mail where 9 the primary subject relates to browsers. 10 I don't remember a specific piece of 11 e-mail. 12 Question: And when you wrote e-mails 13 using the term browsers, you believed that 14 people would understand what you meant by 15 browsers; correct, sir? 16 Answer: I'm sure there was enough 17 context in the e-mail that I felt I could 18 communicate something of meaning. 19 Question: And you've used the term 20 browser in dealing with people outside of 21 Microsoft, have you not, sir? 22 Answer: Yes. It's a term that I've 23 used both internally and externally. 24 Question: And there are a lot of 25 people outside Microsoft that have written 5943 1 articles about browsers; correct, sir? 2 Answer: There's been articles about 3 browsing and the technology people use for 4 browsing and comparing the different -- how 5 different companies do that. And they used the 6 term browser. 7 Question: Yes. The industry and 8 Microsoft tracks what is referred to as browser 9 market share; correct, sir? 10 Answer: No. 11 Question: No? Does Microsoft track 12 browser market share? 13 Answer: I've seen usage share. 14 Question: You've seen usage share? 15 Answer: Uh-huh. But not -- market 16 share usually refers to something related to -- 17 not in usage. 18 And with browsers, I've seen mostly 19 usage. 20 Now, some people might refer to that 21 as a market share, but it's not a market share. 22 Question: What is a market share? 23 Answer: Well, when I think of a 24 market share, I think of where you're comparing 25 the revenue of one company to the revenue of 5944 1 another company. 2 Question: The total revenue of a 3 company? 4 Answer: No, the revenue related to 5 one company's product to the revenue of another 6 company's product. 7 Question: And that's what you think 8 of when you use the term market share. 9 Is that your testimony? 10 Answer: Usually. 11 Question: Are you aware of documents 12 within Microsoft that describe browser share as 13 the company's number one goal? 14 Answer: No. I'm aware of documents 15 within Paul Maritz's group that may have stated 16 that. 17 Question: Is Paul Maritz's group 18 within Microsoft? 19 Answer: Yes, but his -- he doesn't 20 set the company-wide goals. 21 Question: Mr. Maritz you identified 22 last week as being a group vice president; is 23 that correct? 24 Answer: Uh-huh. Several times. 25 Question: And he is the group vice 5945 1 president with responsibility for Windows; is 2 that correct? 3 Answer: That's among his 4 responsibilities. 5 Question: And included in his 6 responsibilities was Internet Explorer; is that 7 correct? 8 Answer: Our browsing technology was 9 part of that group. 10 Question: Was Internet Explorer part 11 of that group? 12 Answer: Yes. 13 Question: Now, did you ever tell 14 Mr. Maritz that browser share was not the 15 company's number one goal? 16 Answer: No. 17 Question: You knew Mr. Maritz was 18 telling people that browser share was the 19 company's number one goal, did you not, sir? 20 Answer: I knew that Mr. Maritz was 21 saying to people that the -- that a top goal 22 and perhaps number one goal for his group was 23 browser usage share. 24 Question: Now, you've put in the 25 words usage share there. 5946 1 When Mr. Maritz was telling people 2 that browser share was the number one goal, was 3 Mr. Maritz saying browser usage share or just 4 browser share, sir? 5 Answer: You'd have to ask him. I 6 think he meant usage share. 7 Question: I'm not asking what he 8 meant. 9 And perhaps my question was unclear. 10 I'm asking what he said or wrote. 11 Do you understand the question? 12 Answer: What writings are we talking 13 about? 14 Question: Let me ask you the 15 question, Mr. Gates, since you're the witness. 16 Are you aware of any time that 17 Mr. Maritz wrote in an e-mail or said or 18 otherwise communicated to people that browser 19 share was the number one goal? 20 Answer: The number one goal for what? 21 Question: Just the number one goal 22 for the company, let's start with that. 23 Are you aware of any time when 24 Mr. Maritz said that? 25 Answer: Where he said it was the 5947 1 number one goal for the whole company? 2 Question: I didn't say the whole 3 company. I didn't put in the word whole, 4 Mr. Gates. 5 And I know that you're very precise in 6 the way you use words, so I want to make sure 7 the questions and answers meet. 8 The question is, are you aware of any 9 instance in which Mr. Maritz, in words or in 10 substance, communicated that browser share was 11 the number one goal for the company? And by 12 the company, I mean Microsoft. 13 Answer: I don't remember any such 14 case. 15 Question: Are you aware of any 16 instance in which Mr. Maritz communicated in 17 words or in substance that browser share was 18 the number one goal for his group? 19 Answer: I think there was a point 20 where he did that. I don't remember the 21 document, but I think there was a point. 22 Question: Do you know why Mr. Maritz 23 came to the view that browser share was the 24 number one goal? 25 Answer: For his group? 5948 1 Question: Did he say for his group in 2 the communications -- 3 Answer: Well -- 4 Question: -- that you're talking 5 about? 6 Answer: It's not his position to set 7 goals for the entire company, so when he says 8 something that's a goal, it's certainly implied 9 it's a goal for his group. 10 Question: Interpreting what 11 Mr. Maritz has communicated in light of that, 12 do you know how Mr. Maritz came to the view 13 that browser share was the number one goal? 14 Answer: Well, I think he was aware of 15 the increasing popularity of the Internet and 16 the growing usage of the Internet and felt that 17 all the many, many innovations we were doing in 18 Windows, that a particular focus had to be 19 doing the best job on the Internet and Internet 20 browsing features of the operating system and 21 seeing if we could innovate enough to make 22 people prefer to use that technology from us. 23 Question: Mr. Gates, isn't it the 24 case that you told Mr. Maritz that browser 25 share was a very, very important goal and 5949 1 that's why he believed it? 2 Answer: I guess now we're delving 3 into the inner workings of Paul Maritz's mind 4 and how he comes to conclusions? 5 Question: Well, let me try to ask you 6 a question that won't inquire you to delve into 7 anybody else's mind. 8 Did you tell Mr. Maritz that browser 9 share was a very, very important goal? 10 Answer: I know we talked about 11 browser share being important. 12 Question: I'm not asking you what he 13 said to you. I'm not asking what topic you 14 talked about. I'm asking you whether you told 15 Mr. Maritz that browser share was a very, very 16 important goal? 17 Answer: I remember that we agreed 18 that it was an important goal. I'm not sure 19 which one of us reached that feeling before the 20 other. 21 Question: Have you communicated to 22 people other than Mr. Maritz within Microsoft 23 that browser share was a very, very important 24 goal? 25 Answer: Well, you've used several 5950 1 times the very, very. And I don't know if 2 you're asking me specifically about sometime 3 where I used the words very, very, is that the 4 question? 5 Question: Let me begin with that 6 question. 7 Have you communicated to people within 8 Microsoft, other than Mr. Maritz, that browser 9 share was a very, very important goal, using 10 those words? 11 Answer: I don't remember using those 12 words. 13 Question: Have you communicated the 14 substance of that to people within Microsoft? 15 Answer: Help me understand. If you 16 communicate to people that something is 17 important, is the substance of that identical 18 to communicating to them it's very, very 19 important? 20 Question: Would it be, in your view, 21 Mr. Gates, if you were using those terms, would 22 important be the same as very, very important? 23 Answer: Not identical. 24 Question: What would be the 25 difference? 5951 1 Answer: The two very's. 2 Question: And what significance in 3 terms of substance would those two very's have? 4 Answer: A speaker's tendency towards 5 hyperbole. 6 Question: Other than your tendency, 7 if you have one, to a hyperbole, would there be 8 anything different that you would be 9 communicating to people if you were to say 10 browser share is an important goal or browser 11 share is a very, very important goal? 12 Answer: You'd have to look at the 13 context to see. 14 Question: As you sit here now, what 15 you've told me is that you recall communicating 16 that browser share was an important goal, but 17 not a very, very important goal. 18 And all I'm trying to do is find out 19 whether you draw a distinction in terms of the 20 substance of those communications. 21 Answer: And I said, it would depend 22 on the context. 23 Question: Let me ask you to look at 24 at least one context, and that would be Exhibit 25 358 that we marked during your deposition last 5952 1 week. And it is in the stack of exhibits that 2 you have in front of you. 3 Did you write Exhibit 358, Mr. Gates, 4 on or about January 5, 1996? 5 Answer: I don't remember doing so 6 specifically, but it appears that I did. 7 Question: And the first line of this 8 is, winning Internet browser share is a very, 9 very important goal for us. 10 Do you see that? 11 Answer: I do. 12 Question: Do you remember writing 13 that, sir? 14 Answer: Not specifically. 15 Question: Now, when you were 16 referring there to Internet browser share, what 17 were the companies who were included in that? 18 Answer: There's no companies included 19 in that. 20 Question: Well, if you're winning 21 browser share, that must mean that some other 22 company is producing browsers and you're 23 comparing your share of browsers with somebody 24 else's share of browsers. 25 Is that not so, sir? 5953 1 Answer: You asked me if there are any 2 companies included in that and now -- I'm very 3 confused about what you're asking. 4 Question: All right, sir. Let me see 5 if I can try to clarify it. 6 You say here, quote, winning Internet 7 browser share is a very, very important goal 8 for us, close quote. 9 What companies were supplying browsers 10 whose share you were talking about? 11 Answer: It doesn't appear that I'm 12 talking about any other companies in that 13 sentence. 14 Question: Well, sir, is a market 15 share something that is compiled only for one 16 company? 17 I understand if a company has a 18 monopoly, that may be so, but in a usual 19 situation where a company does not have a 20 monopoly, share ordinarily implies comparing 21 how much of a product one company has with how 22 much of a product another company has; correct? 23 Answer: Yes. 24 Question: Now, when you were talking 25 about Internet browser share here, what 5954 1 companies were you talking about? 2 Answer: You're trying -- you seem to 3 be suggesting that just because share involves 4 comparing multiple companies, that when I wrote 5 that sentence, I was talking about other 6 companies. 7 It doesn't appear that I'm talking 8 about other companies in that sentence. I've 9 really read it very carefully, and I don't 10 notice any other companies in there. 11 Question: Oh, you mean you don't see 12 any other company mentioned in that sentence. 13 Is that what you're saying? 14 Answer: The sentence doesn't appear 15 to directly or indirectly refer to any other 16 companies. 17 Question: When you refer to an 18 Internet browser share here, sir, what is the 19 share of? 20 Answer: Browser usage. 21 Question: Of course, you don't say 22 browser usage here, do you, sir? 23 Answer: No, it says share. 24 Question: Now, let's say that you 25 meant browser usage because that's what your 5955 1 testimony is. 2 What browser usage were you talking 3 about in terms of what your share of browser 4 usage was? What browsers? 5 Answer: I'm not getting your 6 question. 7 Are you trying to ask what I was 8 thinking when I wrote this sentence? 9 Question: Let me begin with that. 10 What were you thinking when you -- 11 Answer: I don't remember specifically 12 writing this sentence. 13 Question: Does that mean you can't 14 answer what you were thinking when you wrote 15 the sentence? 16 Answer: That's correct. 17 Question: So since you don't have an 18 answer to that question, let me put a different 19 question. 20 Answer: I have an answer. The answer 21 is I don't remember. 22 Question: Okay. You don't remember 23 what you meant. 24 Let me try to ask you -- 25 Answer: I don't remember what I was 5956 1 thinking. 2 Question: Is there a difference 3 between remembering what you were thinking and 4 remembering what you meant? 5 Answer: If the question is what I 6 meant when I wrote it, no. 7 Question: Okay. So you don't 8 remember what you were thinking when you wrote 9 it and you don't remember what you meant when 10 you wrote it. Is that fair? 11 Answer: As well as not remember 12 writing it. 13 Question: Okay. Now, let me go on to 14 another paragraph and see whether you remember 15 writing that or not. 16 And that is the second paragraph, 17 which reads, quote, apparently a lot of OEMs 18 are bundling non-Microsoft browsers and coming 19 up with offerings together with Internet 20 service providers that get displayed on their 21 machines in a FAR -- and you've capitalized 22 each of the letters in far -- more prominent 23 way than MSN or our Internet browser, close 24 quote. 25 Do you see that? 5957 1 Answer: Uh-huh. 2 Question: Did you write that 3 sentence, Mr. Gates? 4 Answer: I don't remember, but I have 5 no reason to doubt that I did. 6 Question: Do you remember what you 7 were thinking when you wrote that sentence or 8 what you meant when you wrote that sentence? 9 Answer: No. 10 Question: Do you remember that in 11 January, 1996, a lot of OEMs were bundling 12 non-Microsoft browsers? 13 Answer: I'm not sure. 14 Question: What were the non-Microsoft 15 browsers that you were concerned about in 16 January of 1996? 17 Answer: What's the question? You're 18 trying to get me to recall what other browsers 19 I was thinking about when I wrote that 20 sentence? 21 Question: No, because you've told me 22 that you don't know what you were thinking 23 about when you wrote that sentence. 24 Answer: Right. 25 Question: What I'm trying to do is 5958 1 get you to tell me what non-Microsoft browsers 2 you were concerned about in January of 1996. 3 Answer: If it had been only one, I 4 probably would have used the name of it. 5 Instead, I seem to be using the term 6 non-Microsoft browsers. 7 Question: My question is, what 8 non-Microsoft browsers were you concerned about 9 in January of 1996? 10 Answer: I'm sure -- what's the 11 question? Is it -- are you asking me about 12 when I wrote this e-mail or what are you asking 13 me about? 14 Question: I'm asking you about 15 January of 1996. 16 Answer: That month? 17 Question: Yes, sir. 18 Answer: And what about it? 19 Question: What non-Microsoft browsers 20 were you concerned about in January of 1996? 21 Answer: I don't know what you mean 22 concerned. 23 Question: What is it about the word 24 concerned that you don't understand? 25 Answer: I'm not sure what you mean by 5959 1 it. 2 Question: Is -- 3 Answer: Is there a document where I 4 used that term? 5 Question: Is the term concerned a 6 term that you're familiar with in the English 7 language? 8 Answer: Yes. 9 Question: Does it have a meaning that 10 you're familiar with? 11 Answer: Yes. 12 Question: Using the word concerned 13 consistent with the normal meaning that it has 14 in the English language, what Microsoft -- or 15 what non-Microsoft browsers were you concerned 16 about in January of 1996? 17 Answer: Well, I think I would have 18 been concerned about Internet Explorer, what 19 was going on with it. We would have been 20 looking at other browsers that were in use at 21 the time. 22 Certainly, Navigator was one of those. 23 And I don't know which browser AOL was using at 24 the time, but it was another browser. 25 Question: What I'm asking, Mr. Gates, 5960 1 is what other browsers or what non-Microsoft 2 browsers were you concerned about in January of 3 1996? 4 I'm not asking what you were looking 5 at, although that may be part of the answer, 6 and I don't mean to exclude it, but what 7 non-Microsoft browsers were you concerned about 8 in January of 1996? 9 Answer: Well, our concern was to 10 provide the best Internet support, among other 11 things, in Windows. 12 And in dealing with that concern, I'm 13 sure we looked at competitive products, 14 including the ones I mentioned. 15 Question: Let me try to use your 16 words and see if we can move this along. 17 What competitive products did you look 18 at in January of 1996 in terms of browsers? 19 Answer: I don't remember looking at 20 any specific products during that month. 21 Question: Were there specific 22 competitive products that in January of 1996 23 you wanted to increase Microsoft's share with 24 respect to those products? 25 Do you understand the question, 5961 1 Mr. Gates? 2 Answer: I'm pausing to see if I can 3 understand it. 4 Question: If you don't understand it, 5 I'd be happy to rephrase it. 6 Answer: Go ahead and rephrase it. 7 I probably could have understood it if 8 I thought about it, but go ahead. 9 Question: In January, 1996, you were 10 aware that there were non-Microsoft browsers 11 that were being marketed; is that correct? 12 Answer: I can't really confine it to 13 that month, but I'm sure in that time period I 14 was aware of other browsers being out. 15 Question: And were those 16 non-Microsoft browsers, or at least some of 17 them, being marketed in competition with 18 Microsoft's browser? 19 Answer: Users were making choices 20 about which browser to select. 21 Question: Is the term competition a 22 term that you're familiar with, Mr. Gates? 23 Answer: Yes. 24 Question: And does it have a meaning 25 in the English language that you're familiar 5962 1 with? 2 Answer: Any lack of understanding of 3 the question doesn't stem from the use of that 4 word. 5 Question: And you understand what is 6 meant by non-Microsoft browsers, do you not, 7 sir? 8 Answer: No. 9 Question: You don't? Is that what 10 you're telling me? You don't understand what 11 that means? 12 Answer: You'll have to be more 13 specific. 14 What -- 15 Question: Do you understand what is 16 meant by non-Microsoft browsers? 17 Answer: In the right context, I'd 18 understand that. 19 Question: Is the term non-Microsoft 20 browser a term that you think has a reasonably 21 common and understandable meaning in the 22 industry? 23 Answer: Yes. It's only the scope of 24 what you'd include in it that would vary 25 according to the context. 5963 1 Question: Okay. That is, in some 2 context you'd include more and in some context 3 you'd include less? 4 Answer: That's right. 5 Question: When you refer to 6 non-Microsoft browsers generally, are there 7 particular browsers that you have in mind? 8 Answer: There are many that I would 9 include in that. And as I said, it would be 10 broader depending on the context. 11 Question: Do all of the non-Microsoft 12 browsers that you're aware of compete with 13 Internet Explorer? 14 Answer: In the sense that users 15 select which browsers they want to use, yes. 16 Question: Let's focus on January of 17 1996. 18 What were the non-Microsoft browsers 19 that, in your view, were competing with 20 Internet Explorer in January of 1996? 21 Answer: Well, users could choose from 22 a number of browsers, including the original 23 Mosaic browser, the Netscape Navigator, and I 24 don't know what version they had out at the 25 time. The AOL browser. And some others that 5964 1 were in the market. 2 Question: And using the term as you 3 used the term, were all of those three browsers 4 competing with Internet Explorer in January of 5 1996? 6 Answer: In the sense that users could 7 choose to use them or use Internet Explorer, 8 yes. 9 Question: I want to use it the way 10 you use it, not the way somebody else might use 11 it, Mr. Gates. 12 What I want to know is in January, 13 1996, did you consider Mosaic, Navigator and 14 AOL's browser as all competing with Internet 15 Explorer? 16 Answer: In the sense that users could 17 select one of those others to choose, yes. 18 Question: Is that the only sense that 19 you use the term competition? 20 Answer: No. 21 Question: What I want to do is I want 22 to focus on competition the way you use it in 23 the ordinary operation of your business. 24 Answer: And one of the senses is 25 whether people choose to use our way of 5965 1 providing a feature or if they choose to get 2 additional software to provide them with that 3 feature. 4 Question: And was that the choice 5 that users were making between Internet 6 Explorer and the AOL browser in January of 7 1996, Mr. Gates? 8 Answer: Users can choose between 9 those two. 10 Question: Were they making that 11 choice, Mr. Gates, so far as you're aware? 12 Answer: Some were, yes. 13 Question: And some were choosing the 14 AOL browser instead of Internet Explorer. 15 That's your testimony? 16 Answer: Well, people can switch at 17 any time and they can intermix their usage. 18 Some people choose to primarily use the AOL 19 browser. 20 Question: Instead of Internet 21 Explorer is your testimony? 22 Answer: When I say primarily, that 23 means it got most of their usage share and that 24 means nothing else does. 25 Let's take somebody who exclusively 5966 1 would have used the AOL browser. I can't name 2 anybody like that, but I'm sure there were 3 people like that. That would mean they weren't 4 using the Internet Explorer technologies in 5 Windows. 6 Question: And because of that, as you 7 use the term competition, you would consider 8 that a competitive alternative? That's what 9 you said; is that correct? 10 Answer: In terms of competing for 11 usage share, yes. 12 Question: And what you've testified 13 is that when you use browser share, you meant 14 usage share; correct? 15 Answer: That's right. 16 Question: So that as you use the term 17 browser share, it is your testimony that in 18 January of 1996 Microsoft was competing for 19 browser share with Mosaic, Navigator, and AOL's 20 browser; correct? 21 Answer: In the sense that users would 22 choose to use one of those in varying degrees, 23 yes. 24 Question: But in terms of what you 25 meant by browser share, that was what you 5967 1 considered to be competition in January of 2 1996; correct? 3 Answer: That we were competing to see 4 who could make the better browser that users 5 would choose to take advantage of, yes. 6 Question: And you were competing with 7 the supplier of Mosaic and the supplier of 8 Navigator and the supplier of AOL's browser to 9 do that; is that your testimony? 10 Answer: I know we were interested in 11 making our browser attractive so that we'd gain 12 higher usage share. 13 Question: Higher usage share compared 14 to -- 15 Answer: All the other browsers, 16 including particularly those browsers. 17 Question: Okay. Now, in January of 18 1996, did you consider any one of those three 19 browsers to be a stronger or more important 20 competitor than any of the others? 21 Answer: It's hard for me to pin it 22 down to January, 1996. 23 At some point we definitely thought of 24 the Netscape browser as the number one in terms 25 of how our Windows browsing would be compared 5968 1 by users and which they would select. 2 Question: Have you finished your 3 answer? 4 Answer: Uh-huh. 5 Question: When did you first consider 6 Netscape's browser to be your primary or most 7 important non-Microsoft browser with which 8 Internet Explorer was competing? 9 Answer: I think by late 1995 we 10 thought of Navigator as competing both with -- 11 well, competing with Windows broadly, including 12 the Internet capabilities of Windows. 13 Question: Prior to late 1995, did you 14 think of the Netscape browser as competing 15 either broadly with Windows or with Internet 16 Explorer? 17 Answer: No. I think prior to that, 18 we were unclear about whether that was the 19 case. 20 THE COURT: Take a break at this time. 21 Remember the admonition previously 22 given. 23 We'll be in recess for approximately 24 10, 15 minutes. 25 You can leave your notebooks here. 5969 1 (A recess was taken from 9:47 a.m 2 to 10:09 a.m.) 3 THE CLERK: All rise. 4 THE COURT: [Juror Name], you will let us 5 know if there's anything we need to do. 6 [Juror Name]: I'll let you know. 7 THE COURT: You have our condolences. 8 [Juror Name]: Thank you. 9 (Whereupon, the following video 10 resumed playing to the jury.) 11 Question: Let me try to go back now 12 to the first sentence in your memo of January 13 5, 1996, that has been marked as Exhibit 358 14 where it says, winning Internet browser share 15 is a very, very important goal for us. 16 Does the prior discussion that we've 17 just had refresh your recollection that you 18 would have been referring primarily there to 19 the goal of gaining market share versus 20 Netscape? 21 Answer: You keep trying to read 22 Netscape into that sentence, and I don't see 23 how you can do that. 24 Question: I just really want to get 25 your testimony, Mr. Gates. 5970 1 Answer: Okay. 2 Question: And that is, when you 3 wrote, winning Internet browser share is a 4 very, very important goal for us, in January, 5 1996, were you referring primarily to gaining 6 market share compared to Netscape? 7 Answer: I've testified I don't 8 remember what I was thinking when I wrote that 9 sentence. 10 Question: If you can't remember what 11 you meant when you wrote that sentence, do you 12 at least remember that in January, 1996, 13 winning Internet browser share was an important 14 goal for Microsoft? 15 Answer: Yes. 16 Question: And with respect to the 17 goal of winning Internet browser share in 1996, 18 was that goal primarily to gain share compared 19 to Netscape? 20 Answer: Not necessarily. 21 Question: When you talk about winning 22 browser share, not necessarily just in this 23 document, but, generally, you're referring to 24 gaining market share compared to other 25 competitors; correct? 5971 1 Answer: Or any new products that come 2 along. 3 Question: That are competitive; 4 correct? 5 Answer: That people use for that 6 function. 7 Question: In January of 1996, was it 8 the case that the most important competitive 9 product to Internet Explorer was Netscape's 10 browser? 11 Answer: I think by this time the 12 browser that had the highest usage share was 13 Netscape's Navigator. 14 MR. BOIES: Would you read the 15 question back, please? 16 (Requested portion of the record 17 was read.) 18 Question: Can you answer that 19 question, sir? 20 Answer: In terms of users picking 21 browsers, the product that was on the market 22 that competed for usage the most in this time 23 period was probably Netscape's Navigator. 24 Question: Okay. Was the fact that 25 you've just described a fact that caused you 5972 1 and Microsoft to want to study Netscape and 2 determine how you could reduce Netscape's 3 ability to compete? 4 Answer: I don't know what you mean by 5 that. 6 Question: In or about January of 1996 7 or thereafter, did Microsoft try to study 8 Netscape to determine how you could reduce 9 Netscape's ability to compete? 10 Answer: I don't know what you mean by 11 that. 12 Question: Let me try to break it up 13 into as small a pieces as I can. 14 In or about January, 1996, or 15 thereafter, did Microsoft, to your knowledge, 16 undertake to try to study Netscape as a 17 company, including where its revenues came 18 from, what its dependencies were, what it 19 needed to remain viable? 20 Answer: I'm sure we looked at their 21 revenue. And I'm sure we looked at their 22 products and their organizational structure. 23 Question: Was that in whole or in 24 part a result of an attempt to find out what 25 their vulnerabilities were, Mr. Gates? 5973 1 Answer: Did you end the question? 2 Question: Both your counsel and I 3 thought so. 4 Answer: Okay. 5 Question: But if you don't understand 6 it, I'll rephrase it. 7 Answer: We were interested in 8 learning what users liked about their products 9 and what kind of response customers had. 10 Question: For my present question, 11 I'm not asking about learning about their 12 products just for the sake of learning about 13 their products. 14 What I'm asking about is whether you 15 were trying to figure out where Netscape's 16 dependencies were so that you could attack 17 Netscape and render Netscape a less effective 18 competitor? 19 Answer: We were interested in 20 building a product that users would prefer over 21 them. 22 Question: My question, sir, is 23 whether in addition to whatever you did to 24 improve your product, were you also attempting 25 to ascertain what Netscape's dependencies were 5974 1 so that you could attempt to render Netscape 2 less viable, less able to compete with 3 Microsoft? 4 Answer: We gathered information about 5 Netscape like we do a number of companies we 6 compete with, including IBM, Sun, Novell and 7 many others. 8 Question: Have you finished your 9 answer? 10 Answer: I have. 11 Question: I'm now asking you about 12 Netscape in particular, and I'm asking you 13 whether you gathered information about Netscape 14 for the purpose, in whole or in part, to 15 determine what Netscape's dependencies were so 16 that you could then try to attack those 17 dependencies and render Netscape a less viable 18 competitor? 19 Answer: It's the compoundness of the 20 question that makes it so confusing. 21 Question: Okay. Is the question so 22 confusing that you really think you can't 23 answer it? 24 Answer: It's the compoundness that 25 makes it so confusing that I don't think I can 5975 1 give you a good answer. 2 Question: All right. You gathered 3 information about Netscape; correct? 4 Answer: People in the company did. I 5 didn't personally. 6 Question: Well, you asked them to 7 gather information about Netscape; correct, 8 sir? 9 Answer: I didn't initiate any 10 particular gathering of information. I may 11 have asked questions once I was presented some 12 information. 13 Question: You told people that you 14 wanted them to gather information concerning 15 such things as Netscape's revenues and head 16 count and how much revenues they got from 17 various sources, things like that, did you not, 18 sir? 19 Answer: No. I already -- we already 20 talked about the fact that there was a normal 21 competitive review done of a number of 22 companies, and I didn't initiate that 23 particular review. 24 MR. BOIES: Let me mark as the next 25 exhibit, which will be Government Exhibit 380, 5976 1 a document that I will give you a copy of and 2 give your counsel copies of. 3 Question: The first page of Exhibit 4 380 contains what purports to be a message from 5 you dated December 1, 1996. 6 Do you see that, sir? 7 Answer: Yes. 8 Question: Did you write that message? 9 Answer: We've already discussed this 10 particular message. 11 As I said when we discussed it before, 12 I don't remember specifically sending that 13 message, but I don't have any reason to doubt 14 that I did. 15 Question: Do you see the first 16 paragraph of this message that says, what kind 17 of data do we have about how much software 18 companies pay Netscape? 19 Answer: It's weird that you're 20 repeating this exhibit without the enclosures 21 to the e-mail. I think it's very misleading to 22 have the version of the document -- 23 You had the real exhibit earlier. Did 24 you lose it? 25 Question: Now, first of all, let's 5977 1 see if we can reach some agreement. 2 Is Exhibit 353 the other exhibit that 3 you were referring to? 4 Answer: Yes. 5 Question: All right. And Exhibit 6 353, the e-mail from you, is the same as the 7 e-mail on Exhibit 380, but Exhibit 353 has an 8 additional e-mail; is that correct? 9 Answer: No. 10 Question: Okay. Let me try to go 11 through Exhibit 353. 12 The first e-mail on Exhibit 353 is an 13 e-mail from Mr. Ballmer to you and others; 14 correct? 15 Answer: Right. 16 Question: The second e-mail is an 17 e-mail from you dated December 1, 1996, at 9:24 18 p.m.; correct? 19 Answer: Yes. 20 Question: And there is a third e-mail 21 from Mr. Nehru dated November 27, 1996, at 22 11:54 a.m.; correct? 23 Answer: Well, it's not a separate 24 e-mail. It's part of my e-mail. 25 Question: Well, sir, let me try to 5978 1 see if we can get this straight. 2 And we'll read this whole thing into 3 the record if we have to. 4 Answer: I can explain what you're 5 confused about. 6 Question: I'm not confused, 7 Mr. Gates. Indeed, I think I stated it 8 accurately, if you want to start talking about 9 what I think. 10 But my function is to ask you 11 questions and your function is to give me 12 answers to the questions. And neither of our 13 functions are to debate the other at this 14 point. 15 Exhibit 353 starts with an e-mail 16 dated December 1, 1996, from Mr. Ballmer to 17 you; correct? 18 Answer: There's only one e-mail in 19 here, which is the one from Steve, which has 20 two e-mails enclosed in it. 21 Question: Well, what is enclosed here 22 are two additional e-mails; correct, sir? 23 Answer: They're part of Steve's 24 e-mail. 25 Question: That is, Steve -- and by 5979 1 Steve you mean Mr. Ballmer; correct? 2 Answer: Yes. 3 Question: -- is sending around with 4 his e-mail two earlier e-mails; correct? 5 Answer: They're part of his e-mail. 6 Question: When you say they're part 7 of his e-mail, he didn't write them, did he, 8 sir? 9 Answer: No, but they're part of his 10 e-mail. 11 Question: That is, he is sending them 12 around? 13 That's what I said three times. He is 14 sending them around with his e-mail. He wrote 15 something and in addition to what he wrote, he 16 is sending around what two other people wrote 17 earlier; correct, sir? 18 Answer: It's part of his 19 communication. It's not separate. 20 Question: I don't know what you mean 21 by part or separate and neither one of those 22 were in my question, Mr. Gates. 23 My question is, Mr. Ballmer wrote an 24 e-mail that he sent around and with that e-mail 25 he sent around two earlier e-mails. 5980 1 That's clearly what's going on here; 2 right, sir? 3 Answer: He only sent one thing. 4 Question: All right, sir. 5 The first line on Exhibit 353 says 6 Leslie Halverson (LCA); correct, Mr. Gates? 7 Answer: Yes. 8 Question: Okay. The next line says 9 from Steve Ballmer. The next line says sent, 10 Sunday, December 1, 1996, 9:25 p.m. and then 11 to: Bill Gates, Amar Nehru. 12 Answer: Does yours say 9:25? 13 Question: Well, on 353, it looks like 14 9:26. 15 Answer: Right. And you said 9:25. 16 Question: Okay, then I misspoke. 17 With that amendment, it is correct, 18 though; correct? 19 Answer: That's right. 20 Question: Okay. And it then goes 21 down six more lines, and then there is a line 22 that says original message; correct? 23 Answer: Right. 24 Question: And that says from Bill 25 Gates; correct? 5981 1 Answer: That's right. 2 Question: And it says you sent it 3 Sunday, December 1, 1996, at 9:24 p.m.; 4 correct? 5 Answer: That's right. 6 Question: And then it goes down one, 7 two, three, four, five, six, seven, eight, 8 nine, ten lines and then there is another line 9 that says original message; correct, sir? 10 Answer: That's right. 11 Question: And that says it is from 12 Mr. Nehru; correct? 13 Answer: Yes. 14 Question: And it says it was sent on 15 Wednesday, November 27, 1996, at 11:54 a.m.; 16 correct, sir? 17 Answer: Right. 18 Question: Now, the portion that 19 follows your line that says, I don't think this 20 analysis needed to be sent to so many people, 21 that's the last line before the line that says 22 original message from Mr. Nehru; correct? 23 Answer: That's right. 24 Question: Everything after your line 25 saying I don't think this analysis needed to be 5982 1 sent to so many people has been blocked out on 2 Exhibit 380; correct, and replaced with a stamp 3 that says privileged material redacted? 4 Answer: Do I still have 380? 5 Question: Unless you have eaten it. 6 It was the one we just marked a few 7 moments ago, a few minutes ago. 8 In any event, your counsel has in 9 front of him another copy of it. 10 Answer: Yes. 11 Question: And we'll use that copy. 12 Answer: Yeah. It looks like they're 13 the same except that they deleted the part of 14 my message where I enclosed the information 15 from Amar. 16 Question: When you say you enclosed 17 the information from Amar, you mean where you 18 enclosed Mr. Amar's e-mail? 19 Answer: As part of my e-mail. 20 Question: Word for word? 21 Answer: Yes. It appears to be his 22 e-mail word for word. 23 Question: Okay. I was just trying to 24 make sure the record is clear. 25 The November 27, 1996 Nehru e-mail 5983 1 that you sent around is headed Netscape 2 revenues; correct, sir? 3 And it is a discussion of an analysis 4 of Netscape's revenues? 5 Answer: I didn't send it around. 6 Amar sent it around. I enclosed it. 7 Question: I thought we established 8 that you then sent it around. 9 Answer: I enclosed it, yes. 10 Question: When you say you enclosed 11 it, that means it's enclosed with what you have 12 written so that it goes around to everybody 13 that your e-mail is directed to; correct? 14 Answer: Well, Amar had already sent 15 it to quite a large superset of the people I 16 copied on my e-mail, so he sent it to them. 17 Question: He sent it to them and then 18 you sent it to everybody that is on the 19 addressee or copy list of your e-mail; correct? 20 Answer: I enclosed it to those people 21 who had already all gotten it from Amar. 22 Question: And by enclosing it means 23 you sent it around? 24 Answer: That's not the word I would 25 use, but it was enclosed in the e-mail I sent 5984 1 to those people who had already received it 2 directly from Amar. 3 Question: So when people got your 4 e-mail -- all I'm trying to do is -- I don't 5 think this is obscure. 6 All I'm trying to do is establish that 7 when you sent your e-mail to the five people 8 that you sent it to, with your e-mail they got 9 Mr. Nehru's e-mail? 10 Answer: Which they had already 11 gotten. 12 Question: And they got it again? 13 Answer: As an enclosure, yes. 14 Question: As an enclosure to your 15 e-mail? 16 Answer: Right. 17 Question: And that e-mail from 18 Mr. Nehru that you enclosed with your e-mail is 19 a discussion of Netscape's revenues; correct, 20 sir? 21 Answer: That's the subject line of 22 his e-mail. 23 Question: Not only is it the subject 24 line. That's what the substance of the e-mail 25 is? 5985 1 Answer: Do you want me to look at it? 2 Question: If you need to to answer 3 the question. 4 Answer: It appears to be a discussion 5 of Netscape's revenue, or what he was able to 6 find out about it at a 70 percent confidence. 7 Question: And the first line of your 8 memo that you send to the five people indicated 9 here, including Mr. Maritz and Mr. Ballmer, is 10 what kind of data do we have on how much 11 software companies pay Netscape; correct, sir? 12 Answer: Yes. 13 Question: And did they furnish you 14 with that information? 15 Answer: I don't think so. 16 Question: You say in the next line, 17 in particular, I am curious about their deals 18 with Corel, Lotus, and Intuit. 19 Do you see that? 20 Answer: Uh-huh. 21 Question: You've got to say yes or no 22 for the -- 23 Answer: Yes. 24 Question: Did you ever receive 25 information about what revenues Netscape was 5986 1 getting from any of those companies? 2 Answer: I'm quite sure I didn't. 3 Question: Netscape was getting 4 revenues from Intuit. You knew that in 5 December of '96; correct, sir? 6 Answer: I still don't know that. 7 Question: You still don't know that? 8 You tried to find that out in December 9 of 1996; correct? 10 Answer: I did not myself try to find 11 that out. 12 Question: You tried to find it out by 13 raising it with people who worked for 14 Microsoft, didn't you? 15 That's what this message is. 16 Answer: It says I'm curious about it. 17 Question: Well, the first line says, 18 what kind of data do we have about how much 19 software companies pay Netscape? In 20 particular, I am curious about their deals with 21 Corel, Lotus, and Intuit. That's what you 22 wrote to Mr. Nehru, Mr. Silverberg, Mr. Chase, 23 Mr. Ballmer, and Mr. Maritz; correct, sir? 24 Answer: Right, because Amar's mail 25 didn't seem to have any data about that. 5987 1 Question: And is it your testimony 2 that you never got any data about that? 3 Answer: That's right. I don't 4 remember getting any data. I'm quite sure that 5 I didn't. 6 Question: Did you follow up to try to 7 get an answer to those questions? 8 Answer: No. 9 Question: After December of 1996, 10 Microsoft entered into an agreement with Intuit 11 that would limit how much money Intuit paid 12 Netscape; correct, sir? 13 Answer: I'm not aware of that. 14 Question: Are you aware of an 15 agreement that Intuit entered into with 16 Microsoft? 17 Answer: I know there was some kind of 18 an agreement. I wasn't part of negotiating it, 19 nor do I know what was in it. 20 Question: Do you know anything that 21 was in the Intuit agreement? 22 Answer: I'm quite sure that Intuit 23 had a plan to use our componentized browser. 24 And I think in the agreement they agreed to 25 make that their default browser. 5988 1 Question: Do you know anything else 2 about the Intuit agreement? 3 Answer: Well, Mr. Houck, when he -- 4 Question: Do you know anything else 5 about the Intuit agreement? 6 Answer: I was going to answer. 7 Question: Well, okay. I just want to 8 be clear that what I'm asking about has nothing 9 to do with what Mr. Houck knows or what 10 Mr. Houck suggested. It's what you know as you 11 sit here now. 12 Now, if Mr. Houck refreshed your 13 recollection about it, that's fine. 14 Answer: Let me just say the sentence 15 and then we'll see what you say. 16 Question: Okay. 17 Answer: Mr. Houck showed me an e-mail 18 which appeared to be written by Will Poole 19 talking about his discussions with Intuit, and 20 I could tell you what I remember from that 21 e-mail that Mr. Houck showed me. 22 Question: No, because that's in the 23 record already. 24 What I need to know is whether, based 25 on anything that Mr. Houck did or that I did -- 5989 1 I think I actually may have showed you the 2 e-mail you're talking about. 3 But whether it was Mr. Houck or me, 4 based on whatever happened before, do you now 5 have a recollection of the Intuit agreement 6 other than about the default browser? 7 Answer: I'm confused. 8 Question: Okay. Let me distinguish 9 two things. 10 I'm not asking you to try to remember 11 the e-mail that you were shown before. What 12 I'm asking is whether, as you sit here now, you 13 have a memory or recollection of the Intuit 14 deal other than that it made IE the default 15 browser? 16 Answer: No. 17 Question: Now, let me go back to 18 where I was before we entered into our 19 discussion of Mr. Nehru's e-mail. 20 Other than the e-mail that you sent on 21 December 1, 1996, do you recall any other 22 instances in which you were personally asking 23 for data about Netscape? 24 Answer: I think I was in a meeting, a 25 normal review-type meeting, where some data on 5990 1 Netscape was presented by Amar. And it's 2 likely that I asked at least one question 3 during the meeting. 4 Question: Any other instances? 5 Answer: I think there was e-mail 6 about a specific deal that Netscape did with 7 Citicorp in the last couple months where I was 8 curious about how much Citicorp had paid. 9 Either that or the mail just included 10 that information. 11 Question: Any other instance in which 12 you personally asked for information concerning 13 Netscape's revenues, head count, business, 14 plans or dependencies? 15 Answer: I remember once saying to 16 Brad Silverberg how many developers does 17 Netscape have, and being curious about that. 18 Question: Any other instances? 19 Answer: I think when we did 20 geographic reviews one time, I asked someone if 21 Netscape had an office in their country. 22 I think once when I was in Japan -- 23 this is another instance -- I asked what the 24 the browser usage share was in Japan, in 25 particular what Netscape's usage share was. 5991 1 Question: Have you completed your 2 answer? 3 Answer: Yes. 4 Question: Have you now given me all 5 of the instances that you can recall in which 6 you have personally asked for information 7 concerning Netscape's revenues or head count or 8 dependencies? 9 Answer: Yes. 10 Question: Let me ask you to look at a 11 document that we will mark as Exhibit 381. 12 The third item on the first page is an 13 e-mail from Paul Maritz to you dated January 14 16, 1996. It is to you and a number of other 15 people, but you are the first name there. 16 Do you see that? 17 Answer: Yes. 18 Question: Did you receive this e-mail 19 in January, 1996? 20 Answer: I don't remember receiving 21 it, but I have no reason to doubt that I did. 22 Question: The second sentence of 23 Mr. Maritz's e-mail to you says, quote, we need 24 to look carefully at any significant 25 opportunity to gain share versus Netscape. 5992 1 Do you see that? 2 Answer: That's part of the sentence 3 that I see. 4 Question: The rest of the sentence 5 says, and think carefully before AOL goes off 6 and partners with Netscape. 7 Do you see that? 8 Answer: Yes. 9 Question: That's the rest of the 10 sentence; right? 11 Answer: Right. 12 Question: Even though you don't 13 recall receiving this particular e-mail, do you 14 recall Mr. Maritz telling you in or about 15 January of 1996 that he believed that Microsoft 16 had to look carefully at any significant 17 opportunity to gain share versus Netscape? 18 Answer: No. 19 Question: Do you recall Mr. Maritz 20 telling you in or about January of 1996 that 21 there was a possibility that AOL was going to 22 go off and partner with Netscape? 23 Answer: I don't know the time frame, 24 but I know there was -- there came a time where 25 AOL was considering whether to keep doing their 5993 1 own browser technology or work with someone 2 else on that. 3 Question: And is that your 4 understanding of what Mr. Maritz was referring 5 to when he talks about AOL going off and 6 partnering with Netscape? 7 Answer: It appears to be a mail about 8 -- let me take a look at it. 9 It appears to be a mail about OEMs 10 prominently featuring the AOL client in such a 11 strong way that anything we would do for AOL in 12 that regard would be of no impact, and, 13 therefore, that maybe we should work with AOL 14 on the browser. 15 MR. BOIES: Could I have that answer 16 read back? 17 (Requested portion of the record 18 was read.) 19 MR. BOIES: And would you read my 20 question back, please? 21 (Requested portion of the record 22 was read.) 23 Answer: Well, having read the mail, 24 my best guess is that he is talking about the 25 browser, but it's just a guess reading the 5994 1 e-mail. 2 Question: Well, when you say that 3 your best guess is he is talking about the 4 browser, you mean in his e-mail that this is 5 about a browser? 6 Answer: About working with AOL on 7 browsing technology. 8 Question: Well, do you have any doubt 9 that this is related to browsers, sir? 10 Answer: It's certainly part of what 11 it's about. 12 Question: When Mr. Maritz says, we 13 need to look carefully at any significant 14 opportunity to gain share versus Netscape, he 15 is talking about browser share, is he not? 16 Answer: Almost certainly. 17 Question: Okay. And as you've 18 previously pointed out, part of the same 19 sentence is that he says that it's important to 20 think carefully before AOL goes off and 21 partners with Netscape. Do you see that? 22 Answer: I see it. 23 Question: And when he is talking 24 about going off and partnering with Netscape, 25 he is talking about AOL partnering with 5995 1 Netscape relating to browsers; correct? 2 Answer: As I said, I'm not certain 3 what he means, but from reading the e-mail, 4 certainly browsers is part of what he is 5 talking about, it appears. 6 Question: And in response to this 7 issue, did Microsoft go off and partner with 8 AOL with respect to browsers? 9 Answer: In response to what? 10 Question: In response to the thing 11 that Mr. Maritz writes to you in January of 12 1996, that he wants to look carefully at any 13 significant opportunity to gain share versus 14 Netscape and AOL is thinking about going off 15 and partnering with Netscape. 16 Answer: The reason we did enter into 17 some partnership activities with AOL is in 18 order to let them take advantage of some of the 19 innovations we'd done in browsers and get 20 broader exposure of the work that we'd done 21 there. 22 Question: And did you enter into 23 partnership relationships with AOL concerning 24 browsers? 25 Answer: We entered into a 5996 1 partnership, a primary element of which was 2 working together to make the Windows browsing 3 technology meet AOL's needs. 4 Question: And was one of the reasons 5 that you did that to try to gain share versus 6 Netscape? 7 Answer: Our goal was certainly to 8 improve the exposure of our innovation and, 9 therefore, the usage share of IE. 10 Question: Now, when Mr. Maritz writes 11 to you, he is not writing about gaining 12 exposure for your innovations. He is writing 13 about gaining share versus Netscape; correct, 14 sir? 15 Answer: Are we back to focusing on 16 this piece of e-mail here? 17 Question: I don't know what you mean 18 by back to, but in January of 1996, Mr. Maritz 19 writes to you about pursuing any significant 20 opportunity, quote, to gain share versus 21 Netscape. 22 Do you see that, sir? 23 You said you didn't have any doubt 24 that you'd received this; correct? 25 Answer: I have no reason to doubt 5997 1 that I received it. 2 Question: Do you doubt that you 3 received it? 4 Answer: No. 5 Question: Okay. So you accept you 6 received this e-mail? 7 Answer: I said I had no reason to 8 doubt that I received it. 9 Question: And you also said you don't 10 doubt it? 11 Answer: I don't know for sure that I 12 received it because I don't remember 13 specifically receiving it. 14 Question: Let me put it this way. 15 As you sit here now, you believe you 16 received it, don't you, Mr. Gates? 17 Answer: I believe it's more likely 18 than not that I received this e-mail. 19 Question: As you've described 20 previously in the deposition, can you give me 21 any probability greater than that? 22 Answer: I think it's very likely. 23 Question: Okay. Now, in this e-mail 24 that it is very likely that you received in 25 January of 1996, Mr. Maritz writes that you 5998 1 need to look carefully at any significant 2 opportunity to gain share versus Netscape and 3 you need to think carefully before AOL goes off 4 and partners with Netscape. 5 Was the desire to gain share versus 6 Netscape part of what led Microsoft to itself 7 partner with AOL with respect to browsers? 8 Answer: Our goal was to raise the 9 usage share of our Internet Explorer 10 technologies in Windows and that's the reason 11 we did the agreement with AOL. 12 Question: Now, when you refer to 13 gaining things in Windows, the documents that 14 talk about browser share don't talk about 15 gaining share for Windows, do they, sir? 16 Answer: They talk about gaining share 17 for the IE part of Windows. 18 Question: Well, they don't even talk 19 about gaining share for the IE part of Windows. 20 Have you seen any documents that talk 21 about gaining share for the IE part of Windows? 22 Answer: Well, certainly if you're 23 talking about e-mail within Microsoft, we all 24 know that IE is a part of Windows. And so we 25 don't bother, for any feature that we're 5999 1 studying usage of to restate and that feature 2 is a part of Windows. We simply refer to the 3 feature. 4 Question: IE is distributed other 5 than as part of Windows, is it not, sir? It's 6 distributed separately? 7 Answer: It's a different thing we do, 8 which is we create an IE for Macintosh that 9 shares some of the same code as the IE 10 capabilities that are in Windows. 11 MR. BOIES: Would you read back the 12 question, please? 13 (Requested portion of the record 14 was read.) 15 Question: Can you answer that 16 question, sir? 17 Answer: We take a subset of the IE 18 technologies that are in Windows and create 19 something independent, which is the IE for 20 Macintosh, although there is a lot of unique 21 code that is written for that work. And we 22 also create it for Unix as well. 23 Question: When you look at your 24 browser share, do you include in your browser 25 share the usage of IE browsers that are used on 6000 1 Macintosh? 2 Answer: Sometimes yes and sometimes 3 no. 4 You can add those numbers together, 5 and sometimes we do that. You can track the 6 numbers separately, and we've certainly done 7 that as well. 8 Question: When you talk about your IE 9 browser share without further elaboration, is 10 that including your IE usage on Macintosh or 11 not? 12 Answer: Highly ambiguous. 13 Question: When you receive discussion 14 of Microsoft's browser share without further 15 elaboration, how do you understand those 16 references? 17 Do you understand those references to 18 include your usage on Macintosh or not to 19 include IE's Macintosh usage? 20 Answer: I'd have to look at the 21 reference. 22 If they say Windows, then they don't 23 include Macintosh. 24 If they just say it without mentioning 25 Windows, it's not clear whether they're 6001 1 including the Macintosh usage or not. 2 Question: Have you ever asked someone 3 who wrote you just talking about browser share 4 whether they were talking about browser share 5 including Macintosh or not? 6 Answer: Yes, I believe I have. 7 Question: Who did you ask that of? 8 Answer: I'm sure I sent mail and 9 probably included Brad Chase as one of the 10 people I would have, in responding to something 11 like that, included. 12 Question: What was the response? 13 Answer: I'm sure they clarified which 14 numbers referred to the IE usage from within 15 Windows 95 and which referred to the IE 16 offering we make on the Macintosh. 17 Question: And with respect to Exhibit 18 381, the January, 1996 message from Mr. Maritz 19 to you where he is talking about gaining share 20 versus Netscape, does that include usage share 21 on Macintosh or not? 22 Answer: It's not clear at all. 23 Question: Do you have any 24 understanding as to what he meant by that? 25 Answer: Whether he included the 6002 1 Macintosh share or not, is that the question? 2 Question: Yes. 3 Answer: No, I don't know. 4 MS. CONLIN: This is a good time, Your 5 Honor. 6 THE COURT: Very well. Ladies and 7 gentlemen of the jury, please remember the 8 admonition. 9 We'll take our lunch break now. Leave 10 your notebooks here. 11 See you at 12 noon. 12 (A recess was taken from 11 a.m. to 13 12:02 p.m.) 14 THE CLERK: All rise. 15 MS. CONLIN: Continuing with the 16 deposition of Mr. Gates, September 2nd, 1998. 17 THE COURT: Let's wait until Carrie 18 gets the lights. 19 All right. 20 (Whereupon, the following video 21 resumed playing to the jury.) 22 Question: When IE share is discussed 23 within Microsoft, that share is discussed as a 24 share of browsers, is it not, sir? Those are 25 the words that are used? 6003 1 Whatever they may mean, whatever you 2 say they may mean, that's the words that are 3 used; is that correct, sir? 4 Answer: We have data about the usage 5 levels of various brows