7423 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 XXVIII 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 8:15 a.m., January 10, 14 2007, in Room 302 of the Polk County 15 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 7424 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 RICHARD M. HAGSTROM 7 MICHAEL E. JACOBS MICHAEL R. CASHMAN 8 Attorneys at Law Zelle, Hofmann, Voelbel, 9 Mason & Gette, LLP 500 Washington Avenue South 10 Suite 4000 Minneapolis, MN 55415 11 (612) 339-2020 12 STEVEN A. LAMB Attorneys at Law 13 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 14 550 South Hope Street Suite 1600 15 Los Angeles, CA 90071 (213) 895-4150 16 ROBERT J. GRALEWSKI, JR. 17 Attorney at Law Gergosian & Gralewski 18 550 West C Street Suite 1600 19 San Diego, CA 92101 (619) 230-0104 20 KENT WILLIAMS 21 Attorney at Law Williams Law Firm 22 1632 Homestead Trail Long Lake, MN 55356 23 (612) 940-4452 24 25 7425 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY JOSEPH E. NEUHAUS 3 Attorneys at Law Sullivan & Cromwell, LLP 4 125 Broad Street New York, NY 10004-2498 5 (212) 558-3749 6 ROBERT A. ROSENFELD KIT A. PIERSON 7 Attorneys at Law Heller Ehrman, LLP 8 333 Bush Street San Francisco, CA 94104 9 (415) 772-6000 10 STEPHEN A. TUGGY HEIDI B. BRADLEY 11 Attorneys at Law Heller Ehrman, LLP 12 333 South Hope Street Suite 3900 13 Los Angeles, CA 90071-3043 (213) 689-0200 14 BRENT B. GREEN 15 Attorney at Law Duncan, Green, Brown & 16 Langeness, PC Suite 380 17 400 Locust Street Des Moines, IA 50309 18 (515) 288-6440 19 20 21 22 23 24 25 7426 1 RICHARD J. WALLIS STEVEN J. AESCHBACHER 2 Attorneys at Law Microsoft Corporation 3 One Microsoft Way Redmond, CA 98052 4 (425) 882-8080 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7427 1 (The following record was made out of 2 the presence of the jury at 8:19 a.m.) 3 THE COURT: Did you guys want to talk 4 about these letters? 5 MR. TULCHIN: Yes, Your Honor. I 6 don't know whether we should wait for 7 Ms. Conlin. But we corresponded by e-mail last 8 evening. 9 THE COURT: Right. 10 MR. TULCHIN: And I think we are 11 pretty much agreed. 12 There is one issue. There was one 13 motion that I think the parties agree can be 14 heard on Friday, subject, of course, to the 15 Court's convenience. 16 And as to all the others, both sides 17 agree that we can put those off until next 18 week. 19 THE COURT: That's fine. 20 MR. TULCHIN: That raises, though, 21 Your Honor, the question of whether we are 22 having so-called evidence day on Friday or 23 whether we're having a witness. 24 THE COURT: Yeah. 25 MR. TULCHIN: And I gather that the 7428 1 Plaintiffs have Mr. Constant, who's here from 2 England, and so, you know, I'm not sure whether 3 Ms. Conlin wants to be here for this 4 discussion. That's why I was -- 5 MR. GREEN: She's out in the hallway. 6 THE COURT: Oh, she is. 7 Well, just for your information, when 8 Mr. Tuggy and Ms. Bradley and Mr. Cashman and 9 Mr. Gralewski were here last night, he told me 10 that Roxanne told her -- him that -- so this is 11 a classic hearsay -- that that guy is coming to 12 testify and they probably want to use Friday 13 because they didn't know if Mr. Alepin would be 14 done. So they asked me about Friday. 15 That's fine if you guys want to 16 postpone on the exhibits. That's fine. I'll 17 just hear that one motion. 18 MR. TULCHIN: Yeah. We don't really 19 want to, Your Honor, but we're also sensitive 20 to the fact that there's a witness from out of 21 town. And we don't want to inconvenience that 22 witness. 23 I assume that we'll get the same 24 courtesy, you know, if a similar situation 25 arises during our case. 7429 1 THE COURT: Absolutely. 2 MR. TULCHIN: And there's a witness 3 that comes from some distance. 4 THE COURT: Mr. Constant is from 5 England, I guess? 6 MS. CONLIN: Yes, Your Honor. 7 MR. TULCHIN: Yeah. 8 THE COURT: That's fine with me. 9 MR. TULCHIN: If it's better for the 10 Court and for everyone else to proceed with 11 Mr. Constant and to sit with the Jury on 12 Friday, that's fine with us. 13 I assume we'll get the same courtesy. 14 And at some point on Friday, we'll hear 15 argument on that one motion. 16 THE COURT: Okay. 17 MR. TULCHIN: Whenever is best for the 18 Court. 19 THE COURT: I have no problem. 20 Mr. Hagstrom? 21 MR. HAGSTROM: When Mr. Tulchin 22 mentions the one motion, it's really kind of 23 three pleadings together, the last three in my 24 letter of yesterday. 25 THE COURT: Which motion is it? 7430 1 MR. HAGSTROM: Well, they have 2 Defendant's emergency motion for an order to 3 show cause, and I thought we already had a 4 hearing on that. Maybe that was just evidence. 5 Then the next one was Defendant's 6 renewed motion for sanctions. 7 And then Plaintiffs' motion to compel 8 Defendant to produce expert discovery. 9 So those are all three motions that 10 are related to the same -- 11 THE COURT: Same thing? 12 MR. HAGSTROM: Same issues. 13 THE COURT: Is that what you meant by 14 -- 15 MR. TULCHIN: Well, I thought the only 16 one we were going to hear Friday was our motion 17 for sanctions. It's the same issue, Your 18 Honor. 19 We think there's been more expert 20 discovery that hasn't been produced to us and 21 there are papers. It's been fully briefed. 22 If the Plaintiffs wanted the same time 23 to have their motion heard to compel expert 24 discovery, although we think we've given them 25 everything, you know, that's fine with us. 7431 1 THE COURT: Okay. All right. We'll 2 do that. That's fine. 3 So that will be on Thursday -- Friday? 4 MR. HAGSTROM: Friday. 5 THE COURT: Friday? 6 MR. TULCHIN: Friday is fine, Your 7 Honor. Thursday would be fine with us too. In 8 fact, Thursday would be better. If you want to 9 do it Thursday? 10 MR. HAGSTROM: Let me just let you 11 know later today. Is that all right? 12 MR. TULCHIN: If it's all right with 13 the Court. 14 THE COURT: Let me know too because 15 then we'll decide. If you want to do it 16 Thursday, that's fine. That way I can finish 17 this afternoon with the deposition stuff I was 18 going through with Mr. Tuggy and Cashman. 19 MR. HAGSTROM: Yeah. I just have to 20 check with some people back at the office. 21 MR. TULCHIN: There may also be some 22 advantage at doing it Thursday because Friday 23 at 3 o'clock everybody is tired from the week. 24 THE COURT: I'm just raring to go. 25 MR. TULCHIN: I've got to see you on 7432 1 Saturday then. 2 THE COURT: Saturday you don't want to 3 see me. 4 (The following record was made in the 5 presence of the jury at 8:37 a.m.) 6 THE COURT: For once, the delay is not 7 my fault. That's good. 8 Mr. Alepin, you are still under oath. 9 RONALD ALEPIN, 10 called as a witness, having been previously 11 duly sworn, testified as follows: 12 CROSS-EXAMINATION (CONT'D) 13 BY MR. HOLLEY: 14 Q. Good morning, Mr. Alepin. 15 A. Good morning. 16 Q. When we finished yesterday afternoon, 17 I believe that you had just testified that you 18 did review the testimony of Professor Elzinga 19 of the University of Virginia; is that correct, 20 on the subject of media players? 21 A. I believe I said I had reviewed 22 portions of it. 23 Q. Okay. I'd like to show you, sir, a 24 portion of that testimony. 25 MR. HOLLEY: May I approach the 7433 1 witness, Your Honor? 2 THE COURT: Yes. 3 Q. And I've given you the full testimony 4 behind it, but what I'd like to focus on is 5 paragraph 52 of Professor Elzinga's testimony. 6 In that paragraph -- and I'm sort of 7 midway down the paragraph, he says each media 8 player -- and he's referring to Real 1 player, 9 Music Match Jukebox and Win App -- and you're 10 familiar with all of those, are you not, sir? 11 A. Yes, I am. 12 Q. Each media player also launched its 13 own small program. Tinkerbell is the code name 14 for Real 1's program to check periodically to 15 see if its media player had the MP 3 default 16 association. If it did not, the program took 17 it back. 18 And that's consistent with your 19 technical understanding of the way that 20 Tinkerbell works; correct? 21 A. Yes, that's one portion of 22 Tinkerbell's function, yes. 23 Q. And then Professor Elzinga goes on to 24 say that Real 1, check every 10 minutes to see 25 if it had the default association for MP 3 and, 7434 1 if it didn't have it, it took it back; is that 2 correct? 3 A. He -- yes. I mean, you're not reading 4 the exact text, but, yes, Real 1 and Win App, 5 yes. 6 Q. And even if someone had gone to 7 Windows Media Player and explicitly chose to 8 have Windows Media Player be the default 9 handler for MP 3 playback, the next 10-minute 10 cycle that occurred, Tinkerbell would take it 11 back; correct? 12 A. At -- during some period of time, that 13 would have been true. 14 Q. Now, you testified yesterday, sir, 15 that there is media playback software in 16 Apple's Mac OS and various versions of Linux, 17 including Suse and RedHat and in Sun Solaris; 18 is that correct? 19 A. Those products ship with media player 20 functionality, yes. 21 Q. And that media player technology, in 22 your parlance, is bundled and tied with those 23 operating system products; correct? 24 A. I don't believe that it's tied, but 25 it's bundled. It's in the box. 7435 1 Q. Okay. Well, if I go to buy a copy of 2 RedHat desktop, I can't get it without media 3 player software, can I? 4 A. That's correct. 5 Q. And if I go to get a copy of Mac OS X 6 Tiger, I can't get it without QuickTime media 7 playback software; correct? 8 A. It's in the box, that's correct. 9 Q. And there's no option -- there is no 10 Mac OS Tiger that comes without QuickTime, is 11 there, sir? 12 A. I'm unaware of any such version. 13 Q. And the same is true of Suse Linux 14 from Novell. I can't go anywhere to a store 15 and get a copy of Suse Linux without getting 16 the media player software that Novell has 17 included; is that right, sir? 18 A. As a retail product, that's correct. 19 Q. Well, if I ask that Dell preinstall 20 Suse Linux on my new PC, can I get it without 21 the media playback software? 22 A. I don't believe Dell ships it without 23 the media player. 24 Q. Do you know one way or the other, sir? 25 A. I know it does not. 7436 1 Q. And if I go and get a copy of Sun 2 Solaris 10, can I get Solaris 10 without the 3 media player software that Sun includes in 4 Solaris 10? 5 A. I'm -- you're talking now about 6 Solaris for PCs as opposed to Solaris, the 7 server operating system? 8 Q. I appreciate the clarification. I'm 9 talking about the Intel version of Solaris. 10 Can I get that without the media player 11 software? 12 A. I don't believe so. 13 Q. Now, you testified on direct that 14 Microsoft's conduct had prevented the emergence 15 of niche devices that could be used with PCs to 16 provide media functionality. Did I understand 17 that testimony correctly? 18 A. I -- yes, I think that's correct as 19 far as it goes, yes. 20 Q. You're, I presume, aware of something 21 called an iPod, are you not, sir? 22 A. Yes, I am. 23 Q. Okay. And an iPod is a device that 24 can be used with iTunes on a PC to provide both 25 audio and video playback; correct? 7437 1 A. A little bit of clarification. 2 An iPod can operate independently of 3 the PC to provide playback. 4 Q. I appreciate that, but the only way 5 that you can get music on your iPod, legally, 6 is to use iTunes; correct? 7 A. I believe that's the case, yes. 8 Q. Now, an iPod, you would agree with me, 9 is far and away the most popular digital media 10 player in the world? 11 A. It's -- it is so at my home and it 12 probably is in -- certainly in the United 13 States. 14 Q. I may get in trouble with my client, 15 but it's very popular with me as well, sir. 16 And one of the things that is true of 17 the iPod is that the format of the songs on the 18 iPod is not compatible with Windows Media 19 Player, is it? 20 A. It's not the same -- the format is not 21 the same. Windows Media Player supports a 22 variety of formats, but it does not support the 23 iTunes -- the iTunes format and/or iPod format. 24 Q. And that's because that format is 25 proprietary to Apple; correct? 7438 1 A. That's -- I'm sorry. There's a 2 missing link there, I think. It's -- it's not 3 because it's proprietary, that it's not 4 supported. 5 Q. Well, is it available for license to 6 Microsoft, the fair play digital rights 7 management software on top of Apple's AAC 8 format, is that available for license to 9 anyone? 10 A. I don't -- 11 MR. LAMB: Objection to the extent it 12 calls for a legal conclusion. 13 THE COURT: Overruled. 14 He may answer if he knows. 15 A. I believe that Real Player provides 16 support for or has provided support for Apple 17 iPod formats. 18 Q. And was threatened with a lawsuit as a 19 result; correct? 20 MR. LAMB: Objection to the extent it 21 calls for a legal conclusion. 22 THE COURT: Overruled. 23 He can answer that. 24 A. I don't recall whether it was or not. 25 Q. Well, as we sit here today, does Apple 7439 1 let RealNetworks play digitally rights -- the 2 content in AAC format that is protected using 3 the fair play digital rights management 4 software that Apple created? 5 A. I didn't follow -- I haven't followed 6 it recently. Only -- I followed it up until 7 the time that Real Player implemented support 8 for the AAC format. 9 Q. Have you followed what's going on in 10 the French legislature about the proprietary 11 nature of Apple's iPod formats? 12 A. I have read -- I've read reports of 13 what's going on. 14 Q. And you're aware that the French 15 senate, for example, passed a law seeking to 16 force Apple to open up its proprietary formats 17 for the iPod, are you not, sir? 18 MR. LAMB: Objection to the extent it 19 calls for a legal conclusion. 20 THE COURT: Overruled. 21 You may answer. 22 A. It's quite murky. I believe -- my 23 understanding is it's quite murky. 24 There were a number of different 25 proposed legislations that variously dealt with 7440 1 Apple formats. 2 But I don't know whether it -- I'm 3 sorry, I don't recall whether it was the 4 senate, whether it was the National Assembly or 5 any of the -- or whether the executive, the 6 president, or the prime minister had a role in 7 proposing where that legislation ultimately 8 ended up. 9 Q. And just one last question on this 10 subject. 11 As far as you know, sitting here 12 today, Microsoft is not able to play content 13 encoded in Apple's AAC format and protected 14 with Apple's fair play digital rights 15 management on Windows Media Player? 16 A. It is not -- is not able is unclear to 17 me in your sentence. 18 Q. And what is unclear to you about that? 19 A. Well, as a technical -- excuse me. As 20 a technical matter, I don't know whether 21 Microsoft is or is not able to do that. 22 RealNetworks was able as a technical matter to 23 do that. 24 Q. And I'm not asking you for a lawyer's 25 opinion, but, as a matter of fact, do you know 7441 1 whether Apple licenses to anyone the ability to 2 play content encoded in its AAC format 3 protected by its fair play digital rights 4 management so that other people can implement 5 that technology on their digital music devices? 6 A. No, I don't. 7 MR. LAMB: Objection. Legal 8 conclusion. Relevance. Conflicts with motion 9 in limine rulings regarding other conduct. 10 THE COURT: Overruled. 11 You may answer. 12 A. I don't, no. 13 Q. I'd like to switch gears here now, 14 sir, and talk about web-browsing software. 15 We've been talking about media player 16 software and I'd like to now talk about 17 web-browsing software. 18 In forming your opinions in this case, 19 I presume that you looked at evidence in the 20 record about what Netscape knew and didn't know 21 at the time of its formation about the plans of 22 operating system vendors to include 23 web-browsing software in their products. Is 24 that right? Did you do that? 25 A. I did. 7442 1 Q. Okay. And among the things that you 2 looked at, I presume, was the private placement 3 memorandum that Netscape issued in January of 4 1995 in seeking to raise additional capital? 5 A. Well, I've heard reference to the 6 private placement memo. I'm not sure that I, 7 in fact, reviewed it. 8 Q. So you know about it, but you never 9 looked at it? 10 A. I didn't mean to convey that. 11 I know about it. Other documents 12 refer to it. I don't recall whether I read it 13 or not. 14 Q. Well, you testified in direct 15 examination, didn't you, sir, that one of the 16 things that Microsoft did in your view to 17 Netscape was to tell the world that 18 web-browsing software was going to be part of 19 the operating system; correct? 20 A. I did. 21 Q. Would it be relevant to your opinion 22 that Netscape knew that eight months before 23 Windows 95 was commercially released? 24 A. Not necessarily. 25 Q. What if Netscape itself was telling 7443 1 the market that it knew in January of 1995 that 2 IBM and Apple and Microsoft and all UNIX 3 vendors were likely to include web-browsing 4 software as a standard feature of their 5 operating system? 6 A. Well, I believe that in documents that 7 discuss the risks of investments -- and I'm not 8 a specialist in here, but it is standard 9 practice to include a list -- a parade of 10 horribles that condition potential investors to 11 the array of risks that might occur when an 12 investor, a potential investor is considering 13 whether or not to put money into a company. 14 MR. LAMB: Your Honor, may we 15 approach? 16 THE COURT: Go ahead. 17 (The following record was made out of 18 the presence of the jury at 8:53 a.m.) 19 THE COURT: Okay. 20 MR. LAMB: Your Honor, again, he's 21 going to go into a private place in reading 22 from that document that was published, 23 apparently, by Netscape in '95. Again, he's 24 asking for legal conclusions. 25 This isn't relevant. It basically 7444 1 conflicts with the findings of fact in that 2 he's trying to go through and try to show 3 through other's conduct that Microsoft's 4 conduct wasn't that bad. 5 This doesn't go to any of the 6 examination by Mr. Alepin. It doesn't impeach 7 any of the testimony of Mr. Alepin; and, 8 furthermore, it conflicts with and is trying to 9 undermine the findings of fact and the specific 10 findings that there was some illegal conduct 11 undertaken by Microsoft in this report. 12 MR. HOLLEY: Let me address those one 13 by one. 14 I just established the foundation that 15 he testified on direct that one of the things 16 that Microsoft did to Netscape, in his view, 17 was tell the market that it was going to 18 include Web browsing software Windows. 19 This document directly impeaches that 20 testimony because it shows that in January of 21 1995, eight months before the release of 22 Windows 95, Netscape itself was telling the 23 market that that was going to happen. 24 The second point is that there is no 25 collaterally estopped finding that Microsoft 7445 1 injured Netscape by telling the market that it 2 was going to include Web browsing software in 3 Windows. 4 There is also no collaterally estopped 5 finding or conclusion that the inclusion of Web 6 browsing software in Windows was itself 7 illegal. 8 There are conclusions of law that the 9 manner in which Microsoft included Web browsing 10 software in Windows by not putting it in the 11 add/remove utilities program and by commingling 12 the code, that manner of doing it was a 13 violation of Section 2. 14 But as I've said before, what the 15 Court of Appeals' decision says is that there 16 are procompetitive benefits of including IE in 17 platform software like Windows. That is why 18 they reversed and remanded the tying claim. 19 And the government dropped that claim on remand 20 because they knew, as they told Judge 21 Kollar-Kottely, that they could never prove 22 that the procompetitive benefit of including 23 Web browsing software in Windows were 24 overwhelmed by any anticompetitive benefit. 25 And there is a transcript of the 7446 1 government's lawyer saying exactly that, Your 2 Honor. We dropped the claim because we 3 couldn't prove it. 4 So, obviously, we are collaterally 5 estopped by things that we're collaterally 6 estopped on, but we're not estopped from things 7 that are not addressed in the government case. 8 So I think this is well within the 9 scope of direct. I've now established that, 10 and it is not collaterally estopped, Your 11 Honor. 12 MR. LAMB: Your Honor, that cannot be 13 the case that a technological expert can be 14 impeached with the determinations of a Court of 15 Appeal, number one. 16 Number two, number two, this witness 17 did not review this document, and this witness 18 did not rely on this document, so he cannot be 19 impeached by this document. 20 MR. HOLLEY: Your Honor, that is the 21 craziest thing, with respect, I have ever 22 heard. If it's the rule, then it will be the 23 rule going forward for everyone. But it is not 24 the case that in cross-examining an expert, in 25 particular, you are restricted to things that 7447 1 the expert reviewed and relied upon. 2 One of the points that needs to be 3 made on cross is that there are things in the 4 record that the expert should have reviewed and 5 didn't. And it can't be that you can shield 6 your expert from selective quotation or 7 reliance on some factors in the record and not 8 be able to cross-examine that expert on that 9 basis. 10 There are -- and I should have brought 11 it in with me, Your Honor -- there are two Iowa 12 cases on this subject which say that one of the 13 grounds for cross-examining an expert is to 14 test what it is that the expert did not do. 15 Well, how can you do that unless you 16 can show the expert things in the record of the 17 proceeding that the expert chose to ignore. So 18 it cannot be that unless the expert reviewed 19 and relied on a document, it can be used for 20 impeachment. 21 MR. LAMB: Your Honor, this is done 22 every day in America, and the way it's done is: 23 Are you aware of this private 24 placement memo? 25 He says no. 7448 1 Have you reviewed it? 2 No. 3 All right. Then if it's relevant and 4 they can lay a foundation for its relevance 5 with some other witness, they will bring that 6 in and that will impeach Mr. Alepin's 7 testimony. 8 What they're trying to do is read 9 documents in to the record as if they're facts 10 that are not rebuttable that this witness 11 hasn't reviewed and hasn't relied on, and that 12 is not proper impeachment. 13 MR. HOLLEY: Your Honor -- 14 MR. LAMB: There's no foundation for 15 it. 16 MR. HOLLEY: I was taught in lawsuit 17 school, and I don't think the law has changed 18 any since then, particularly with an expert -- 19 remember, experts can rely on hearsay in 20 forming their opinions. They don't have to 21 rely on things that are admissible in evidence. 22 So experts can rely on hearsay if it's 23 the sort of thing that people in their field 24 routinely rely on in forming their opinions. 25 And so in cross-examining an expert, you can 7449 1 impeach them. And this isn't some magazine 2 article. This is the private placement memo 3 from Netscape. 4 You can impeach them with things that 5 they ignored or failed to take into account. 6 We are severely prejudiced if we can't point 7 out that out of this huge mass of evidence 8 Mr. Alepin conveniently chose to ignore things 9 that were inconsistent with his opinions. 10 That is very important for the jury to 11 understand. Yes, the record is big, but he was 12 getting paid. He got all the time he needed to 13 go look at anything he wanted to look at. 14 And the point I'm trying to make on 15 cross, which I think I'm entitled to make, Your 16 Honor, is there are things in the record which 17 flatly contradict his stated opinions on 18 direct. And some of those things are relevant 19 precisely because he didn't rely on them. 20 MR. LAMB: Your Honor, this is not in 21 the record. This -- I mean, it's one thing to 22 talk about a known treatise that the witness 23 says, "Yeah, I know of that treatise." And, 24 "No, I didn't look at it." Now you impeach 25 him. 7450 1 But he hasn't said, "Oh, yeah, I'm 2 aware of that private placement memo. Yes, I 3 should have read that private placement memo. 4 Yes, it's customary for me as a technologist to 5 review that to form my opinions." This is not 6 proper. 7 MR. HOLLEY: Well, he testified -- I 8 mean, for good or ill, and they opened the door 9 to this -- he testified and he just repeated it 10 to me. He testified on direct that one of the 11 things that Microsoft did was tell the market 12 that it was going to include Web browsing 13 software in Windows. He just said that. 14 Now, whether that's a technological 15 opinion or not, he gave it and they elicited it 16 from him. 17 Now having done that, they opened the 18 door to showing him a document which flatly 19 contradicts what he just said. And if we're 20 not allowed on cross-examination to impeach 21 this man with those sorts of flat 22 contradictions of things which are in the 23 record of this case, they got this document in 24 discovery. It was Defendant's Exhibit 68 in 25 the United States against Microsoft. It's 7451 1 Defendant's Exhibit 3741 in this matter. I 2 didn't -- you know, this is no surprise. This 3 document has been produced. 4 THE COURT: How does it contradict his 5 testimony? 6 MR. HOLLEY: Because what he said, 7 Your Honor, was that Microsoft damaged Netscape 8 by telling the market that it was going to 9 include Web browsing software in Windows. 10 And what this document says in January 11 of 1995, two months after the formation of 12 Netscape and eight months before Windows 95 was 13 released is the following: 14 Quote, Microsoft Corporation is 15 already licensing browser software from 16 Spyglass and has announced its intentions to 17 add functionality to the browser software and 18 to bundle it with its Windows 95 operating 19 system. 20 The company believes that the other 21 primary PC operating system vendors -- Apple 22 Computer, Inc., and International Business 23 Machines Corporation, IBM -- will also 24 eventually incorporate some Web browser 25 functions into their operating systems as 7452 1 standard features. 2 This may also be true of UNIX 3 operating system vendors such as Sun 4 Microsystems, Inc., Hewlett-Packard Company, 5 IBM, Digital Equipment Corporation, the Santa 6 Cruz Operation, Inc., and Philippine Graphics, 7 Inc. 8 If these companies incorporate Web 9 browser functionality into their software 10 products, they could subsequently offer this 11 functionality at little or no additional costs 12 to customers. 13 The point being, Your Honor, that 14 Netscape knew full well, two months after Marc 15 Andreessen founded the company, that PC 16 operating systems vendors -- in particular, 17 Microsoft -- were going to add Web browsing 18 functionality to their products as standard 19 features. No surprise, and no way that what 20 Microsoft said it was doing injured Netscape. 21 They said it themselves to the market. 22 MR. LAMB: Your Honor, all that says 23 is that Microsoft said it. And now we're 24 telling in a private placement memo, which is 25 designed to be honest and truthful to 7453 1 investors, that we're aware that we were told. 2 That doesn't say we knew it all along or we 3 weren't surprised or anything. That doesn't 4 contradict or rebut anything. 5 And what he's trying to show is that 6 Microsoft said, "We're going to do X." 7 Everybody else says, "Okay. I guess we're 8 going to do X too." That is not proper 9 impeachment or rebuttal testimony. 10 THE COURT: Anything else? 11 MR. LAMB: No, sir. 12 MR. HOLLEY: No, Your Honor. 13 THE COURT: Can I see this? 14 MR. HOLLEY: Yes, Your Honor. 15 THE COURT: What's the question 16 pending right now? Do you recall? 17 MR. HOLLEY: The pending question, if 18 I recall properly -- 19 MS. CONLIN: Tammy has it. 20 THE COURT: Oh. Do you have it, 21 Tammy? 22 (Requested portion of the record was 23 read back.) 24 THE COURT: Did he answer? What did 25 he say? 7454 1 (Requested portion of the record was 2 read back.) 3 THE COURT: What's your next question 4 going to be? 5 MR. HOLLEY: I was going to show him 6 that document and ask him if, in fact, Netscape 7 made those statements. 8 And he's well aware, as he just said, 9 that in public documents like this used to 10 raise capital in the U.S. capital markets, 11 there is a section called "Risk Factors." 12 And, Your Honor, if I could just go 13 back to the prior page of this document 14 there -- or two pages back. That is exactly 15 what this is. It's the risk factor section. 16 So Mr. Alepin knows all about this. 17 And what he tried to do in that answer just now 18 is undermine the significance of it by 19 referring to as a "parade of horribles." 20 Having said that, I think it's now 21 important to show the jury that they weren't 22 saying that a meteor might strike the earth. 23 In the risk factor section of this 24 private placement memorandum, they're saying 25 that Microsoft is going to do this and everyone 7455 1 else is too. 2 THE COURT: How can he authenticate 3 something he didn't prepare? 4 MR. HOLLEY: He doesn't have to. I'm 5 not offering it into evidence. It impeaches 6 his testimony. It is evidence in the record 7 which is inconsistent with his testimony and 8 therefore impeaches him; but it doesn't have to 9 be admissible into evidence, Your Honor, in 10 order to impeach him. He doesn't have to have 11 ever seen it before. He doesn't have to have 12 relied on it. It does not have to be 13 admissible. It is impeachment. 14 MS. CONLIN: But it doesn't contradict 15 his testimony. 16 MR. HOLLEY: With respect, Your Honor, 17 it does. And it's for the jury to decide 18 whether it does or does not. It is our 19 submission that it is contradictory to his 20 testimony on direct. 21 They elicited that testimony in order 22 for the jury to make an assessment of this 23 man's credibility and his bias and his -- and 24 the validity of his testimony. 25 The jury is entitled to know what else 7456 1 is in the record that is inconsistent with what 2 he said on direct. 3 THE COURT: So what if someone gave 4 you a statement on the street that Netscape 5 knew about this? Can you bring that statement 6 in and show it to him? 7 MR. HOLLEY: If that statement was the 8 sort of thing that Mr. Alepin relied on -- I 9 asked him a foundational question. 10 THE COURT: He didn't rely on this. 11 MR. HOLLEY: But -- no, the sort of 12 statements -- see, I asked him a foundational 13 question. I said: "Did you look in the record 14 in forming your views for evidence relating to 15 what Netscape knew." 16 THE COURT: Record of what? 17 MR. HOLLEY: Of all -- he testified 18 that he looked at hundreds of thousands of 19 documents. He's tried to bolster his 20 credibility by saying that he looked at 21 hundreds of thousands of documents, even though 22 he relied on 500, but he says he looked at 23 hundreds of thousands. 24 I asked him a question: 25 "Did you look for evidence in the 7457 1 record relating to your testimony? 2 "Yes. 3 "Did you try to, you know, look at all 4 of that stuff? 5 "Yes." 6 Okay. Well, here's some stuff in the 7 record that he didn't look at. 8 THE COURT: What's your next step 9 after you ask him the next question that you 10 just told me you're going to ask? 11 MR. HOLLEY: I think I'm going to move 12 on, Your Honor, if I'm allowed to ask that 13 question. 14 THE COURT: Anything else? 15 MR. LAMB: No, sir. 16 THE COURT: Okay. I'll let you ask 17 that question. 18 MR. HOLLEY: Thank you, Your Honor. 19 MS. CONLIN: Your Honor, before we 20 leave here, I've become quite concerned about 21 the "me too" evidence that is being elicited. 22 And the Court will recall that you 23 precluded that, and there's been quite a bit of 24 testimony about that. I don't know if there's 25 more coming, of the "me too" variety: Other 7458 1 companies did it and, therefore, it wasn't 2 illegal. 3 And you specifically precluded that, 4 and we had a whole raft of testimony about what 5 other media player companies were doing. 6 And I don't -- you know, ordinarily, 7 Your Honor, if I were going to offer such 8 testimony and you had made a ruling on it, I 9 wouldn't be doing that without asking you 10 first. And we've had that happen again and 11 again here. It's very distressing. Mr. Lamb 12 is loathed to interrupt the examination on a 13 repeated basis for this kind of thing because 14 I'm sure it just irritates the heck out of the 15 jury, but I did just want to mention that, Your 16 Honor, while we're back in the back here. 17 MR. HOLLEY: Well, I just want to 18 mention, Your Honor, that that is a complete 19 misrepresentation of the state of the law of 20 this case. 21 Instruction No. 9 to the jury tells 22 the jury that it needs to determine whether 23 Microsoft engaged in ordinary business 24 practices, and it needs to determine whether 25 Microsoft's conduct was consistent with 7459 1 competition on the merits. 2 The Court issued a ruling that said 3 that you cannot talk about other companies' 4 illegal conduct. There is nothing vaguely 5 illegal or anticompetitive about Apple, IBM, 6 and all the UNIX vendors putting new features 7 in their operating systems. 8 Mr. Alepin told me ten times yesterday 9 that operating systems evolve over time, that 10 everybody puts more and more functionality into 11 their operating systems. 12 There is no finding from any court in 13 the world that including functionality in an 14 operating system is illegal or anticompetitive, 15 none. 16 And so we are entitled in order to 17 give the jury a context for determining whether 18 they have met the standard articulated in 19 Instruction No. 9 to tell them what is the 20 market in this business. Otherwise, they're 21 asked to make the determination that the 22 Court's Instruction No. 9 -- and I hope I have 23 the right number -- asks them to make in a 24 complete vacuum. 25 How can the jury decide whether it is 7460 1 consistent with competition on the merits on 2 the one hand or anticompetitive on the other to 3 add the same functionality that everybody else 4 is adding unless they know that everybody else 5 did it. 6 MS. CONLIN: Your Honor, I didn't seek 7 to argue it. I sought to bring forward an 8 issue of procedure, which is before you do 9 stuff like that that might possibly violate any 10 order of this Court, you're supposed to ask. 11 MR. HOLLEY: Your Honor, I really 12 cannot allow Ms. Conlin to say that I am 13 overtly violating the Court's order. I am not. 14 It is my understanding that that 15 motion in limine says that you are not allowed 16 to elicit testimony that someone else did 17 something illegal in order to justify your own 18 illegal conduct. 19 I am not suggesting, have not 20 suggested, and will never suggest that adding 21 Web browsing functionality to an operating 22 system is illegal or anticompetitive. 23 THE COURT: I think the point she's 24 making is if you're going to get into that 25 area, it's for the Court to decide what is 7461 1 legal and what is not legal. 2 So before you do something like that, 3 you should alert me first so I can decide if 4 it's illegal conduct. 5 MS. CONLIN: Absolutely, Your Honor. 6 That's exactly my point. 7 MR. HOLLEY: Okay. Well, just maybe 8 we should do this right now then because I 9 intend to elicit testimony from -- and we 10 intend to make it the center piece of our case, 11 that every vendor of operating system software 12 over time has added new functionality to its 13 product and that is a standard business 14 practice. It's ordinary course, A. That every 15 operating system vendor preannounces its 16 products for two purposes principally. 17 One is so that it can find out whether 18 there are bugs in the product by asking other 19 people to test it for that company. 20 And, B, to give sufficient lead time 21 for vendors of compatible products to create 22 those compatible products and have them in the 23 marketplace contemporaneously. 24 And, C, that all operating system 25 vendors engage in comparative advertising, some 7462 1 of which is quite rude. IBM does it. Apple 2 does it. Everybody does it. There's nothing 3 anticompetitive about that. 4 So on FUD, on Vaporware, on the 5 integration of new features into operating 6 systems, it is our case. It is our defense 7 that that is standard business conduct. There 8 is nothing anticompetitive about it. 9 Now, Your Honor, if it's your ruling 10 that every time we do that, we need to discuss 11 it first, then, obviously, we will honor that. 12 But I just want to make it clear it is the core 13 of our defense consistent with the Court's 14 instruction to the jury that what Microsoft did 15 is not anticompetitive. Obviously, we're 16 constrained by the collaterally estopped 17 findings, but outside that context, what 18 Microsoft did is not anticompetitive. It is 19 instead normal business conduct, which is 20 consistent with competition on the merits. 21 THE COURT: I understand what you're 22 going to, but I think we have to have a review 23 every time you do it. 24 MR. HOLLEY: Okay. Fair enough, Your 25 Honor. I understand. 7463 1 Thank you. 2 MS. CONLIN: That's my only point. He 3 (The following record was made in the 4 presence of the jury at 9:15 a.m.) 5 THE COURT: You may ask your next 6 question, please. 7 BY MR. HOLLEY: 8 Q. Mr. Alepin, are you aware, sir, that 9 in a 1995, January 16, 1995, private placement 10 memorandum issued by Netscape, it made the 11 following statement: Microsoft Corporation is 12 already licensing browser software from 13 Spyglass and has announced its intention to add 14 functionality to the browser software and to 15 bundle it with its Windows 95 operating system. 16 The company believes that the other 17 primary PC operating system vendors, Apple 18 Computer, Inc., and International Business 19 Machines Corporation, IBM, will also eventually 20 incorporate some web browser functionality into 21 their operating systems as standard features. 22 This may also be true of UNIX 23 operating system vendors as Sun Microsystems, 24 Inc., Hewlett company, IBM, Digital Equipment 25 Corporation, the Santa Cruz Operation, Inc., 7464 1 and Silicon Graphics, Inc. 2 If these companies incorporate web 3 browser functionality into their software 4 products, they could subsequently offer this 5 functionality at little or no additional cost 6 to consumers. 7 Now, in forming your view which you 8 expressed to the Jury on direct that Microsoft 9 did something bad to Netscape by telling the 10 market that it was going to include 11 web-browsing software in Windows, did you take 12 account of what I just read to you, sir? 13 A. I did. 14 Q. And did you disagree with Netscape 15 that as of January of 1995 it was likely that 16 all PC operating system vendors would include 17 web-browsing functionality in their products as 18 a standard feature? 19 A. I'm sorry. I lost the front part of 20 the question. I'm sorry. 21 Q. I'll ask it again. 22 A. Okay. 23 Q. Did you disagree with Netscape's 24 belief as expressed in this document that I 25 just read to you that as of January 1995, it 7465 1 was likely that all PC operating system vendors 2 would include web-browsing functionality as a 3 standard feature of their products? 4 A. I -- I don't disagree. 5 Q. And you don't disagree, do you, sir, 6 that as we sit here today, Apple has done that. 7 The Safari web browser is a feature of the 8 Macintosh operating system operating product, 9 is it not? 10 A. That's correct. 11 Q. And Sun Solaris already also has a web 12 browser as a feature of its product? 13 A. That's correct. 14 Q. And Suse Linux has a web browser as a 15 feature of its product? 16 A. It has several browsers available with 17 its product. 18 Q. And RedHat has as a feature of its 19 desktop OS a web browser; correct? 20 A. I think you used product before, and I 21 agreed with its products. If you meant in your 22 question, does RedHat as part of its operating 23 system product include several browsers, yes. 24 But as part of its operating system, no. 25 THE COURT: Sir, could you adjust your 7466 1 microphone? 2 THE WITNESS: Oh, I'm sorry. 3 Q. And using your terminology, those web 4 browsers are bundled and tied to those 5 operating systems; correct? 6 A. No. No, they're not. 7 Q. Okay. So let's take them one by one. 8 Safari and Mac OS X Tiger, is it 9 bundled or tied or both? 10 A. It's bundled. Excuse me. It's 11 bundled. 12 Q. And that is so, despite the fact as we 13 said yesterday, there are dependencies between 14 Safari and other parts of Mac OS X Tiger? 15 A. That's correct. 16 Q. Okay. And so what in your mind, sir, 17 distinguishes those two terms, bundling and 18 tying as they relate to Mac OS X Tiger? 19 A. Well, bundling is, as I described over 20 the past several days, it's where you put the 21 two separate products into the box and make 22 them available. 23 Tying is where you at least make it, 24 in the particular case here, the user unable to 25 remove it or where you create 7467 1 cross-dependencies as opposed to vertical 2 dependencies. 3 One, a top layer piece of software 4 relying on the services of a lower level piece 5 of software. 6 And in the third case where you would 7 commingle, where you would include portions of 8 the browser product inside the operating system 9 product. 10 So those three would constitute the 11 tying, different from where you would bundle 12 it, include it in the same box. 13 Q. Okay. Now, you recall yesterday, do 14 you not, sir, looking at the slide of the user 15 interface for the Be operating system? 16 A. Yes, I do. 17 Q. Okay. And if I'm fast enough here, 18 I'll get the number and we could look at it 19 again. 20 MR. HOLLEY: Could we see Slide Number 21 760, please? 22 Q. Now, as you said yesterday in your 23 testimony, this window in the lower left corner 24 called NetPositive, that's the web browser that 25 is part of the BeOS; correct? 7468 1 A. That is a web browser that is 2 available on the BeOS. 3 Q. Right. Is it bundled or tied, sir? 4 A. It's bundled. 5 Q. Isn't it also tied in this respect, 6 that Be has decided that they're going to make 7 the documentation, the welcome to DOS tutorial 8 and other information available to users in 9 HTML format through the NetPositive web 10 browser, and if you take it out, all of that 11 functionality disappears? 12 A. No. The -- no. 13 Q. Okay. Have you looked at the BeOS and 14 the warning messages that are displayed if you 15 seek to delete the NetPositive web browser? 16 A. I don't recall at this time here. 17 Q. Have you looked at the warning 18 messages that are displayed if you seek to 19 delete QuickTime from Mac OS X Tiger? 20 A. In the past I have looked at it. Not 21 recently. Not for Tiger, no. 22 Q. Apple tells consumers not to delete 23 QuickTime because it provides services to other 24 parts of the operating system; correct? 25 A. As to Tiger, as I told you, I don't -- 7469 1 I haven't looked at that. 2 Q. So in testifying just now that Safari 3 is bundled but not tied, you haven't looked to 4 see what Apple says to customers who try to 5 delete Safari; is that correct? 6 A. I have -- I don't use Safari on my Mac 7 OS Tiger. I have no reason to believe that my 8 system is any less stable for that. 9 Q. You don't use it because you use 10 Mozilla Firefox; correct? 11 A. That's correct. 12 Q. But you haven't deleted Safari, have 13 you, sir? 14 A. I put it in the trash can, recycle. 15 Q. But did you go into the system and 16 delete the code that comprises Safari from Mac 17 OS X Tiger? 18 A. No. 19 Q. Now, on direct examination you 20 testified, I believe, sir, that there was no 21 technological benefit whatsoever for 22 Microsoft's inclusion of web-browsing 23 functionality in Windows. Did I understand you 24 correctly? 25 A. I don't think I used those words. 7470 1 Q. In sum or substance, is that what you 2 said? You said that bundling or tying Internet 3 Explorer to Windows gave rise to no technical 4 benefit at all? 5 A. I don't think, again, I used that 6 language, but I'd be happy to look at that. 7 Q. Okay. Well, do you recall being asked 8 the question: Mr. Alepin, from a technological 9 standpoint, if someone were to claim to you 10 that it was necessary for Windows to bundle or 11 tie Internet Explorer in order to get 12 technological advancements, what would your 13 response to that statement be? 14 I would say no. I would disagree with 15 it. 16 And then Mr. Lamb asked you, can you 17 explain to the Jury why? 18 And your answer was, because it's not 19 necessary to include the browser as part of the 20 operating system in order to achieve any 21 important -- or any benefit at all. 22 So that was your testimony; right? 23 A. Thank you. 24 Q. Okay. So you agree, although maybe my 25 formulation of words is slightly different, 7471 1 that bundling or tying Internet Explorer to 2 Windows achieves no technical benefit at all in 3 your view? 4 A. I believe the answer was it was 5 unnecessary to achieve the technological -- 6 whatever the functionality was by doing the 7 tying and bundling. 8 Q. I'm going to show you a slide that we 9 created, Number 701, which lists the 10 components, the Internet Explorer components, 11 of Windows. 12 And you're familiar with these, are 13 you not, sir, these components? You've heard 14 of them? 15 A. Yes, I have. Yes. 16 Q. Okay. When you say that there was no 17 benefit technologically from bundling or tying 18 Internet Explorer to Windows, are you referring 19 to all of those components? 20 A. There is no -- there is no benefit 21 that could not have been achieved by other 22 means than tying and bundling. 23 Q. Well, didn't you tell me at your 24 deposition, sir, that it would be okay in your 25 view for Microsoft to include an HTML parsing 7472 1 and rendering engine in Windows? 2 A. Okay is different from technological 3 alternatives. 4 Q. Okay. I appreciate that, but I'm just 5 asking you a question. 6 You did say that at your deposition, 7 didn't you? 8 A. I -- again, I've had two lengthy 9 depositions in this case. I'd like to be able 10 to read the passage in particular. 11 Q. Well, let me ask you just right now to 12 save time, it is not your testimony, is it, 13 sir, that there was something wrong with 14 Microsoft's decision to include an HTML parsing 15 and rendering engine in Windows? 16 MR. LAMB: Objection. Calls for a 17 legal conclusion. 18 THE COURT: Sustained. 19 Q. There was a technical benefit to other 20 parts of Windows, to software developers, and 21 to users from the inclusion of an HTML parsing 22 and rendering engine in Windows; correct? 23 MR. LAMB: Objection. Irrelevant just 24 to time given the Findings of Fact between '95 25 and '99, Your Honor. 7473 1 THE COURT: Sustained. 2 Q. Since June 24th of 1999, there has 3 been a technical benefit to software 4 developers, to other parts of Windows, and to 5 users from the inclusion of an HTML rendering 6 engine in Windows; correct? 7 A. Well, now that there are dependencies 8 that have been created on Microsoft's HTML and 9 -- HTML rendering engine as part of the 10 operating system product, continuing that as 11 some benefit for those users and software 12 developers who relied on that -- on that way of 13 providing the software as part of the operating 14 system package bundled and tied in that way. 15 Q. And as we saw yesterday, one of those 16 software developers who benefits by being able 17 to call upon these components up on the screen 18 is Quicken, Intuit's Quicken; right? 19 MR. LAMB: Same objection as to time, 20 Your Honor. 21 THE COURT: Sustained. 22 Q. As we were looking yesterday at 23 Quicken 2007. 24 So Quicken 2007 benefits by relying on 25 the HTML parsing and rendering engine and the 7474 1 other Internet Explorer components of Windows? 2 You said that yesterday, didn't you, sir? 3 A. I did. And is your question -- 4 Q. I just wanted to make sure that we're 5 still on the same page. You haven't changed 6 your mind about that, have you? 7 A. No. I was just agreeing that I had, 8 in fact, testified yesterday. I didn't know 9 whether I -- whether the earlier question was 10 still up. 11 Q. Well, the Judge sustained an objection 12 to one question I asked. So I was asking you a 13 different question, which is: You testified 14 yesterday, sir, that Quicken 2007 benefits from 15 its reliance on these Internet Explorer 16 components in Windows? 17 A. I believe Quicken is now in the 18 position of having created dependencies on -- 19 in its program on those -- on the bundled and 20 tied components of Microsoft's Internet 21 Explorer. 22 I think that Quicken or Intuit and 23 Intuit's executives were rather ambivalent is 24 my recollection about what that would mean for 25 them, including how that might interfere with 7475 1 their relationships with Netscape at the time. 2 But now that they've included those 3 dependencies, I think the answer to your 4 question is yes. 5 Q. And the same is true of this NetGear 6 router that you were asked about by Mr. Lamb, 7 is that not also correct? The people who make 8 the NetGear router have decided, for their own 9 reasons, to call upon the Internet Explorer 10 components of Windows; is that right? 11 A. That's an interesting question because 12 NetGear supplies -- on this same disk as the 13 installation material, it supplies its 14 documentation and it supplies the documentation 15 in PDF format, which is a very popular format 16 for -- portable document format. It's a very 17 popular format for exchanging documents in the 18 way that the author of the document intended 19 them -- intended for them to be seen. 20 The NetGear folks redistribute their 21 documentation in the Acrobat PDF reader 22 software in case I don't have the PDF reader 23 software on the disk, but they don't distribute 24 the Internet Explorer software on that disk 25 relying now, I believe, on the fact that 7476 1 Internet Explorer is inevitably on the disk -- 2 on the user's computer system. 3 That is -- therefore, they have made 4 the decision to rely on the presence of that 5 bundle and tie on the computers for their 6 users. 7 Q. And, in fact, they like that, don't 8 they, sir? They like the fact -- NetGear likes 9 the fact that they know that this particular 10 feature of Windows that they have elected 11 themselves to call upon will be present in 12 every copy of Windows on which a consumer might 13 elect to install their product? 14 A. See, that -- well, to begin with, I'm 15 not sure I know whether the NetGear folks like 16 it or not, but it seems to me the fact that 17 they include the PDF reader software for their 18 documentation means that they'd be quite okay 19 with installing browser software if they needed 20 to install browser software on a user's 21 computer that didn't have it. 22 Q. That's purely your speculation, isn't 23 it, Mr. Alepin? 24 A. I began my answer by saying I don't 25 know what the NetGear people are thinking. 7477 1 MR. HOLLEY: Your Honor, can I go grab 2 a box over there? 3 Q. Now, when Mr. Hagstrom was having his 4 problem with the NetGear router, did you have 5 occasion to look at the box? 6 A. Yes. 7 Q. Okay. And I presume that you looked 8 on the bottom of the box at something called 9 system requirements? 10 A. Not this time. I own one of those. 11 In fact, I own one of most everything actually. 12 So this time I didn't need to or felt I didn't 13 need to read the requirements at the bottom. 14 Q. Okay. Would it surprise you, sir, 15 that the bottom of the box says system 16 requirements Internet Explorer 5.0 or Netscape 17 4.7 or higher? 18 A. It would not surprise me, but it would 19 -- actually, it would surprise me because it 20 turns out that it's inaccurate. 21 Q. So whatever this says, it doesn't work 22 with Netscape 4.7 or higher? 23 A. That's correct. 24 Q. Okay. Is this a common sort of thing, 25 this idea of having products have system 7478 1 requirements that consumers are told about? 2 A. It's a -- it's a common practice to 3 include system requirements in hardware and 4 software packages, yes. 5 Q. And that's done, is it not, 6 Mr. Alepin, because frequently products are 7 designed with certain dependencies on other 8 software or hardware just assumed? 9 A. Well, there are broader reasons, but 10 one of those reasons would be a design reason. 11 Q. A design reason in the sense that a 12 particular product, for example, the NetGear 13 router, was designed in order to depend on 14 particular functionality in Windows? 15 A. That's one of the reasons. That's 16 correct. 17 Q. Now, you've testified previously, have 18 you not, that users get a benefit in getting 19 Internet Explorer with Windows; is that right? 20 A. Do you have a particular context in 21 which I've said that? 22 Q. Sure. Among my massive paper here. 23 MR. HOLLEY: Your Honor, may I 24 approach the witness? 25 THE COURT: Yes. 7479 1 Q. I'm going to show you, Mr. Alepin, 2 your July 18, 2006 deposition in this case, 3 sir. 4 And if you would, please, can you turn 5 to page 161, line 16 through 23. 6 MR. LAMB: What page did you say, Mr. 7 Holley? 8 MR. HOLLEY: Mr. Lamb, it's 161. 9 Q. And could just -- I don't mean to get 10 ahead of you, but can you tell me when you are 11 there, please? 12 A. I'm at page 161. 13 Q. Okay. So what I'm interested in is, 14 do you remember being asked this question and 15 giving this answer. 16 I asked you, what benefits do you see 17 from having web-browsing functionality in 18 Windows or the Mac OS or OS/2 or every version 19 of Linux. 20 And you answered, well, I think there 21 is a benefit to having web-browsing 22 functionality with Windows, not in Windows. 23 And I asked you the question, and what 24 benefit is that? 25 And your answer was, that you can 7480 1 browse the web, which is a nice thing. 2 And you agree with that; right? 3 A. Browsing the web is a nice thing, I 4 do. 5 Q. In fact, that's one of the principal 6 reasons that people buy PCs now, isn't it, that 7 they want to browse the web and go do things on 8 the Internet? 9 A. I think I said that very thing in my 10 direct examination, yes. 11 Q. And you don't object to Microsoft 12 distributing IE with Windows, do you? 13 A. Object is a -- in a sense -- in what 14 particular sense? 15 Q. Well, let's go again to the 16 deposition. 17 Let's look at page 168. It starts on 18 the prior page. The transcript seems slightly 19 garbled, but what it says is, I asked you the 20 question, okay, and did you reach a judgment 21 that the statements that were made in 1993 and 22 1994 were while Marc Andreessen was still in 23 college. 24 And just so we are clear here, who is 25 Marc Andreessen? 7481 1 A. Marc Andreessen still is a founder, 2 one of the founders of Netscape Corporation. 3 He was active in the development at the 4 University of Illinois Champaign-Urbana and 5 came to California to be a part of the team 6 that created the first version of Netscape 7 Navigator. 8 He's now, I believe, at a company also 9 that he founded called Opsware. 10 Q. Okay. Sorry for that interruption. 11 Let's go back. 12 So the question was, okay. And did 13 you reach a judgment that the statements that 14 were made in 1993 and 1994 were while Marc 15 Andreessen were still in college were all 16 pretextual about the -- it says without, but I 17 think I said about -- about the benefits of 18 including web-browsing functionality in 19 Windows. 20 And your answer was -- there was an 21 objection, and then your answer was, the 22 benefits of including web-browsing as 23 functionality that would be available to users 24 is one thing. I'm not objecting to IE with 25 Windows. 7482 1 A. Uh-huh. 2 Q. And by that you meant, sir, that 3 you're not objecting to Microsoft's 4 distribution of an operating system product 5 that includes web-browsing functionality, are 6 you, sir? 7 A. In that context, no. 8 Q. Now, I have one last question about 9 web-browsing, and then we can move on. 10 You testified on direct examination 11 that the Mozilla Firefox developers were having 12 problems getting their product to work with 13 Windows Vista; is that right? 14 A. That's my understanding. 15 Q. And that is based on what, sir? 16 A. A review of the press, trade press 17 coverage, as well as looking at some of the 18 blogs that are -- blog is being interactive 19 postings that the developer community is using 20 to pass information back and forth. The 21 equivalent of diaries, shared diaries, if you 22 will. 23 Q. You personally don't have any 24 involvement in this at all, do you? I mean, 25 trying to get Mozilla Firefox to run on Vista? 7483 1 A. No, I don't. 2 Q. So your opinion is based on what 3 you've read in the press and what you've seen 4 on blogs; is that right? 5 A. That's correct. 6 Q. Okay. Have you had occasion, sir, to 7 review a blog called -- a Google blog called 8 Mozilla.deaf.planning? 9 A. Not in this particular -- not in this 10 particular time frame, no. 11 Q. Okay. Well, how did you go about 12 deciding which blogs to look at before you 13 decided to come in here and say that the 14 Mozilla Firefox people were having problems 15 getting their product to run on Vista? 16 A. I went to the -- I followed the 17 article and the references cited in the 18 articles that appeared in the trade press to 19 see if I could get an understanding as to 20 what's going on. 21 Q. Okay. 22 A. I had previously heard that Microsoft 23 had been in contact with the developers in -- I 24 think around the September time frame, and 25 accordingly it struck me as kind of odd that 7484 1 they were still having problems this late in 2 the game. 3 Q. Okay. Are you familiar with a 4 gentleman who works for Microsoft called Sam 5 Remja, R-e-m-j-a? 6 A. He may have been the person in the 7 September piece, but, no, I -- no, I'd have to 8 say. 9 Q. Are you familiar, sir, with something 10 called the open source software lab on the 11 Microsoft campus Redmond, Washington? 12 A. I have heard of it. 13 Q. Okay. And you are aware, are you not, 14 sir, that the Firefox Mozilla development team 15 was invited by Microsoft, by Mr. Remja, to come 16 to the Microsoft open source software lab in 17 Redmond for one-on-one support in order to get 18 Firefox to run on Vista? You know that, don't 19 you, sir? 20 A. I think that is what I was referring 21 to in the September time frame. 22 Q. Okay. And do you know whether the 23 Mozilla people took Microsoft up on its offer 24 and went to Redmond and got that one-on-one 25 support that they were offered? 7485 1 A. I don't. 2 Q. Now, I want to switch gears here now 3 and talk a little bit about OS/2 from IBM. And 4 you remember giving testimony on direct 5 examination -- 6 THE WITNESS: Can we take a break? 7 THE COURT: You want a break? 8 THE WITNESS: Yes. 9 THE COURT: Sure. It's time for 10 recess. We will take a 10-minute recess at 11 this time. 12 Remember the admonition given earlier, 13 and see you in about 10 minutes. 14 THE WITNESS: Thank you. 15 THE COURT: All rise. 16 (A recess was taken from 9:47 a.m. 17 to 10:05 a.m.) 18 THE COURT: Okay, Mr. Holley. 19 BY MR. HOLLEY: 20 Q. Mr. Alepin, just before the break, we 21 were switching topics to OS/2, and you 22 testified on direct, sir, that Microsoft 23 delayed giving Windows 3.1 source code to IBM 24 that would have disclosed to IBM that Windows 25 3.1 was no longer a DPMI client. 7486 1 Did I understand your testimony 2 correctly? 3 A. Excuse me -- no longer a full DPMI 4 client, that's correct. 5 Q. Now, in forming that view, did you 6 review the e-mail records of Microsoft about 7 what was sent to IBM and when? 8 A. I reviewed some e-mail records, yes. 9 Q. And you tried, did you not, sir, to 10 review the e-mail records that were relevant to 11 this question, did you not? 12 A. I tried, yes. 13 Q. Okay. Did you, sir, review 14 Defendant's Exhibit 898, which was an e-mail 15 exchange among various developers at Microsoft 16 concerning what code IBM got? 17 A. If I could remember that based on -- 18 based on that description, that would be pretty 19 good. 20 Q. Well, that's a lot to ask. 21 MR. HOLLEY: Your Honor, may I 22 approach? 23 THE COURT: Do you need some copies 24 made? 25 MR. HOLLEY: I think I'm fine, Your 7487 1 Honor. I've done Mr. Lamb the favor of giving 2 him -- 3 MR. LAMB: Mr. Holley, do you have any 4 tab of notes? 5 MR. HOLLEY: No, I don't have any 6 notes. 7 May I approach? 8 THE COURT: Sure. I was just going to 9 offer Carrie to make a copy. 10 MR. HOLLEY: No, Your Honor. I 11 probably should have another set, but I don't. 12 THE COURT: Okay. 13 Q. Now, among the documents that you 14 looked at in forming this view about this DPMI 15 issue, did you look at the e-mail on the second 16 page of this document, which is an e-mail from 17 Mr. Cole? 18 A. The second page. I see one from Andy 19 Hill and one from Tonya. 20 Q. Okay. 21 A. On the second page -- 22 Q. Second page. Now, I am sort of -- 23 Mr. Lamb is being nice to me. 24 Okay. So I'm looking at the e-mail 25 from Andy Hill, and he was, as you testified, a 7488 1 Microsoft developer; correct? 2 A. Yes. 3 Q. To Sherry V. and Janine H., and do you 4 see there in the third paragraph, sir, where it 5 says Janine H., double-check what we shipped 6 and the DPMI code is definitely in there? 7 A. I see that. 8 Q. Okay. And this e-mail is entitled IBM 9 questions about 3.1 code; correct, sir? 10 A. That's correct, yes. 11 Q. And your understanding is that's a 12 reference to Windows 3.1; right? 13 A. That's a reference to the Windows 3.1 14 product under development, I believe. 15 Q. My question is not meant to be tricky. 16 I just want to make sure that your 17 understanding is that the shorthand 3.1 is a 18 reference to Windows 3.1; right? 19 A. Oh, yes. 20 Q. Okay. And the date of this e-mail is 21 March 26, 1991; is that right? 22 A. Yes. 23 Q. And Windows 3.1 was commercially 24 released one year later; is that correct, in 25 March of 1992? 7489 1 A. That sounds correct. I think it was 2 late the first quarter of two thousand -- 1992. 3 That would be March, yeah. 4 Q. Yeah. So IBM had the DPMI code for a 5 year before Windows 3.1 was commercially 6 released; correct? 7 A. It had different versions of the DPMI 8 code over time. 9 Q. Correct. Every month they got a new 10 drop under the arrangements between Microsoft 11 and IBM of the Windows 3.1 source code? 12 A. That's my understanding of how things 13 worked. 14 Q. And you have testified in a prior 15 proceeding that once IBM had the DPMI code, it 16 could do the work necessary to provide DPMI 17 support in OS/2; correct? 18 A. That's a -- not my formulation, but 19 once it had the DPMI software, it understood 20 that Microsoft had changed the DPMI software in 21 Windows so that, contrary to what Microsoft had 22 said, it was no longer going to make Windows 23 DPMI client -- a full DPMI client. 24 Q. Well, is it your testimony that, in 25 fact, Microsoft made that change or just that 7490 1 they thought about it? 2 A. It's my understanding that they made 3 that change. 4 Q. And that is based on your review of 5 the record in this case; correct? 6 A. That's -- that's correct. 7 Q. Okay. Now, in reaching that opinion, 8 did you review an e-mail from Mr. Cole -- and 9 Mr. Cole was in charge of Windows 3.1 10 development on a day-to-day basis; correct? 11 That's your understanding of his job 12 at the time in 1991? 13 A. I'm not sure whether he was a program 14 manager, which is like a project manager, or 15 whether he was the development manager. I 16 thought he was the program manager, but I'll 17 accept that he had -- that he had 18 responsibility as an executive for Windows 19 development. 20 Q. Okay. And my question to you, sir, 21 is, did you review the e-mail that Mr. Cole 22 wrote to Mr. Silverberg, who was the vice 23 president in charge of Windows development in 24 1991, about the status of the DPMI support in 25 Windows? 7491 1 A. I reviewed several correspondence 2 between Mr. Cole and Mr. Silverberg in that 3 time frame. 4 Q. I want to show you what's been marked 5 as Defendant's Exhibit 901. 6 Now, there -- and I want to blow up 7 just so we can all see it a little better this 8 center e-mail. 9 This is an e-mail from David Cole from 10 Brad Si, and you testified on direct that 11 that's the e-mail alias for Brad Silverberg; 12 correct? 13 A. Brad Si, yes. 14 Q. Right. And what Mr. Cole says is -- 15 and this is in August, so we're now five months 16 after March; correct? 17 A. That's correct. 18 Q. Okay. What Mr. Cole says is, this is 19 confusing. Janine H. says Earl H -- and that's 20 Earl Horton; correct? 21 A. I'm not sure what his final last name 22 is, but he's a Microsoft employee active in 23 this area. 24 Q. So Janine H. says Earl H. never took 25 any DPMI client code out of the product, 7492 1 exclamation mark. Apparently he thought it was 2 a bad idea. So according to Janine H. and some 3 mail from Earl H., we are 99 percent a DPMI 4 client now as we originally were. 5 Now, that suggests, does it not, sir, 6 that whatever Mr. Ballmer may have said or 7 whatever Mr. Gates may have said or whatever 8 anyone else may have said, Mr. Horton took it 9 upon himself to leave all the code in the 10 system; correct? 11 A. Well, there's a difference, first of 12 all, between leaving the code in the system and 13 making it function in the retail product, much 14 like the AARD code remained in the Windows 15 product, although it was -- it didn't result in 16 an error message. 17 And the second point on that is, under 18 the whatever anyone else said, I believe it's 19 Doctor Koogan, who was the head of OS/2 20 development at IBM indicated that the Windows 21 DPMI client status changed in the retail 22 product. 23 Q. Well, okay. That's interesting, but 24 not what I asked. 25 I mean, IBM got, as you testified, 7493 1 every month the code, the source code for 2 Windows 3.1. We agree on that; right? 3 A. I believe -- that was the way the 4 contract was supposed to work, and that's the 5 way I understood it to work. 6 Q. And what this e-mail says is that even 7 though Mr. Ballmer apparently said at some time 8 to take the DPMI client code out, Mr. Horton 9 decided that that was a bad idea and he left it 10 in; correct? 11 MR. LAMB: Objection. Misstates the 12 document itself. There's no reference to 13 Ballmer. 14 THE COURT: Overruled. 15 He may answer if he can. 16 A. Mr. Horton apparently left the code in 17 the -- in the Windows software. 18 Q. Okay. Now, you testified just now 19 about what somebody from IBM thought about this 20 DPMI issue; correct? 21 A. That's correct. 22 Q. Did you happen in forming your views 23 on this subject to review the testimony of the 24 president of IBM's PC software company at the 25 time, Mr. Reisweig? 7494 1 A. Well, as I think I indicated 2 yesterday, there are -- I reviewed some of 3 Mr. Reisweig's testimony. I believe one of his 4 depositions went on for five days or something 5 like that. 6 Q. And you reviewed all the parts of 7 Mr. Reisweig's deposition, although lengthy, 8 that you thought you needed to review in order 9 to express the opinions that you've expressed 10 to the Jury; right? 11 A. In order to factor them into my 12 conclusions, yes. 13 Q. I'd like to play you a clip from 14 Mr. Reisweig's January 20, 2002 deposition, and 15 then I'm going to ask you a question about it, 16 sir. 17 (Whereupon, the following video was 18 played to the jury.) 19 Question: And you were asked some 20 questions by the other attorneys about DPMI. 21 Let me just ask you a couple of questions about 22 that. 23 Is it true that you don't recall any 24 important issues about DPMI arising during your 25 tenure as head of IBM's personal software 7495 1 products division during 1990 to 1995? 2 Answer: In thinking about this and 3 these questions, I do believe that I recall 4 Windows 3 used DPMI as a -- for access to high 5 memory above 640 kilobytes. 6 And since we had DPMI support planned 7 in OS/2, it meant that we would be able to 8 provide Windows application binary 9 compatibility if we could run Windows using 10 that support in OS/2's multiple virtual DOS 11 capability as one of the alternatives to get 12 WABCC. 13 Now, you asked me about were there 14 issues between IBM and Microsoft about DPMI. 15 And I honestly don't remember if there were 16 issues between us about it. 17 Question: So as you sit here today, 18 having run that group for five years, you can't 19 recall any problems that arose in connection 20 with DPMI? 21 Answer: There may have been some 22 problems. I don't remember the specifics of 23 it, and I believe we shipped Windows with DPMI 24 support and OS/2 with DPMI support. 25 Question: Do you have even a general 7496 1 recollection of there being any problems? 2 Answer: No. 3 (Whereupon, playing of the video 4 concluded.) 5 BY MR. HOLLEY: 6 Q. Now, this is the man who ran OS/2 at 7 IBM; correct? 8 A. I believe that's the case. I believe 9 he was the president of the IBM software group. 10 I think you gave me that title. 11 Q. Right. From 1990 through 1995, which 12 is what he said in the tape; right? 13 A. Yes. 14 Q. So he was the president in 1991 when 15 this allegedly occurred; correct? 16 A. Necessarily so. 17 Q. Okay. And you didn't think it was 18 important to tell the Jury when you testified 19 that this was a big problem for IBM, that 20 Mr. Reisweig, the executive in charge, didn't 21 think it was a problem at all? 22 A. The person who was directly involved 23 with it, the head of OS/2 development, was the 24 person who had, in my view, a better view of 25 what was going on. 7497 1 Q. A better view than the president of 2 IBM's PC software company? 3 A. That's correct. This is a technical 4 issue, and it involved development and 5 developers. 6 Q. Okay. Let's move on now to a slightly 7 different topic. 8 I want to talk about the initial boot 9 sequence of Windows. 10 And do you recall giving testimony on 11 direct about the initial boot sequence of 12 Windows? 13 A. I do. 14 Q. And just to be clear, when we talk 15 about the initial boot sequence of Windows, we 16 are only talking about the very first time that 17 you turn on a new PC out of the box that runs 18 Windows? 19 A. Well, there is -- if you want me to 20 limit our conversation going forward to that 21 specific type of initial boot sequence, then 22 I'd be happy to do that. 23 But each time you boot the computer, 24 of course, there's the initial booting -- the 25 initial boot sequence is as I described it, 7498 1 start the bios and then do all this other 2 checking and stuff. 3 But we can describe or refer to the 4 initial out-of-the-box experience of a customer 5 opening up the computer and turning it on for 6 the first time as the initial boot sequence. 7 Q. Okay. Well, I don't want to dictate 8 anything to you. 9 I just want to understand, when you 10 were testifying on direct, were you talking 11 about every time the computer turns on or were 12 you talking about what you've now described as 13 the out-of-box experience? 14 A. Well, I described -- in the course of 15 explaining how computers work, I described the 16 bootup sequence and how computers -- and what 17 components are involved in the bootup sequence. 18 I described a bootup sequence where 19 users would every time they turned on the 20 computer be presented with the ability to 21 choose which operating system they wanted to 22 run if they had a dual boot computer, and then 23 I talked about the bootup sequence that is the 24 out-of-box experience. 25 Q. Okay. So it's important in 7499 1 understanding your testimony on direct to 2 distinguish between these cases. 3 Some of your testimony related to only 4 the very first time that a computer is turned 5 on, and other parts of your testimony related 6 to every time a computer is turned on; correct? 7 A. That's fair, yes. 8 Q. Okay. Now, specifically with 9 reference to this slide that I think you 10 showed, or something very similar to this -- 11 I'd like to show you Slide Number 1008, excuse 12 me. 13 Now, this is this Packard Bell 14 Navigator shell that you described on direct 15 testimony; correct? 16 A. Yes. 17 Q. Okay. Now, you said that Microsoft 18 prevented Packard Bell from having this user 19 interface displayed in the initial bootup of 20 Windows. 21 And I just want to be clear whether 22 that was in the out-of-box experience, when 23 somebody goes to Target and buys a new PC and 24 brings it home and pulls it out of the box, or 25 whether you were talking about every day when 7500 1 you turn the PC on. 2 A. I believe I mentioned -- I described 3 the Navigator as part of the auto start 4 function. 5 So once the system was up, the -- once 6 Windows had booted, there was a provision in 7 the system start-up that said okay, Windows, 8 after you've got everything up and running, 9 then you can start this program. 10 Q. Okay. 11 A. And I was referring to the Navigator 12 with respect to the auto start. 13 Just to be clear, I had talked about 14 different kinds of restrictions, one of which 15 had to do with the out-of-the box, one of them 16 had to do with the dual boot, another one had 17 to do with auto start and larger icons. I 18 mean, these are the conclusions of law. 19 Q. Right. And you may not be happy to 20 hear this, but I intend to talk about all of 21 those things. 22 But what I'd like to talk about right 23 now is this. 24 Okay. And what you said on direct was 25 that what Microsoft didn't let Packard Bell do 7501 1 was the very first time I bought a 2 Windows-based PC and brought it home and turned 3 it on, Packard Bell couldn't boot the system so 4 that this was the first screen that somebody 5 saw. Is that your understanding? 6 A. After the operating system started, 7 that's correct. 8 Q. But, in fact -- yeah, and the 9 operating system would start, and you'd never 10 see the Windows screen. You'd go right to this 11 screen; correct? 12 A. That was what Packard Bell sought to 13 do. 14 Q. That is correct. 15 Now, you notice here, for example, 16 that they have completely obscured the start 17 button of Windows 95? 18 A. There's a Windows button on the upper 19 right-hand side, second from the right top. 20 Q. Okay. I see that. That means that if 21 I'm smart enough to figure it out, I can get to 22 the Windows desktop. 23 But my question to you, sir, was this 24 UI, this shell that Packard Bell created 25 completely obscures the Windows 95 start 7502 1 button, doesn't it? 2 A. Yes. 3 Q. Okay. And it obscures the system tray 4 and it obscures the task menu, doesn't it? 5 A. Well, the same way that any 6 application that is running on the full screen 7 obscures what's underneath it. 8 Q. Now, did you have occasion in forming 9 your views about these sorts of OEM shells to 10 review the written direct testimony of Joachim 11 Kempin from Microsoft in a prior proceeding? 12 A. Which proceeding would that be? 13 Q. I am referring to United States 14 against Microsoft, sir. 15 A. Which -- which one? 16 Q. This is the first one. 17 A. Forgive me. This is with respect to 18 the -- under the consent -- brought under the 19 -- 20 Q. Let's try to short-circuit this 21 because I don't want to get into a long 22 discussion of which one is which. 23 A. If you could give me the dates, it 24 would be a lot easier. 25 MR. HOLLEY: May I approach the 7503 1 witness, Your Honor? 2 THE COURT: Yes. 3 Q. Now, Mr. Alepin, this is the written 4 direct testimony of Joachim Kempin of 5 Microsoft. 6 And as you testified on direct, 7 Mr. Kempin was the vice president of Microsoft 8 in charge of its dealings with computer 9 manufacturers and they're also referred to 10 frequently as OEMS; is that right? 11 A. That's my understanding. 12 Q. Okay. Now, in forming your views, did 13 you look at page 8 to paragraph 37 of 14 Mr. Kempin's written direct testimony? 15 A. I'm just familiarizing myself with 16 that. 17 Q. I don't want to rush you. Take as 18 much time as you need. 19 A. Thank you. 20 I did, yes. 21 Q. Okay. And one of the things that 22 Mr. Kempin says in paragraph 37 is that these 23 OEM shells that we're talking about were 24 frequently of poor quality. 25 You see that, do you not, sir? 7504 1 A. I do. 2 Q. And he also says that they obscured 3 basic functionality of the operating system 4 like the start menu; correct? 5 A. That's what he's saying, yes. 6 Q. And he also notes that in particular 7 -- sorry, can you -- yeah. 8 That this Packard Bell Navigator had 9 the unfortunate consequence of disabling right 10 mouse clicking. 11 Do you see that, sir? 12 A. Yes, I do see it. 13 Q. Okay. What happened to Packard Bell? 14 They went bankrupt and they're no longer in 15 business, isn't that right, sir? 16 A. I think they were acquired by NEC, 17 which is perhaps different from -- 18 Q. Were they acquired out of bankruptcy, 19 sir? 20 A. I'm afraid I don't know whether they 21 were or not, but I can still -- I believe I can 22 still buy a Packard Bell computer in different 23 countries, so -- 24 Q. Now, you testified that one of the 25 things that Microsoft did was to inhibit the 7505 1 ability of OEMs to provide tutorials to users; 2 correct? 3 A. I think that that's not exactly the 4 way I phrased it. 5 Q. Well, okay, I don't want to put words 6 in your mouth. 7 But you did say, did you not, sir, 8 that these restrictions that you were talking 9 about prevented OEMs in the initial boot 10 sequence, the very out-of-box experience of 11 Windows, to put tutorials in that process; 12 correct? 13 A. Mr. Kempin and I are referring, I 14 believe, to the same thing here, which is the 15 auto start provisions, not the initial out of 16 -- the initial bootup sequence. 17 Q. Okay. 18 A. But, yes. But with that 19 clarification. 20 The part of the function that OEMs 21 intended to have performed by this software 22 shell that was there to greet their users 23 included the ability to run tutorial software 24 that would introduce them to the functions and 25 features of their computer, much like Microsoft 7506 1 has a tutorial that comes with some of its 2 software. 3 Q. Now, I just -- I don't mean to go 4 backwards, but I want to make one point before 5 we move on from the shells to tutorials. 6 There was nothing ever, right, that 7 prohibited an OEM from putting an icon on the 8 desktop of Windows that, if the user chose, it 9 would launch into an alternate shell like 10 Packard Bell Navigator; correct? 11 A. There is -- those software developers 12 would find themselves perhaps denied 13 information, but the OEMs could bundle that 14 software and put it on the desktop as an icon. 15 Q. Okay. Well, let's -- you're 16 speculating about whether anyone ever was 17 denied necessary information; right? 18 A. No. 19 Q. You're speculating about whether any 20 developer of an alternate shell, like Packard 21 Bell, was denied information they needed to 22 create the shell, are you not, sir? 23 A. No, I'm not. 24 Q. Okay. What testimony are you relying 25 on from Packard Bell that they were unable to 7507 1 develop the shell that they created? 2 A. That they were unable to develop -- I 3 wasn't responding to Packard Bell specifically. 4 The question was more general, I believe. Your 5 question asked with respect to anyone, not just 6 Packard Bell. 7 Q. Okay. You're not testifying, are you, 8 sir, that Packard Bell was denied information 9 it needed to create the shell that it did, in 10 fact, create? 11 A. That wasn't part of their issue, if 12 you will. 13 Q. Okay. And I just want to be clear. 14 The answer to my question, which is there was 15 no restriction at any time on the ability of an 16 OEM to put an icon on Windows desktop that 17 launched into an alternate user interface like 18 the Packard Bell Navigator; correct? 19 A. I'm unaware of that. 20 Q. And that applies equally, does it not, 21 sir, to the notion of tutorials? 22 There was at no time ever a 23 restriction on the ability of OEMs to put icons 24 on the Windows desktop that launched tutorials 25 if the user decided that he or she wanted to 7508 1 watch it; correct? 2 A. I, again, am unaware of those kinds of 3 restrictions. 4 Q. Now, you testified that from 1995 to 5 1999, Microsoft prevented computer 6 manufacturers from placing large nonsquare 7 icons on the Windows desktop; is that correct? 8 A. Well, larger icons. I'm not sure I 9 described the limitations on geometry, but -- 10 Q. Well, but you were suggesting that 11 there was a restriction not only on size, but 12 on shape, or did I not understand that? 13 A. I think the -- I think focused 14 primarily on size and attributes associated 15 with them. 16 Q. Now, there was nothing ever, was 17 there, sir, that prevented an OEM from putting 18 as many icons as they wanted for any given type 19 of software preinstalled on the Windows desktop 20 so that the user saw it the very first time 21 they turned on the PC; correct? 22 A. Well, there was the awareness by OEMs 23 that the more icons you put on the desktop, the 24 more cluttered the computer appeared and the 25 more confusing the computer screen was. 7509 1 And, accordingly, there was a definite 2 awareness of the problems associated with 3 putting more icons or icons that were 4 duplicative of the same functionality. 5 So, I mean, there is something about 6 putting as many icons as you want. It reduces 7 the quality of your product. 8 Q. I'd like to show you a slide, which is 9 a screen shot of a Toshiba Satellite PC. And 10 I'm going to ask you a question about it. 11 Now, you told the Jury that you have, 12 I think you said, hundreds of PCs at your 13 office; right? 14 A. Well, I wouldn't go as far as 15 hundreds. More than 100, yes. 16 Q. More than 100. 17 A lot? 18 A. That's a lot, yes. 19 Q. That's okay. I think we can agree 20 that it's a lot. 21 Now, on this particular PC, despite 22 your testimony that OEMs are concerned about 23 desktop clutter, there are quite a few icons 24 preinstalled by Toshiba; correct? 25 A. There are quite a number of icons on 7510 1 the screen, that's correct. 2 Q. And among the icons that Toshiba 3 elects to put on the Windows desktop are one 4 relating to Toshiba console, one relating to 5 Toshiba access, and one which is a user's guide 6 for this particular PC; correct? 7 A. That's -- that's correct. 8 Do I -- or would it be helpful if I 9 knew what time period this was in or -- 10 Q. Well, have you within the last five 11 years purchased either a Sony VAIO or a Toshiba 12 Satellite PC and looked at what appears on the 13 Windows desktop the very first time you turned 14 the PC on? 15 A. Yes, I have. 16 Q. Okay. And so you are familiar, are 17 you not, sir, that both Sony and Toshiba 18 provide on the Windows desktop access to 19 tutorials for their PCs? 20 A. I believe that's the case, yes. 21 Although the user's guide is not a tutorial, I 22 believe. I believe it's a document, not a 23 tutorial in that sense. 24 Q. But there would be nothing to prevent 25 Toshiba, from your understanding, and there 7511 1 never was anything that would prevent Toshiba 2 from putting an icon on the Windows desktop 3 that would launch an interactive tutorial with 4 lots of audio and video? 5 A. That's correct. 6 Q. Now, let's shift gears slightly and 7 talk about dual booting software and your 8 testimony concerning the Be operating system. 9 First of all, I just want to 10 understand what your testimony was. 11 You said that Microsoft took actions 12 that inhibited the ability of Be to get its 13 operating system installed on new PCs. 14 Was that your testimony? 15 A. That's correct. 16 Q. Okay. Now, just so we understand what 17 the BeOS was, Be was never marketing the BeOS 18 as a replacement for Windows, were they? 19 A. Replacement for Windows. It was a 20 replacement for a personal computer or a 21 computer for use by people. 22 Q. Okay. That's my fault for not 23 identifying the time period. 24 So there was a period of time in which 25 Be was marketing these devices that were 7512 1 replacements for PCs, and then a time came when 2 BeOS was being marketed for use on Intel PCs; 3 correct? 4 A. That's correct, yes. 5 Q. Okay. My apologies. 6 So let's focus on the second phase of 7 the existence. 8 And in that phase, the BeOS was not 9 being markete