6864 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 XXVI 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., January 8, 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 6865 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 Attorney 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 6866 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY SHARON L. NELLES 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 MICHELE M. RAMSEY 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 RICHARD J. WALLIS STEVEN J. AESCHBACHER 20 Attorneys at Law Microsoft Corporation 21 One Microsoft Way Redmond, CA 98052 22 (425) 882-8080 23 24 25 6867 1 (The following record was made out of 2 the presence of the jury at 8:30 a.m.) 3 MR. LAMB: Your Honor, on the initial 4 day, Thursday, when we began testimony with 5 Mr. Alepin, starting at page 6461 running 6 through 6463 of the transcript, Mr. Holley made 7 a rather extensive speaking objection in front 8 of the jury. 9 We had already briefed this. We had 10 already discussed this and argued this before. 11 We then went back in chambers and we 12 argued it further, and then the Court came out 13 and issued a ruling, and the ruling was then 14 stressed to the jury, and the expression was it 15 was half of this, half of that. 16 And it's our position, Your Honor, 17 that we would request that the Court actually 18 read the ruling because it leads to unfairness 19 on the Plaintiffs' part because it's our 20 position that they tried to create some issues 21 in some areas of testimony that we never had 22 any intention of having Mr. Alepin testify to. 23 And on a broader matter, and we 24 discussed this, I believe, Friday in chambers, 25 we believe it is inappropriate to make these 6868 1 types of speaking objections in front of the 2 jury and then request a ruling. 3 What should happen is either party, 4 either us or the Defendants, should ask for an 5 out-of-the-jury's-presence conference back in 6 your chambers. It should be argued, and then 7 the Court should rule. There's no need to tell 8 the jury what the ruling is. 9 And if the argument is going to be on 10 the record, certainly the ruling needs to be on 11 the record for fairness. 12 THE COURT: Do you have the ruling? 13 MR. LAMB: I do, Your Honor. 14 It starts on 6487, Your Honor. 15 THE COURT: Do you want me to read 16 this to the jury? 17 MR. LAMB: Yes, Your Honor. 18 MR. HOLLEY: We have no objection, 19 Your Honor. 20 THE COURT: Very well. 21 As far as the other thing, if we have 22 an objection, just make your objection, and 23 we'll go back outside the presence of the jury 24 or dismiss the jury to make record on the 25 objection. 6869 1 MR. LAMB: Greatly appreciate that, 2 Your Honor. 3 THE COURT: Anything else? 4 MR. LAMB: No, sir. 5 THE COURT: Can we get the jury? 6 MR. LAMB: Yes, sir. 7 MR. TULCHIN: Your Honor, just one 8 minor thing. 9 We did hand the Court -- I hope Your 10 Honor got it -- a letter this morning about the 11 pending motions. 12 THE COURT: I left it in my office. 13 Thank you very much. I appreciate it, 14 too. I read it real quick, and thank you. 15 MR. TULCHIN: Sure. 16 THE COURT: That cuts it down. 17 (The following record was made in 18 the presence of the jury at 8:35 a.m.) 19 THE COURT: Everyone else may be 20 seated. 21 Court is going to first read to you a 22 ruling on an objection regarding the witness. 23 Court had an objection by the 24 Defendant and a resistance thereto. Record was 25 made outside your presence. The Court made a 6870 1 ruling, but not in your presence. I'll make a 2 ruling now in regard to the witness, 3 Mr. Alepin. 4 The witness may not offer opinions on 5 the following: Legal opinions, including 6 whether conduct is or is not anticompetitive, 7 whether the Defendant has complied with decrees 8 and court orders and judgments, and any 9 interpretation by the Defendant of any decrees, 10 judgments, orders, conclusions of laws -- 11 conclusion of law or findings of fact. 12 I guess that should be by the witness, 13 shouldn't it? 14 MR. LAMB: Yes, Your Honor. 15 THE COURT: Sorry. 16 He may not offer economic opinions. 17 He may not offer opinions on consumer behavior 18 or demand. 19 He may not give testimony on design of 20 PC operating systems. 21 He may testify as to how operating 22 systems in general are designed and developed 23 since I believe he does have some expertise in 24 that area. 25 He may also testify as to applications 6871 1 systems; how in general they are designed and 2 developed, and may testify as to what impact 3 the conduct or acts of the Defendant has had on 4 competitors or developers and the computer 5 industry from the standpoint of a person who 6 has expertise in the computer industry. 7 He's qualified to testify as to the 8 impact of companies' developments and 9 activities and conduct in regard to the 10 technological aspect of the industry itself, 11 but not economic and legal opinions. 12 Such opinions may include effects on 13 others in the industry, such as on technology 14 that was advanced or inhibited, but nothing 15 regarding economic success, opinions, or 16 consumer acceptance of things that may or may 17 not have been produced. He can't testify as to 18 what that would have been. He has no expertise 19 in that area. 20 He may state but for the alleged 21 conduct or acts of the Defendant that there may 22 have been or not have been advances in specific 23 computer technologies that he is an expert in 24 or knows of or has qualifications in or the 25 industry in general because he has expertise in 6872 1 the industry in general to say whether or not 2 but for certain conduct, acts of the Defendant, 3 there may have been advances in technology. 4 Did I read it all right? 5 MR. LAMB: Yes, sir. 6 THE COURT: I think you may have the 7 witness resume the stand. 8 He's got his water with him. You're 9 still under oath, sir. 10 RONALD ALEPIN, 11 recalled as a witness, having been previously 12 duly sworn, testified as follows: 13 DIRECT EXAMINATION (CONT'D) 14 BY MR. LAMB: 15 Q. Good morning, Mr. Alepin. 16 A. Good morning, Mr. Lamb. 17 Q. How are you this morning? 18 A. I'm fine, thank you. 19 Q. When we broke on Friday we were 20 reviewing the conclusions of law in relation to 21 the technology. 22 The first Conclusion of Law 4.1 is 23 Microsoft maintained the monopoly power in the 24 operating systems market by the following, 25 quote, anticompetitive conduct, end quote, 6873 1 i.e., conduct which caused harm to the 2 competitive process and thereby harm to the 3 consumers. 4 One, preventing OEMs from removing 5 visible means of user access to IE, parens, IE 6 desktop, icons, folders and start menu entries, 7 closed parens. 8 Sir, can you explain to the jury what 9 the phrase visible means of user access refers 10 to? 11 A. Sure. 12 The Windows operating system provides 13 several means by which a user can cause a 14 program to be activated. 15 For example, on the desktop, there can 16 be an icon that says Quicken, and if you click 17 on it, it launches the Quicken program for you. 18 Another way that a user could visibly 19 see a program and then launch it might be on 20 the start menu. 21 When you click the start button on 22 Windows 95 and the successor programs, you can 23 see an entry for the Internet Explorer, for 24 example, or Quicken, and if you click on it, 25 that will cause the program to launch. 6874 1 There are other ways that it can be 2 launched, including, for example, if you click 3 on the start menu and then you go to the 4 programs choice, you then get a submenu of 5 programs that are installed on your computer, 6 and you can click there, and that would be 7 another visible way of gaining access to a 8 particular program, in this case here the 9 Internet Explorer. 10 MR. LAMB: If I may, Your Honor, I 11 think we've got a bit of an echo, unless my 12 hearing is completely off, and I'm wondering if 13 that additional mike is on and that's causing 14 it. 15 Q. Mr. Alepin, can you describe for the 16 jury the ways that Microsoft prevented OEMs, 17 for example like IBM, from removing visible 18 means of user access to Internet Explorer? 19 MR. HOLLEY: Objection, Your Honor. 20 THE COURT: Overruled. You may 21 answer. Go ahead. 22 A. Well, Microsoft made as part of the 23 license agreement that OEMs needed to enter 24 into in order to be able to preinstall Windows 25 95 product on their computers a condition that 6875 1 stated if the OEM -- IBM could not remove any 2 of the icons that Microsoft placed on the 3 desktop when Microsoft handed the software to 4 the OEM, the Windows software to the OEM. 5 So that was one way in which Microsoft 6 prevented OEMs from removing the visible means 7 of access. 8 Q. Sir, can you explain to the jury 9 during what time period this conduct occurred? 10 A. This conduct began in the runup to the 11 launch of Windows 95 from 1995 therefore till 12 1999, I believe. 13 Q. Thank you, sir. 14 MR. LAMB: Could I get the next slide, 15 Darin? 16 Q. Conclusion of Law 4.2. 17 THE COURT: Just a minute, please. 18 Can you turn the mike off and turn the 19 other one on? The court reporter prefers the 20 other one. 21 Q. Conclusion of Law 4.2. Microsoft 22 maintained the monopoly power in the operating 23 systems market by the following, quote, 24 anticompetitive conduct, end quote: i.e., 25 conduct which caused harm to the competitive 6876 1 process and thereby harm to the consumers. 2 Two, prohibiting OEMs from modifying 3 the initial boot sequence of Windows. 4 Sir, could you explain to the jury 5 what initial boot sequence of Windows is? 6 A. Yes. The initial boot sequence of 7 Windows, or of a personal computer more 8 generally, is what happens when you turn on the 9 computer. 10 There is a set of prescribed steps 11 that take place, including I mentioned earlier 12 the power on self test that determines whether 13 everything is working properly from a hardware 14 perspective, to the hand-off, if you will, to 15 the operating system and the start-up of the 16 operating system. That's the initial boot-up 17 sequence. 18 What happens from power on until the 19 operating system launches and begins to present 20 the screens -- its screens to the user. 21 Q. Sir, your slide has a bullet point 22 option to go to AOL or Netscape initially taken 23 away. 24 Can you explain what that means? 25 A. Yes. In the time frame that we're 6877 1 talking about here, and a little bit before, in 2 the 1994-95 time frame, companies like AOL and 3 Netscape had made arrangements with OEM 4 computer vendors to show a screen to the user 5 during the initial boot-up sequence before the 6 operating system started that would ask the 7 user a series of questions and make the user 8 some offers or opportunities, for example, to 9 become a subscriber to America Online in this 10 particular case here. 11 So part of the initial boot-up 12 sequence for some of the OEM computers would 13 involve an opportunity to take -- become a 14 subscriber to AOL. 15 Microsoft's licensing provisions 16 prohibited OEMs from inserting that interaction 17 with the users during the initial 18 out-of-the-box experience that users were going 19 to have when they first turned on their 20 computer. 21 Q. And is this also the time period '95 22 to '99, sir? 23 A. This is -- well, it was prevented 24 during this 1995 to '99 period. 25 Q. Okay. 6878 1 MR. HOLLEY: Your Honor, may we 2 approach the bench? 3 (The following record was made out of 4 the presence of the jury at 8:47 a.m.) 5 THE COURT: Go ahead. 6 MR. HOLLEY: So, Your Honor, we're 7 exactly where I predicted we would be at 10 8 minutes to 3 on Friday, which is not only is 9 Mr. Lamb asking Mr. Alepin to define technical 10 terms in the conclusions of law, but he's 11 asking him to interpret them. And he's not 12 asking about any time period other than the 13 government case. 14 I let this go for two 15 question-and-answer series to make clear that 16 he's talking about the '94 to '99 time period 17 covered by the government case. 18 That's precisely what is covered by 19 collateral estoppel and what the Court's ruling 20 says that this man is not entitled to do. 21 As I said on Friday, I don't object to 22 saying what does the initial boot-up sequence 23 mean because presumably it would be helpful for 24 the jury to know that. But the Court has said 25 that Mr. Alepin cannot interpret the finding, 6879 1 not legally, not economically, not technically. 2 No one is supposed to do that. 3 The court instructed the jury that 4 they have to accept those findings, so I think 5 this is very improper, Your Honor. 6 MR. LAMB: Your Honor, first of all, I 7 think he is entitled to explain to them what 8 happened during that time period, okay. For 9 many instances the time period is the time 10 period as Mr. Holley refers to as the 11 government case. There are some that are 12 outside the time period, and he needs to be 13 able to explain that. 14 I don't think it's appropriate to 15 leave it in a vacuum to want to be forthright 16 and up front and explain to the jury what time 17 period applies. That's all we're doing. 18 Otherwise, it would be subject to cross- 19 examination. It's still subject to 20 cross-examination, but we're entitled to show 21 that. We want to not look like we're trying to 22 deceive the jury. Just pick out a couple and 23 say, "Hey, this is the real bad conduct." 24 In addition, in relation to all the 25 conclusions of law, there are technical terms. 6880 1 And I believe he's entitled and your ruling 2 comports with the fact that he's entitled to 3 explain to the jury what happened. 4 All he's telling them in relation to 5 the initial boot sequence is what it is, what 6 they were restricted from doing and what the 7 impact of that was. And I believe he's 8 entitled to do that technologically speaking. 9 MR. HOLLEY: I don't disagree at all 10 that it's improper to ask Mr. Alepin what does 11 the initial boot sequence of Windows mean, and 12 that question was asked and it was answered. 13 But then we go to this slide, Your 14 Honor, which now goes behind this conclusion of 15 law and asks Mr. Alepin to bolster the findings 16 of fact on the question of what Microsoft did 17 to limit OEM modification of the initial boot 18 sequence. 19 There are findings on this question. 20 We don't need Mr. Alepin to interpret for the 21 jury what Judge Jackson meant with those 22 findings of fact, and it's exactly the sort of 23 bolstering that Your Honor said is not going to 24 happen in this case. 25 He's also doing, frankly, precisely 6881 1 what you said he can't do, which is interpret, 2 and that doesn't matter whether it's 3 technologically. You just said he cannot 4 interpret the findings and conclusions, and 5 that's what he's doing. He's interpreting 6 them. 7 MR. LAMB: Well, I don't think he's 8 interpreting them, Your Honor, number one. 9 Number two, what Your Honor was 10 referring to principally was restricting us 11 from going to a document cited by whatever 12 example in a finding of fact and then showing 13 that document and reviewing that document and 14 going over it to bolster the finding of fact. 15 We have no intention of doing that. 16 MR. HOLLEY: I don't think, Your 17 Honor, that it makes sense to say that the only 18 violation of the Court's order is that the 19 document is up on the screen. Testimony about 20 the findings and the facts behind them is 21 equally objectionable. 22 The findings are the findings. The 23 jury has been instructed that they must accept 24 them, and the court has issued a ruling that 25 neither side is supposed to go behind those 6882 1 findings and bolster them. And then beyond 2 that, there's a ruling as to this particular 3 witness, that he's not supposed to interpret 4 them. 5 So, Your Honor, I really believe that 6 it's quite clear that what is going on here, 7 beyond defining terms in the conclusions, is 8 improper. 9 MR. LAMB: Well, under that theory, if 10 the conclusion of law says that Microsoft can't 11 uplift the downstroke of the schism, there's no 12 way he can explain what that means or what the 13 impact of that is. And we believe that's 14 ridiculous. 15 MR. HOLLEY: The first part is a straw 16 man, Your Honor. 17 I'm not objecting to having Mr. Alepin 18 explain technical terms to the jury either in 19 conclusions or findings. We're not objecting 20 to that. But I am objecting to his 21 interpretation of the findings, and I'm also 22 objecting to his bolstering of the findings by 23 repeating in his own words what Judge Jackson 24 has already found and what the jury has already 25 been instructed they must accept. 6883 1 MR. LAMB: Well, aside from conceding 2 counsel's expertise in straw man arguments, I 3 believe that that is sufficient for you to make 4 a ruling, Your Honor. 5 MR. HOLLEY: I have nothing further to 6 say on this point, Your Honor. 7 THE COURT: Anything else? 8 MR. HOLLEY: No, sir. 9 THE COURT: He'll be allowed to state 10 if there's some technical terms in there or 11 just give what happened. He can explain what 12 that is and what the -- technologically what 13 the effect would be within my ruling previously 14 given. 15 You can't go beyond that and say what 16 Judge Jackson meant or what the ruling meant. 17 But he can say, you know, like you have been 18 doing, that what technical terms in there mean 19 and practical application of what happens to 20 explain to the jury those technical terms. 21 MR. HOLLEY: Thank you, Your Honor. 22 MR. TULCHIN: Your Honor, may I just 23 ask, if that's so, if he can go beyond an 24 explanation of what the terms mean and say what 25 happened, presumably Microsoft can have a 6884 1 witness do the same thing and we will be into 2 an argument about what happened and what really 3 happened. 4 THE COURT: Well, I guess I mean what 5 happened, is that in the context that if 6 there's a technical term -- I don't know, you 7 can just use -- 8 MR. HOLLEY: I'm sorry, Your Honor. 9 Like the initial boot-up sequence. 10 THE COURT: Yeah, initial boot-up 11 sequence and explain what that does and how it 12 does it and what the effect is. 13 MR. LAMB: Okay. Understand, Your 14 Honor. 15 MR. HOLLEY: And, Your Honor, just so 16 the record is clear, I don't want to be up and 17 down interrupting this examination on this same 18 point. 19 So can I -- I'm not sure exactly what 20 Iowa practice is in this regard, but can we 21 have a continuing objection -- 22 THE COURT: Sure. 23 MR. HOLLEY: -- on this point? 24 THE COURT: Yes. 25 MR. HOLLEY: Because I don't want to 6885 1 interrupt Mr. Lamb. 2 THE COURT: Yeah, that's fine. So 3 what I mean is, is he can say what the effect 4 of the technical procedure is. 5 You understand what I'm saying? 6 MR. LAMB: Yes, sir. 7 THE COURT: Not the anticompetitive 8 effect, but the technical effect, okay, what it 9 does. 10 MR. HOLLEY: Thank you, Your Honor. 11 MS. CONLIN: Thank you, Your Honor. 12 THE COURT: So how do you want me to 13 rule out there in front of the jury? 14 MS. CONLIN: Well, overruled. 15 MR. LAMB: No. I don't think anything 16 needs to be said. I think that's the last 17 point. I think that these type of in 18 chambers -- I think what you do then is next 19 question, and then I just go on. 20 MR. TULCHIN: That's fine, Your Honor. 21 MR. HOLLEY: I don't disagree with 22 that, Your Honor. 23 MR. LAMB: Okay. 24 THE COURT: I just want to get it 25 clear before I go out. 6886 1 (The following record was made in 2 the presence of the jury at 8:55 a.m.) 3 THE COURT: Next question, please. 4 MR. LAMB: Thank you, Your Honor. 5 Q. Up on your slide you have Be. What 6 was Be? 7 A. Be was a company that had an operating 8 system called the BeOS for personal computers. 9 Q. And what type of applications did they 10 have? 11 A. They were an operating system vendor 12 that had multimedia capabilities. They were an 13 operating system that was very well-suited for 14 multimedia kinds of applications. 15 Q. Okay. I'm sorry, what type of -- 16 THE COURT: I didn't say anything. 17 Q. What types of applications ran on Be? 18 A. There were multimedia types of 19 applications, video recording, video editing 20 kinds of applications in particular. 21 Q. Okay. 22 And were those similar to or different 23 from the type of applications that ran on 24 Windows? 25 A. Not in particular there -- Be was 6887 1 intended to be a general purpose operating 2 system for personal computers, although it had 3 particular skills or abilities in the 4 multimedia arena. 5 Q. Okay. How about RealNetworks? What 6 was RealNetworks? 7 A. RealNetworks is a company that makes 8 media players and media server software. 9 Q. Okay. And during this time period, 10 was RealNetworks, was that icon not able to be 11 put up on the desktop then? 12 A. No. RealNetworks icon could be placed 13 on the desktop. 14 Q. Okay. 15 What is Tinkerbell? 16 A. Tinkerbell was a software product that 17 was created by RealNetworks to enable OEMs and 18 RealNetworks to get around the restrictions on 19 the initial boot-up sequence. 20 Q. Okay. 21 Did the restrictions on the initial 22 boot-up sequence affect Be? 23 A. Absolutely, yes. 24 Q. Can you explain to the jury how? 25 A. Well, Be as an operating system wanted 6888 1 -- to get onto the hard drives of users you 2 need to install an operating system on a hard 3 drive typically in order to be able to use the 4 operating system. 5 OEMs, the personal computer 6 manufacturers, were installing Windows 95 as 7 the dominant operating system on virtually all 8 of their computers at the time. 9 Be decided to approach OEMs with the 10 idea that they would also install the Be 11 operating system on the same hard drive as the 12 Windows operating system in what we call a dual 13 boot configuration. That is, when the user 14 turns on the computer, the user in a dual boot 15 environment could choose one or another 16 operating system installed on its hard drive. 17 That's a dual boot. 18 Be, the company, said we will install 19 -- we would like to install our operating 20 system on your PC OEM computers and give the 21 users the opportunity to boot into Windows or 22 to boot into the Be operating system. 23 Q. So Be wouldn't replace Windows; right? 24 A. No. 25 Q. Okay. It would run alongside it? 6889 1 A. It would be available to the user to 2 choose. So it would coexist, yes. 3 Q. Okay. Did the restriction regarding 4 the initial boot sequence affect RealNetworks? 5 A. Yes. 6 Q. Can you explain to the jury how it 7 did? 8 A. Well, the restrictions on boot-up and 9 initially loaded software prevented 10 RealNetworks from having the same kind of 11 out-of-the-box interaction with the user as the 12 user opened the computer for the first time and 13 was presented with opportunities to subscribe 14 to this or that, to choose media player and 15 media services, and media services in the case 16 of RealNetworks. 17 Q. And I think you testified that 18 Tinkerbell was designed to -- I don't know if 19 you said get around or work around this. 20 What did you mean by that, sir? 21 A. Tinkerbell was designed to start when 22 the system started, but not to appear until 23 after the initial boot-up sequence. 24 Q. Can you explain that a little bit 25 more? I don't understand. 6890 1 A. Sure. 2 Tinkerbell was, as I said, software. 3 The idea was that the Tinkerbell 4 software would be started during the start-up 5 process of the computer and it would not appear 6 on the user's screen or display before the 7 initial boot-up sequence of the Windows system 8 was completed. So that it would, in fact, 9 comply with the restrictions that Microsoft had 10 placed on OEMs concerning this initial boot-up 11 sequence. 12 Q. Okay. And did Microsoft within the 13 industry have a reaction to Tinkerbell? 14 A. Yes. 15 Q. Can you explain to the jury what that 16 was? 17 A. Microsoft indicated that this was also 18 part of the restrictions and would not be 19 consistent with the terms of the license 20 agreement, as I understand it. 21 Q. So they told OEMs not to do it? 22 A. Precisely. 23 Q. Okay. In relation to Be, how was this 24 dual boot configuration with Windows and Be 25 prevented by Microsoft? 6891 1 A. Well, they -- terms of the license 2 agreement were read to prohibit this kind of 3 arrangement where the user had a choice of 4 operating systems when his computer was turned 5 on. 6 Q. Is it your understanding that 7 Microsoft took that position with OEMs? 8 A. It took that position with OEMs, yes. 9 Q. Okay. 10 You also have a bullet point up here 11 that says by the time Microsoft stopped doing 12 this. Would that be around 1999? 13 A. Yes. 14 Q. No optional vendors. 15 What do you mean by that, sir? 16 A. Well, there were no longer any vendors 17 who were seeking to create or offer these kinds 18 of additional services through that mechanism. 19 There were no longer a browser company 20 like Netscape who was interested in pursuing 21 that. 22 Q. Okay. 23 MR. LAMB: Darin, could you put up 24 Finding of Fact 214? 25 Q. Mr. Alepin, Finding of Fact 214 reads 6892 1 the several OEMs that in the aggregate 2 represented over 90 percent of Intel-compatible 3 PC sales believed that the new restrictions 4 would make their PC systems more difficult and 5 more confusing to use, and thus less acceptable 6 to consumers. 7 They also anticipated that the 8 restrictions would increase product returns and 9 support costs and generally lower the value of 10 their machines. 11 Those OEMs that had already spent 12 millions of dollars developing and implementing 13 tutorial and registration programs and/or 14 automatically loading graphical interfaces in 15 the Windows boot sequence lamented that their 16 investment would, as a result of Microsoft's 17 policy, be largely wasted. 18 Gateway, Hewlett-Packard, and IBM 19 communicated their opposition forcefully and 20 urged Microsoft to lift the restrictions. 21 Emblematic of the reaction among large 22 OEMs was a letter that the manager of research 23 and development at Hewlett-Packard sent to 24 Microsoft in March 1997. 25 He wrote, Microsoft's mandated removal 6893 1 of all OEM boot sequence and auto start 2 programs for OEM licensed systems has resulted 3 in significant and costly problems for the HP 4 Pavilion line of retail PCs. 5 Sir, about six lines down, it refers 6 to tutorial programs. Do you see that? 7 A. I do. 8 Q. Can you explain to the jury what a 9 tutorial program is? 10 A. A tutorial program is a piece of 11 software that the purpose of which is to 12 introduce the user to a particular software 13 package or to -- for example, his computer, 14 when the user first purchases a computer, you 15 might, as an OEM, provide the user with a 16 tutorial program, a program that teaches them 17 and introduces them to the features and 18 functions available to them on the computer. 19 Q. Sir, the finding of fact also refers 20 to a registration program. Could you explain 21 to the jury what a registration program is? 22 A. A registration program is a program 23 that seeks to obtain from the user registration 24 information, including his name, his address, 25 and other contact information that's very 6894 1 valuable to the OEM, to the computer 2 manufacturer in establishing and maintaining a 3 relationship with that user going forward. 4 Q. And, finally, the finding of fact 5 refers to an automatically loading graphical 6 interface or automatically loading graphical 7 interfaces. 8 Can you explain to the jury what that 9 term means? 10 A. Yes. 11 Windows, like other operating systems, 12 provides a capability to auto start a program 13 once the operating system has finished booting 14 itself up and is ready to run. 15 You can designate that program to be 16 auto started, and, in fact, OEMs designated a 17 program to be auto started upon completion of 18 the boot-up process that would take the user 19 into what we refer to as a shell, an 20 environment that with a graphical user 21 interface that had certain characteristics or 22 attributes, such as ease of use or familiar 23 metaphorical seams, like a house, for example, 24 and would enable the user to think of his 25 computer, his new computer, something like a 6895 1 house, with different rooms and different 2 functions in each of those rooms. 3 So different approach to using the 4 computer. Particularly important for users who 5 were new to computers in their houses as 6 personal computer users. 7 MR. LAMB: Can we have the next slide, 8 Darin? 9 Q. There you go. 10 What is this, sir? 11 A. This is a screen shot, again a screen 12 shot, a picture of a computer screen, and this 13 is taken from a program that we just talked 14 about, a graphical user shell, developed by 15 Packard Bell, who at the time -- this is the 16 1994-95 time frame -- was the largest OEM, I 17 believe, for home user computers. 18 And this shell here that you're 19 looking at in the screen shot was Packard 20 Bell's user interface for its computer. 21 Users would auto start into this, what 22 Packard Bell called the Navigator shell. 23 Q. And what does this do? 24 A. Well -- excuse me. 25 You can see on the desk in the front 6896 1 left-hand portion of the screen, you can see a 2 telephone, a fax machine. You can see a 3 printer on your desktop in your room -- in this 4 room. And the idea here is to using familiar 5 icons in familiar rooms and allow the user to 6 connect to a printer, to use his fax machine, 7 to do other activities not by navigating a menu 8 structure like you would on a desktop, but 9 rather to navigate rooms with objects that are 10 familiar to you as a home user. 11 Q. Okay. So you click on the fax machine 12 to send a fax? 13 A. That's correct. And -- that's 14 correct. 15 Q. Okay. And was this allowed? 16 A. This kind of program -- 17 Q. Right. 18 A. -- auto started was prohibited. 19 Q. Okay. Now, let's go back to the Be or 20 the Be operating system because we were talking 21 about the time frame '95 to '99. 22 What was the time frame that the Be 23 operating system and the dual boot sequence was 24 not allowed by Microsoft? 25 A. Approximately the same time period, 6897 1 '95 through '99. 2 MR. LAMB: Could we get the next 3 slide, please? 4 Q. You have a bullet here that says, 5 Microsoft's mandated removal of all OEM boot 6 sequence and auto start programs made PC 7 systems more difficult and more confusing. 8 Can you explain that to the jury? 9 MR. HOLLEY: Objection, Your Honor. 10 THE COURT: Overruled. You may 11 answer. 12 A. Well, the auto start and boot-up 13 sequence restrictions prevented OEMs from 14 developing and delivering -- in many cases they 15 had already developed, but prevented them from 16 delivering to their customers these kinds of 17 programs and making them available to the user 18 as the first part of the out-of-box experience. 19 This was what did you see, what were 20 you introduced to when you first started the 21 computer. 22 And it was this kind of -- providing 23 this kind of software as part of the 24 out-of-the-box experience was viewed by OEMs as 25 being very important to helping the user get 6898 1 the computer up and working and could become 2 the environment in which they would continue to 3 use their computer; but at least for the 4 initial interactions with the computer, it was 5 going to get you going. 6 Q. Okay. 7 A. And if you didn't have that, it was 8 going to result in more user frustration and 9 more user calls to service, and calls to 10 service are very expensive and they result in 11 frustration and dissatisfaction with the 12 computer that you've purchased, and you don't 13 want that. 14 MR. LAMB: Could I get the next slide, 15 please? 16 Q. Conclusion of Law 4.3 is Microsoft 17 maintained the monopoly power in the operating 18 systems market by the following, quote, 19 anticompetitive conduct, end quote: i.e., 20 conduct which caused harm to the competitive 21 process and thereby harm to the consumers. 22 Three, prohibiting OEMs from adding to 23 the Windows desktop icons or folders different 24 in size or shape from those supplied by 25 Microsoft. 6899 1 What does that mean, icons different 2 in size or shape? 3 A. The icons on the desktop could -- all 4 had to be the same dimension on the screen. An 5 OEM could not call attention to one icon by 6 making it larger in shape or by making it 7 perform certain tricks, like flickering or 8 being in bold fonts or other kinds of 9 attributes. So the icons all had to be of the 10 same shape. No icon could stand out on the 11 desktop. 12 Q. Well, from a technological 13 perspective, could OEMs physically change the 14 icons? 15 A. The -- as a technology matter, it was 16 possible to make the icons appear differently, 17 yes. 18 Q. And flash and do all kinds of things? 19 A. Yes. 20 Q. What time period did this apply, sir? 21 A. This was in the same time frame, the 22 1995 through '99. 23 Q. And based on your experience and 24 understanding in the industry, were OEMs 25 desirous of having different types of icons? 6900 1 A. Well, yes. Yes. OEMs sought to 2 communicate to the users important information. 3 It's a sad fact of life in our 4 business that even though you spend a lot time 5 and money developing a users' guide or 6 read-me-first instruction. 7 That the first thing that you do is 8 ignore the read me first and you turn on the 9 computer, and quite naturally, you want to 10 begin interacting with this new and exciting 11 computer. 12 So you as an OEM, you keep wanting to 13 get the user to engage with some of the 14 software and information that you want him or 15 her to read when they first get started on the 16 computer. 17 Creating an icon that calls attention 18 to it once the user gets the computer up and 19 running is one of those ways that says read me 20 first or use this or click this or do this. 21 Q. Okay. 22 MR. LAMB: Could we get the next 23 slide, Darin? 24 Q. The Conclusion of Law 4.4 reads, 25 Microsoft maintained the monopoly power in the 6901 1 operating systems market by the following, 2 quote, anticompetitive conduct, end quote: 3 i.e., conduct which caused harm to the 4 competitive process and thereby harm to the 5 consumers. 6 Four, prohibiting OEMs from using the 7 active desktop feature of Windows to promote 8 third-party brands. 9 MR. LAMB: Could we go to the next 10 slide, Darin? 11 Q. Okay. Active desktop, I believe you 12 described this briefly before, but could you 13 tell the jury again what active desktop is or 14 was? 15 A. Active desktop was software Microsoft 16 developed that was -- tied together the 17 Internet Explorer and the Windows desktop 18 operating system and allowed the user to put 19 pieces of web pages on their desktop and they 20 would be active. They would be -- in a limited 21 way, they would be updated from content 22 available off the Internet. 23 Q. Okay. 24 MR. LAMB: Could we get the next 25 slide, Darin? 6902 1 Q. You note that active desktop was 2 bloated, unreliable, and caused symptoms to 3 crash. Could you explain that to the jury 4 please? 5 MR. HOLLEY: Objection, Your Honor. 6 THE COURT: Overruled. 7 You may testify as to what these are 8 in relation to active desktop. 9 A. Well, let me start with bloated. 10 Q. Okay. 11 A. Bloated is an attribute that we use to 12 describe software that is larger than it needs 13 to be and larger than can comfortably fit into 14 the system on which it's intended to run. 15 So a piece of bloated software is 16 software that's got lots of additional size and 17 componentry that is unnecessary to achieving 18 the purpose or function of the system. 19 Unreliable is not much different from 20 unreliable elsewhere. Unreliable software is 21 software that fails, restarts, crashes. That's 22 what I mean by unreliable. 23 And ultimately this combination of 24 bloated, which put a heavy demand on the 25 resources of the computer, and the 6903 1 unreliability combined to cause systems with 2 the active desktop software enabled to crash 3 more frequently than would occur if they 4 weren't running the active desktop. 5 Q. Okay. And you note there the, quote, 6 white screen of death, unquote. 7 Can you explain to the jury what that 8 is? Some of them may have seen that. 9 A. The white screen of death is similar 10 -- there was a blue screen of death that 11 sometimes abbreviated as BSOD. It is what 12 happens when the Windows operating system 13 crashes. What happens is you see a blue screen 14 and the computer becomes unresponsive. 15 With the active desktop, what would 16 happen when the active desktop software -- 17 because it was linked into the shell of the 18 operating system, when it failed, it would show 19 a white screen and it would apologize, I 20 believe, but say we have to restart your 21 desktop because we've encountered an error. 22 I'm paraphrasing, but that's the intent of 23 this. 24 So the user would be all of a sudden 25 confronted with this white screen with this 6904 1 error message and quite possibly could lose the 2 work that he or she was in the middle of as a 3 result of this failure. 4 Q. Mr. Alepin, you then go on in one of 5 your bullet points to say, by technologically 6 bundling and tying IE with active desktop with 7 Windows, Microsoft disrupted Netscape's plans 8 for comparable software. 9 When you use the term bundling and 10 tying technologically, what are you saying, 11 sir? 12 A. Technologically, the software ships in 13 the same box, on the same disk, is installed on 14 the same computer. That's bundling. 15 So in the case here, the Internet 16 Explorer software was installed on the same 17 computer with the Windows 95 operating system 18 bundled together. 19 You could not buy Windows 95 without 20 the Internet Explorer in a bundle. 21 The tying, technologically speaking 22 here, is when you create dependencies in one 23 piece of software on another separable piece of 24 software. 25 So, for example, the browser becomes 6905 1 tied to the operating system the moment the 2 operating system starts making requests of the 3 browser to do stuff for it. Then there is a 4 dependency from the operating system or from 5 the kernel to components at higher levels in 6 the software package. So that is technological 7 tying. 8 MR. LAMB: Could we get the next 9 slide, please? 10 Q. Then you note kept, quote, live feeds, 11 end quote, from PC users for five years. What 12 does that mean, sir? 13 A. Well, this is more in the way of an 14 observation. 15 We had multiple different new kinds of 16 technologies that were emerging as part of the 17 Internet revolution. Some really interesting 18 and great ideas coming out in the form of 19 technology from companies like Point Cast and 20 Marimba, which were talking about broadcasting 21 software -- broadcasting live feeds and -- much 22 like a television set. So you would dial to 23 different channels to get content delivered to 24 your desktop. 25 Netscape had announced in the 1996 6906 1 time frame its vision for a browser product 2 separate from all operating systems that would 3 provide a mechanism to have live content on 4 your desktop and that you could simply navigate 5 to these different channels of live content. 6 Microsoft's adoption of active desktop 7 and tying it into the operating system made the 8 Netscape vision, along with other conduct, made 9 it not practical or possible to pursue that 10 kind of vision for live content or in fact for 11 other visions of live content for quite some 12 time. 13 In fact, it's only been recently, in 14 the 2001 and thereafter time frame, where we've 15 started to look at a different approach to the 16 distribution of live content in the form of 17 really simple syndication and other 18 Internet-based standards, technologies that are 19 going to deliver live content to users. 20 Q. Your next point is Microsoft knew 21 active desktop was a nonstarter before it 22 shipped active desktop and recommended to users 23 that they disable it by default. 24 Was it, in fact, disabled by default? 25 A. As an -- I believe in the 2001 time 6907 1 frame the software was disabled by default, and 2 ultimately it was -- it's removed from the 3 Windows Vista software. 4 Q. Okay. During what time periods were 5 OEMs prohibited from using active desktop 6 feature of Windows to promote third-party 7 brands? 8 A. During the '97 through '99 time 9 period. 10 Q. Okay. 11 MR. LAMB: Could we get the next 12 slide, please? 13 Q. Conclusion of Law 4.5 reads, Microsoft 14 maintained the monopoly power in the operating 15 systems market by the following, quote, 16 anticompetitive conduct, end quote: i.e., 17 conduct which caused harm to the competitive 18 process and thereby harm to the consumers. 19 Five, excluding IE from the add/remove 20 programs utility in Windows. 21 Sir, what is the add/remove program? 22 A. The add/remove program -- here is a 23 screen shot picture of a screen from a Windows 24 computer showing the add/remove program 25 program. 6908 1 And what you can see here is in the 2 middle of the screen the names of the programs 3 that are currently installed on the computer. 4 The first one that's highlighted in 5 blue and appears in white is called Adobe 6 PhotoShop Element. That's an application 7 software program that's installed on this 8 computer. 9 The add/remove program is the means 10 that Microsoft has identified that OEMs should 11 use to -- I'm sorry, OEMs -- independent 12 software vendors should use to add or remove 13 programs from their -- from the system. 14 Q. Okay. Is the add/remove programs 15 utility designed to completely deinstall a 16 program or application and completely remove it 17 from the hard drive? 18 A. That's correct. 19 And I apologize. I think that I may 20 have contributed some confusion in my last 21 answer. 22 The add/remove program program is a 23 mechanism that Windows operating system 24 provides that allows users to install or remove 25 or modify the installation of an application 6909 1 software package on the system, and using the 2 add/remove program users can -- the add/remove 3 program feature will remove completely a piece 4 of software from the user's computer. 5 Q. Okay. The top left one says change or 6 remove programs. Do you see that, sir? 7 A. I do. 8 Q. What is that supposed to do? 9 A. That's what we're -- what's actually 10 activated here. That's what is the point at 11 which a user can remove a program. So he is -- 12 you press that button, you get to a list of 13 programs, and then you select the program you 14 want to remove. 15 Q. Okay. Such as Adobe PhotoShop 16 Element? 17 A. That's correct. 18 Q. And then if you do that, that's 19 supposed to completely remove it from the hard 20 drive; right? 21 A. That's correct. If you choose the 22 remove button, that's what will happen. 23 Q. Okay. And then below that there's 24 something that says add new programs. What is 25 that supposed to do, sir? 6910 1 A. Add new programs provides you with a 2 means to begin the installation of a new 3 software application. 4 Q. Okay. So you could load it through 5 that program utility; right? 6 A. You can indeed, yes. 7 Q. And then if you decide at some point 8 in time you didn't like it, you could remove it 9 from the change or remove programs; right? 10 A. Those are the preferred -- those are 11 the best ways to do it. That's what you're 12 supposed to do. 13 Q. That's what it's designed to do; 14 right? 15 A. That's exactly what it's designed to 16 do. 17 Q. Then there's another one below add new 18 programs. It says, add/remove Windows 19 components. What is that, sir? 20 A. There are additional components, 21 optional components of the Windows product that 22 you can add or remove from your system, and you 23 use that -- you use that button to get there 24 and to choose what you want to add or remove. 25 Q. Does that completely remove them from 6911 1 the hard drive? 2 A. It completely removes them from your 3 system if -- in earlier times it would, yes. 4 Q. How about now? 5 A. Now, for several of the components, it 6 does not remove them from the operating -- from 7 the hard drive at all. 8 Q. Such as? 9 A. Such as Internet Explorer and media 10 player. 11 Q. Okay. And then down below there's 12 something that says set program access and 13 defaults. What is that? 14 A. Set program access and defaults is -- 15 sometimes referred to as SPAD -- is a piece of 16 software provided in the Microsoft operating 17 system in, I believe, 2002 that allows the user 18 to choose the -- to set his preferences or her 19 preferences for certain types of middleware 20 software, including the browser, the media 21 player, the Instant Messenger, the -- an E-mail 22 program. So those types of programs. 23 The set program access defaults 24 function in the operating system allows you to 25 set the default and to determine whether or not 6912 1 a user can -- whether or not access to the 2 Microsoft software is to be allowed or not. 3 So you can choose, let's say, Netscape 4 Navigator as your default browser, and then you 5 can say do not allow access to Microsoft's 6 Internet Explorer. 7 That's what set program access default 8 function in the Windows operating system 9 provides you. 10 Q. Okay. What is the technological 11 impact of excluding Internet Explorer from the 12 add/remove programs utility? 13 A. It should -- as a technical matter it 14 should prevent the program from being accessed. 15 Q. Okay. So when it's not on add/remove 16 programs, you can't get rid of it? 17 A. You can't get rid of it. 18 Q. Okay. And where is it now, in the 19 add/remove Windows components? 20 A. No, I don't believe so. 21 Q. Where is it? 22 A. It's not there. It's available -- 23 it's accessible -- I'm sorry. 24 It is accessible through the 25 add/remove Windows components, but that simply 6913 1 performs the same function as the set program 2 access defaults. 3 In other words, it doesn't remove the 4 software from the computer disk. It doesn't 5 remove it as the add/remove programs would do. 6 It simply describes itself as saying remove 7 access to the Internet Explorer. 8 Q. Okay. So that's true today; right? 9 Internet Explorer is not an add/remove program 10 utility? 11 A. It's not part of that, no. 12 Q. And you can't remove it from the hard 13 drive; right? 14 A. Cannot remove it from the hard drive. 15 Q. So the bottom line is, no matter what 16 you do, you can't get rid of Internet Explorer? 17 A. You cannot get rid of it. 18 Q. Now, you mentioned Windows media 19 player. 20 Can that be deinstalled? 21 A. No, it cannot be deinstalled pursuant 22 to the mechanisms that Microsoft provides as a 23 normal user. 24 Q. Okay. Yeah, I guess I should back up. 25 I mean, as far as add/remove programs, 6914 1 is it -- can you take Windows media player off 2 your hard drive through the add/remove 3 programs? 4 A. No, you can't. You can -- if you 5 would install a second version of it, you can 6 back up to an earlier version, but you can't 7 take it off. 8 Q. Okay. Can you get rid of it at least 9 on your system on this add/remove Windows 10 components? 11 A. You can't get it off your system, no. 12 Through that mechanism. 13 Q. And has Windows taken the position 14 within the industry that Windows media player 15 cannot physically be deinstalled? 16 MR. HOLLEY: Objection, Your Honor. 17 THE COURT: Overruled. You may 18 answer. 19 A. Microsoft has taken the position that 20 as a technical matter you can't remove the 21 Windows media player. 22 Q. Now, aside from the program utilities 23 that Windows provides, such as the add/remove 24 programs, is there technologically a way to 25 remove Windows media player from the hard 6915 1 drive? 2 A. Yes, there are. 3 Q. Okay. Are you familiar with those 4 ways? 5 A. I am. 6 Q. How are you familiar with those ways? 7 A. I've done it. Or I've done them. 8 Q. You have personally done it? 9 A. Personally, yes. 10 Q. And how did you do it, sir? 11 A. I did it in three different ways, the 12 first of which was through a reconstruction of 13 the original add/remove program instructions 14 that Microsoft provided when it first 15 introduced the media player. 16 That is, with Microsoft's original 17 media player, you could add or remove it from 18 the system using the add/remove program 19 program. And by bringing forward those 20 instructions, I was able to remove the media 21 player from the system. 22 I should point out that in some of the 23 software that's available here, the -- I could 24 by simply changing a line that has a semicolon 25 in front of it, I could cause the Windows media 6916 1 player to show up in the list of programs to be 2 added or removed. 3 Microsoft's developers commented that 4 line of -- that statement. What they did was 5 they -- when we say commented, in software 6 development you can -- you write statements, 7 and some statements you write as if you're 8 speaking to a person, so it's for a programmer 9 to read, and some statements are for the 10 computer to read. 11 We call the statements for programmers 12 to read comments, and they have a special 13 notation at the beginning of the line in some 14 environments that says ignore this computer, 15 but if you want to read it, as a programmer you 16 can read it. 17 Other times what we do is if we want 18 to disable that line and make the computer 19 ignore that line of -- that statement or that 20 instruction, we put this notation to make it a 21 comment. 22 Microsoft in the course of moving 23 between these media players and making Windows 24 media player tied to -- as a technical matter, 25 tied to the Windows operating system, Microsoft 6917 1 commented a line that said show the Windows 2 media player on the add or remove program menu. 3 That was one way in which -- I realize it's a 4 long time since your question. 5 This was one way I removed the media 6 player. I restored the media player or removed 7 the media player from the system using a 8 reconstruction of the original add/remove 9 statements that Microsoft had included with the 10 media player. 11 Q. What was the second one, sir? 12 A. The second one was that I took the -- 13 Microsoft provides a tool to third parties 14 that's called Windows XP embedded. 15 It's a software package that allows a 16 company to, kind of like going through a 17 department store or a large grocery store and 18 to pick the individual components of the system 19 that they want to include when they're building 20 a special purpose copy of Windows XP; for 21 example, an ATM kiosk or an airline check-in -- 22 self check-in counter. So those could be 23 Windows XP embedded operating systems. 24 And certain things are not necessary 25 to have in the operating system. In fact, they 6918 1 make it bigger and slower and have more stuff 2 in it. 3 The Windows media player is identified 4 as an optional component to the Windows XP 5 operating system, and in almost -- in looking 6 at the results of the Windows XP embedded 7 system and Windows XP software packet operating 8 system that you would purchase at retail, 9 they're the same software. It's the same 10 stuff. 11 So I took the process using the 12 Windows XP embedded software and created a copy 13 of Windows XP that didn't include the Windows 14 media player, and it's possible to do that, and 15 as I think I just said, Windows media player 16 was identified as an optional component, not 17 necessary for building Windows XP systems. 18 And the third way was to look at the 19 software files that Windows media player 20 installed and the changes that it made to the 21 operating system as it installed itself. 22 It's important to remember that going 23 back to the beginning, media player was not 24 part of the operating system at all and was 25 installed by users. 6919 1 And what I did was I looked at the 2 changes that the media player made to the 3 system during its installation process and 4 essentially undid those changes, removed those 5 files without using the automated mechanism or 6 restoring the automated mechanism and without 7 using Windows XP embedded as a mechanism to do 8 that. 9 Q. Mr. Alepin, bottom line, then, is that 10 Windows here, at least in Iowa, you can't get 11 it without Windows media player on it; right? 12 A. In Iowa, you can't get it without 13 media player. 14 Q. Okay. How about in Europe? Can you 15 get it in Europe without Windows media player? 16 A. You can get it without media player in 17 Europe. 18 MR. LAMB: Your Honor, would this be a 19 good time for a break? 20 THE COURT: No. Keep going. 21 MR. LAMB: No? 22 THE COURT: Keep going. 23 Q. Is there a more current example that 24 you have or you've tried to either install 25 software and you've had some difficulties in 6920 1 this same regard? 2 A. Yes. 3 Q. Can you explain to the jury what that 4 was? 5 A. Well, over the weekend, I was -- 6 Mr. Hagstrom behind you, Mr. Lamb, has a large 7 room that we've been using to congregate, maybe 8 watch the ball games over the weekend. 9 And Mr. Hagstrom purchased a router, a 10 piece of networking equipment that would enable 11 us to check our E-mail continuously over the 12 weekend. And they -- he and a couple of his 13 colleagues were trying to get the router to 14 work. 15 And I can only watch people with 16 boxing gloves try and install software for so 17 long before I get up and have to do something 18 about it. So I took the Net -- this is a Net 19 Gear router product. And I took the CD, and 20 using my computer I was going to install and 21 configure the -- this piece of networking 22 equipment for them. 23 And -- excuse me -- when you insert 24 the CD, it auto starts or auto plays the 25 content on the CD. 6921 1 And the first thing that it did, said 2 would you like to install or read the 3 documentation. Of course I said I don't want 4 to read the documentation, I want to install 5 the software. So true to practices. 6 First thing I did was press the 7 install the software button. And Microsoft's 8 Internet Explorer showed up on the screen with 9 the Net Gear software. 10 Q. Is that a problem? 11 A. Well, it's a problem because on my 12 computer, my preference is set through the set 13 program access defaults to Mozilla, a browser 14 that's made by a company -- well, an 15 organization called Mozilla, a Firefox browser. 16 And I checked this again. My set 17 program access default said don't let the 18 Internet Explorer start. Disable access to 19 Microsoft Internet Explorer. 20 So I was quite surprised that 21 Microsoft's Internet Explorer was, in fact, 22 launched by the Netscape installation CD 23 contrary to what I had established as the rules 24 for operating on my computer. 25 Q. What did you do next? 6922 1 A. Well, I tried to get the Internet -- I 2 tried to get it to run using my Mozilla 3 software, and it kept insisting on running 4 using the Internet Explorer. 5 Q. What's the technological impact of 6 that? 7 A. Well, the technological impact is that 8 I'm not able to prevent the Internet Explorer 9 from launching, from reaching out and getting 10 onto the network and being active in spite of 11 whatever policies I may have concerning access 12 and how I want to control access and use on the 13 computer networks. 14 The second thing is that because it's 15 always there and it can always be activated, 16 regardless of my choices and my preferences and 17 my policies for my computer, a third-party 18 company, a hardware vendor, in this case Net 19 Gear, or a software company, knows that it's 20 there and they will do what they just did, and 21 that is reach out and grab the Internet 22 Explorer on the disk installed in my computer. 23 Q. Okay. So you set your preferences 24 through SPAD; right? 25 A. Yes, I did. 6923 1 Q. And SPAD is what Microsoft designs to 2 allow you to set your preferences or your 3 choices; right? 4 A. Yes. 5 Q. And then ultimately Microsoft overrode 6 your choices? 7 A. That's correct. 8 MR. LAMB: Can we go to the next 9 slide, please? 10 Q. Conclusion of Law 4.6 is Microsoft 11 maintained the monopoly power in the operating 12 systems market by the following, quote, 13 anticompetitive conduct, end quote: i.e., 14 conduct which caused harm to the competitive 15 process and thereby harm to the consumers. 16 Six, commingling code related to 17 browsing and other code in the same files in 18 Windows. 19 Sir, could you explain to the jury 20 what commingling code means? 21 And with the Court's permission, if 22 you could maybe go to the board and graphically 23 display that, that might be helpful. 24 MR. HOLLEY: Objection, Your Honor, to 25 the extent that this relates to the design of 6924 1 Windows. 2 THE COURT: He may testify as to what 3 the questioner asked, what commingling code is. 4 Overruled in that regard. 5 Go ahead. Turn your mike on. 6 A. Commingling is, as the term might 7 suggest, blending or the presence of multiple 8 different pieces in the same container. 9 A file is a container, and in our 10 world we can create files that contain multiple 11 different subroutines, for example, multiple 12 different functions. 13 And when we commingle, as a technical 14 matter what we do is we can put different 15 functions in the same file in the same 16 container. 17 These functions here may be related to 18 one component of the system. Let's say it's 19 related to the graphical user interface. So I 20 may have some functions in here that are 21 related to the graphical user interface. 22 I may have some other functions that 23 are related to the file system in the same file 24 or in the same container. 25 As a practical matter, that would be 6925 1 an unfortunate thing to do when you're 2 developing software, to commingle pieces of 3 different components of the system in the same 4 file, but that's what I mean by commingling. 5 Q. Why do you say it would be an 6 unfortunate thing, sir? 7 A. Well, it would be unfortunate for a 8 couple of reasons, one of which is that 9 typically the groups of people who are working 10 on the file system, for example, are different 11 from the people who are working on the 12 graphical user interface. 13 They're working on different time 14 schedules, different goals and release dates, 15 perhaps. They have different levels of the 16 system against which they're testing. 17 So when you combine them together, 18 you're increasing the chances that things are 19 not going to be -- are not going to work 20 properly together. That's the biggest risk. 21 So the fact is that you have different 22 things blended together in a file that were 23 tested under different environments and may not 24 work together, and so that's the unfortunate 25 consequence of this kind of blending or 6926 1 commingling. 2 Q. Okay. And during the course of your 3 training and experience, sir, have you 4 physically reviewed the code for the Microsoft 5 operating system? 6 A. I have reviewed at various times the 7 code for the Microsoft operating systems, yes. 8 Q. Okay. Why don't you go ahead and take 9 your seat again, sir. 10 Is it technologically safe? 11 A. It's safe now. 12 Q. The next slide that you have refers to 13 the kernel, sir, and I think you've testified a 14 number of times about the kernel and 15 middleware. 16 You have there a bullet point, 17 cardinal rule, never put applications code in 18 the kernel. 19 Can you explain to the jury what you 20 mean by that? 21 A. Well, the cardinal rule in here that 22 -- in terms of software development what you 23 want to do, I think, and I described this last 24 week, is you want to make sure that the kernel 25 is the most resilient, most well-protected, 6927 1 preserved piece of software in the system so 2 that it can provide services continuously to 3 the other components in the system that need 4 it. 5 It has to be able to operate and to 6 function under the most difficult of conditions 7 and the -- so what you do when you work to 8 develop the kernel is to put only those things 9 that are essential to fulfill the basic 10 functions of the system in the kernel and build 11 on top of it. 12 So build outward from the kernel in a 13 series of concentric rings. 14 Indeed, the design of the hardware for 15 Intel's architecture chips talks in terms of 16 rings and rings of protection and insulation. 17 And at the center, the inner ring, 18 that's the most protected and important piece 19 of software. So that's the kernel. 20 Q. Mr. Alepin, in your professional 21 opinion, does Microsoft violate that cardinal 22 rule and put applications code in the kernel? 23 MR. HOLLEY: Objection, Your Honor. 24 THE COURT: Overruled. You may 25 answer. 6928 1 A. The -- yes. 2 Q. And you've -- you've testified over 3 the past couple days about creating 4 dependencies on the applications code. 5 Can you explain to the jury what you 6 mean by that? 7 A. Well, what happens is here, and what I 8 intend by this is that the operating system 9 unnecessarily makes a requirement or a 10 condition that the browser be present, the 11 Microsoft browser be present in order to 12 fulfill certain of its missions or functions. 13 Q. Okay. During what time period has 14 Microsoft been doing this? 15 A. From the nineteen -- in the case of 16 the browser, from the 1997 time frame going 17 forward. 18 Q. Going forward to today? 19 A. Yes. 20 Q. In your professional opinion, is there 21 any technological justification for this 22 commingling? 23 A. No. 24 MR. LAMB: Can we get the next slide, 25 please? 6929 1 Q. Here, you're referring to a modular 2 operating system, ideal. What does that mean, 3 sir? 4 A. Well, what we have found, I think, is 5 in the -- over the course of 40 odd years of 6 working with operating system software is that 7 the best software is modular software; that is, 8 software that's comprised of multiple building 9 blocks. 10 The notion that individual pieces of 11 software should do one thing and do it well, 12 and then you assemble them together in blocks 13 or modules, each of these modules adhering to 14 that notion of modularity, and you try and 15 reduce the dependencies of each of these 16 modules on assumptions or other conditions in 17 the rest of the system. 18 So modular, self-sufficient, 19 self-contained, those kinds of attributes are 20 what we look at as the modular ideal of the -- 21 of software development and in particular of 22 operating systems, which are very large pieces 23 of software sometimes. 24 Q. Sir, is this the opposite of 25 commingling? 6930 1 A. It is the opposite of commingling on 2 at least one dimension, certainly. 3 Q. With the Court's indulgence, could you 4 maybe diagram for the jury what you mean by a 5 modular operating system? 6 A. Sure. 7 Modular operating system is one in 8 which the fundamental building blocks of the 9 system are separate and independent. 10 So you've got memory management. You 11 have interrupt management. You have hardware 12 device management. And the hardware 13 abstraction layer or HAL. 14 If you think of 2001, the Space 15 Odyssey, this isn't the same HAL. 16 And as you go up, you have file 17 systems and graphical user interfaces. And 18 even those components become modularized and 19 componentized so that they're themselves 20 assembled from different modules of the system. 21 They have interfaces between the 22 various components and they have -- and the 23 ideal here is to have the least amount of 24 interdependencies upon the individual details 25 of the components so that you can develop these 6931 1 components separately and that you can replace 2 these components with other components on 3 different schedules. 4 Q. Okay. You can take your seat again, 5 sir, please. 6 THE COURT: At this time we'll take a 7 recess for ten minutes. 8 Remember the admonition previously 9 given. You may leave your notebooks here. 10 All rise. 11 (A recess was taken from 9:59 a.m. 12 to 10:14 a.m.) 13 THE COURT: Everyone else may be 14 seated. Thank you. 15 Sir, you're still under oath. 16 Q. Mr. Alepin, we're going to turn to 17 Conclusion of Law 4.7, and Conclusion of Law 18 4.7 reads, Microsoft maintained the monopoly 19 power in the operating systems market by the 20 following, quote, anticompetitive conduct, end 21 quote: i.e., conduct which caused harm to the 22 competitive process and thereby harm to the 23 consumers. 24 Seven, agreeing to provide easy access 25 to IAPs services from the Windows desktop in 6932 1 return for the IAPs agreement to promote IE 2 exclusively and to keep shipments of Internet 3 access software using Navigator under a 4 specific percentage. 5 First, sir, what is an IAP? 6 A. An IAP is an Internet access provider. 7 Q. And how do they fit in technologically 8 in relation to the computer industry? What do 9 they do? What do they provide? 10 A. Could I use a diagram? 11 Q. With the Court's indulgence, 12 certainly. 13 A. An Internet access provider fits into 14 the -- into the Internet or to the connected 15 world by providing users with an on ramp to the 16 Internet. 17 So starting up here from -- with a 18 user, a PC user, and drawing the pieces here, 19 and I'll fill in the descriptions for them as 20 we've -- at the end here. 21 This is how we draw the Internet. 22 It's a big cloud, and over here we're going to 23 have websites, each of which has content on it. 24 And what Internet access providers do 25 is they allow a user to subscribe to the 6933 1 service which is going to provide the user with 2 the ability to get on the Internet. 3 So they're going to provide the dial 4 tone, if you will, or the telephone connection 5 that gets you onto the Internet. 6 They'll answer the phone and they'll 7 connect you to the Internet and allow you using 8 your browser to navigate to -- let's say to the 9 ebay website. 10 Internet access providers enroll you. 11 You call up -- you're provided with an initial 12 telephone number. You call up. You say I'd 13 like to subscribe, and then they give you the 14 telephone number, a user ID and a password, and 15 you give them a credit card or something else 16 that says that you're going to pay a monthly 17 fee for the Internet access services. 18 That's the function of an Internet 19 access provider in the Worldwide Web context. 20 Q. How does a user actually hook up with 21 an Internet access provider? 22 A. Well, a user can -- in the context of 23 PCs or Windows operating systems or generally? 24 Q. More generally. 25 A. More generally, the user can, as I 6934 1 indicated, get some software in the form of a 2 disk from a magazine or he can in the context 3 of Windows 95 and versions of Windows after 4 that use something called the Internet 5 Connection Wizard. 6 So there are two really -- two popular 7 ways of getting on. 8 Before the connection user you would 9 get a piece of software in a magazine or you 10 would download it if you had a means to 11 download it, to get the desktop software that 12 contained the information to dial up to the 13 Internet access provider to exchange the 14 information about registration and payment. 15 Q. Is the Internet Connection Wizard the 16 means that was provided the easy access to 17 IAPs? 18 A. That's correct. 19 Q. And we've heard IAPs. 20 We've also heard ISP. Is there a 21 difference, Internet service providers? 22 A. Not really, no. 23 And the -- here, there is a piece of 24 software that is called the Internet Connection 25 Wizard that contains the easy access software, 6935 1 the easy access to the Internet access 2 providers. 3 Q. And how does the Internet Connection 4 Wizard work? 5 A. Well, the Internet Connection Wizard 6 contains a list of IAPs. So on the Windows CD 7 or the Windows operating system installed on 8 your computer there is a list of Internet 9 access providers, and if you use the Internet 10 Connection Wizard, and say I would like to find 11 an Internet connection -- an Internet access 12 provider, the Internet Connection Wizard will 13 suggest to you an Internet access provider 14 and -- 15 Q. Can you give us an example? 16 A. Well, Internet access providers here 17 might be EarthLink or Speak Easy or Net Zero or 18 other companies like that. AT&T was an 19 Internet access provider. Netcom was an 20 Internet access provider. These companies have 21 changed over time. But those are examples of 22 Internet access providers. 23 And they could appear in the list here 24 that was part of the Internet Connection 25 Wizard, and the user would be directed towards 6936 1 one of these Internet access providers 2 whereupon the exchange of information would 3 take place. 4 Q. Okay. And then the Internet access 5 provider would suggest a web browser? 6 A. That's correct, yes. It would suggest 7 a web browser. 8 Q. And during what time period does this 9 pertain to, this Microsoft agreeing to provide 10 easy access to IAP services from the Windows 11 desktop in return for IAPs agreement to promote 12 IE exclusively? 13 A. From the 1995 through 1990 -- I 14 believe, 1998 time frame. 15 Q. Okay. And then basically there would 16 only be one option then for a browser? 17 A. Well, under the provisions that are 18 being discussed here, the -- 19 Q. Okay. 20 A. -- IAPs would agree to recommend -- to 21 use Internet Explorer, yes. 22 Q. Okay. Can you take your seat again 23 please, sir? 24 MR. LAMB: Can we go to the next slide 25 please, Darin? 6937 1 Q. On the next slide it says IE ubiquity. 2 What do you mean by that, sir? 3 A. I mean, Internet Explorer is 4 everywhere. 5 Q. What do you mean it's everywhere? 6 A. It's on every personal computer 7 virtually that is sold through OEMs. 8 Q. Can you remove it? 9 A. You cannot remove it. 10 Q. What if you want an alternative? So 11 let's use Mozilla that you talked about. 12 A. You can obtain it and install it. 13 Q. Okay. And then will it run? 14 A. It will run. 15 Q. But you still can't remove IE? 16 A. Still can't remove IE. You have two 17 browsers then. 18 Q. How about currently, are there any 19 issues in relation to Mozilla and IE currently 20 such as view this page in IE page in Mozilla? 21 MR. HOLLEY: Objection, Your Honor. 22 Leading. 23 THE COURT: Sustained. 24 MR. LAMB: I'll rephrase it. 25 Q. Are there any issues in relation to 6938 1 Mozilla and Internet Explorer as you understand 2 them today? 3 A. There are a couple of important 4 compatibility issues associated with Mozilla's 5 ability to run on Windows operating systems and 6 to use and display content from different 7 websites. 8 Q. Can you explain to the jury what those 9 are? 10 A. Well, the content one is the easiest 11 one. 12 Microsoft has since 1995 encouraged 13 content owners -- content owners being the 14 people who own the content that you go to 15 visit. So there are like a newspaper is 16 putting its headlines up. CNN is a content 17 owner, and they make their content available to 18 you. 19 Microsoft has encouraged these content 20 owners to use extensions to the standards that 21 are used for Internet browsing and to use these 22 extensions that are proprietary to Microsoft, 23 and as a result, Mozilla is forced to provide a 24 mechanism that allows the user to, when he 25 encounters a page that Mozilla is having 6939 1 trouble with when the Firefox browser can't 2 properly view it or when the user determines 3 that Mozilla hasn't properly rendered the page, 4 that is to say display the page on the screen, 5 there is a button that says view this page in 6 IE. 7 Kind of an escape hatch that would 8 allow you to get to the Internet Explorer if 9 you were having trouble with these proprietary 10 extensions or the like. 11 The second one, and this is something 12 that's happened recently, in fact over the -- 13 just before the holiday. 14 The Mozilla folks have reported 15 considerable difficulty in getting their 16 browser to work with the new Windows Vista 17 software, so -- new Windows Vista operating 18 system, so they're having difficulty getting 19 the -- their browser to work on Windows Vista. 20 MR. LAMB: Next slide, Darin. 21 Q. Sir, Conclusion of Law 4.8 reads, 22 Microsoft maintained a monopoly power in the 23 operating systems market by the following, 24 quote, anticompetitive conduct, end quote: 25 i.e., conduct which caused harm to the 6940 1 competitive process and thereby harm to the 2 consumers. 3 Eight, agreeing to give ISVs 4 preferential support in return for their 5 agreement to use Internet Explorer as the 6 default browsing software for any software they 7 develop with a hypertext-based user interface. 8 Sir, can you explain just briefly, I 9 think you've covered it, but default browsing 10 software, what is that? 11 A. Default browsing software is software 12 that is used for browsing -- browsing web 13 pages, whether those web pages are stored 14 locally on your computer or whether they're 15 stored on web servers at the other end of the 16 diagram. 17 Q. And what is a hypertext-based user 18 interface? 19 A. A hypertext-based user interface is 20 simply put, it's a web page. 21 Hypertext markup language is the 22 language that we use to create web pages. It's 23 the language that allows you to put the text of 24 your headline, for example, and then to say 25 make the headline bold and then put it in 14 6941 1 point font. And so do all of those things. 2 That's a hypertext markup. 3 And a user interface that is based on 4 the web -- a web page, where you've got buttons 5 and boxes in which you fill in information or 6 dropdown lists so when you type something in, 7 you get a list of choices when you get to a 8 particular input field. 9 Those elements are part of a hypertext 10 user-based interface, and that can be from a 11 page that's stored on your computer or a page 12 that's stored on a web server. 13 MR. LAMB: Can we get the next slide, 14 please? 15 Q. You have here as an example Intuit 16 Quicken or QuickBooks. 17 Can you explain that to the jury, 18 please? 19 A. Well, Quicken or Intuit, the company 20 that owns Quicken, thought that it would be a 21 good idea to enable its users to use the 22 Internet for a variety of purposes associated 23 with their use of the personal financial 24 management software, Quicken. Including, for 25 example, ordering checks. 6942 1 If you have Quicken, Quicken can work 2 with certain types of checks and formatted in a 3 certain way so that you can write the to -- the 4 to person and the amount in the correct way. 5 And in this -- so Quicken provided 6 this mechanism from within the application to 7 go out onto the Internet and perform E commerce 8 kinds of things; ordering checks and other 9 stuff, as well as obtaining software updates. 10 That's what Quicken -- how Quicken was 11 kind of extending its functionality and 12 reaching out to the Internet. 13 Q. Okay. And one of the bullet points is 14 Microsoft allows Intuit to ship IE with the 15 disk. 16 A. Yes. 17 Q. What are you referring to there? 18 A. Well, Quicken's software product when 19 you purchased it came on a CD. That was by 20 then the most common way of distributing 21 software, was on CD-ROMs, as opposed to 22 diskettes mercifully. 23 And what Microsoft allowed Quicken to 24 do was to include the Internet Explorer 25 software on the same CD as its applications 6943 1 software. It was, to use a term I've been 2 using before, it was bundled on the same disk. 3 MR. LAMB: Next slide, please. 4 Q. This notes differential treatment of 5 ISVs in relation to access to Windows and APIs. 6 What do you mean by that, sir? 7 A. Well, over time Microsoft has provided 8 different amounts of information, different 9 quality of information to independent software 10 vendors in advance of the shipment of 11 Microsoft's operating system software. 12 And so I referred last week to 13 something called beta software. 14 Beta software is software that is to 15 be made available in -- usually it's supposed 16 to be available within a reasonable amount of 17 time, reasonably soon, and so there is a -- but 18 there is a differential amount of information 19 that Microsoft provides to certain independent 20 software vendors when compared with other 21 independent software vendors. 22 Q. Okay. And why does early access 23 matter? 24 A. Early access matters because it is 25 important for independent software vendors to 6944 1 have their software work with the newest 2 versions of Microsoft software. 3 So what you don't want to have happen 4 first and foremost is that a user who installs 5 the newest version of Microsoft software to 6 cause your software already installed on the 7 user's computer to break or not work. 8 So you want to make sure that 9 installed software in the user's environment is 10 going to continue to work if the user chooses 11 to upgrade a piece of Microsoft software. 12 And the second piece that -- why early 13 access is critical in our business is, is that 14 you want to have your product ready that might 15 take advantage of certain of the new things in 16 the Microsoft operating system. 17 So if they have a -- have introduced a 18 new way of creating menus or tool bars or 19 whatever you want to have your product make use 20 of those pieces. 21 Q. You said that Microsoft had been doing 22 this over time. Over what period of time has 23 been Microsoft -- has Microsoft been engaging 24 in this differential treatment of ISVs in 25 relation to access to Windows and APIs? 6945 1 A. Since the late 1980s. 2 Q. Is it ongoing today? 3 A. It's ongoing today. 4 Q. In relation to beta access, you 5 testified, I believe Friday -- do you recall 6 you were talking about DR-DOS and you gave the 7 example of verified DOS and the example of 8 Bambi and the example of nested task. 9 And in there was this AARD code 10 example in relation to a beta access. Do you 11 recall that, sir? 12 A. I do. 13 Q. What was the impact of that beta 14 access distribution in relation to DR-DOS? 15 A. Well, the beta software in question 16 contained the AARD code, the code that detected 17 DR-DOS and issued the message, was distributed 18 to 15,000, approximately, beta testers. 19 These beta testers are influencers. 20 They were influential people, independent 21 software vendors, media, reviewers, and large 22 users. So large IT users. A large 23 corporation, the IT department within that 24 large corporation. 25 So these were important people in 6946 1 terms of establishing the reputation or the -- 2 for the common knowledge or the common sense of 3 a particular product or technology. 4 Q. And this differential treatment of 5 ISVs, how does this impact the industry 6 technologically? 7 A. Well, the companies that have access 8 -- earlier access to better quality information 9 are able to make better products in a more 10 timely manner than those who don't. 11 And given the ubiquity of Microsoft's 12 platform, given the ubiquity of Windows, having 13 access to the best possible information makes 14 an enormous difference in what you're able to 15 do and when you're able to do it. 16 MR. LAMB: Can we get the next slide, 17 Darin? 18 Q. Sir, Conclusion of Law 4.9 reads, 19 Microsoft maintained the monopoly power in the 20 operating systems market by the following, 21 quote, anticompetitive conduct, end quote: 22 i.e., conduct which caused harm to the 23 competitive process and thereby harm to the 24 consumers. 25 Nine, agreeing to release new versions 6947 1 of Office for the Apple Macintosh in return for 2 Apple's agreement to preinstall Internet 3 Explorer and make it the default web browser on 4 Apple's Macintosh operating system. 5 Sir, over what time period did this 6 happen? 7 A. I believe this was in the 1997 and '8 8 time frame, this particular -- 9 Q. And how long did it last? 10 A. I believe it was a five-year 11 arrangement, called for a five-year 12 arrangement. That would take it to 2002, I 13 believe. 14 Q. What does that mean to preinstall 15 Internet Explorer and make it the default web 16 browser? 17 A. Well, Apple makes personal computers, 18 Macintosh computers, and Apple also makes the 19 operating system, the Mac OS, and this 20 particular provision here is talking about 21 having Apple install or preinstall on every 22 computer that Apple makes, which is 100 percent 23 of the Macintoshes, the Microsoft Windows -- 24 I'm sorry, the Microsoft Internet Explorer for 25 the Mac and to make it the default browser for 6948 1 all Macintosh computers that Apple would sell. 2 Q. What is a cross-platform browser? 3 A. A cross-platform browser is a browser 4 that works on multiple different platforms. 5 For example, the Netscape Navigator 6 browser was a cross-platform browser. It could 7 run on UNIX computers, Macintosh computers, SGI 8 computers, and HP Apollo workstation computers. 9 It could run on a wide variety of 10 computer workstations, as well as Microsoft's 11 PC -- Windows PC software system. 12 Q. Okay. So Internet Explorer, is it a 13 cross-platform browser? 14 A. Internet Explorer ran on Windows, and 15 Microsoft made a version available on the 16 Macintosh and a version available on UNIX. 17 Q. So it was cross-platformed, then; 18 right? 19 A. It had, yes, three platforms. 20 Q. And when Internet Explorer first came 21 out, it was not tied to Windows; correct? 22 A. That's correct. 23 Q. And now it is tied to Windows; right? 24 A. It is tied to Windows. 25 Q. Now, in relation to the Mac OS, the 6949 1 Internet Explorer that is used on the Mac OS, 2 is it tied to the Mac OS operating system? 3 A. No, it is not. 4 Q. Okay. How is it configured then in 5 relation to the Mac OS operating system? 6 A. It's a separate application just like 7 Mozilla Firefox is or like Netscape Navigator 8 was. 9 Q. Okay. Are you familiar with the 10 phrase applications barrier to entry? 11 MR. HOLLEY: Objection, Your Honor. 12 THE COURT: Sustained. 13 MR. LAMB: Can we get Findings of Fact 14 340 to 356, please? 15 Q. There are several findings of fact 16 here, and I'm going read them to you. They're 17 going to take a little bit of time. And then 18 I'm going to ask you some specific questions. 19 Finding of Fact 340. By exchanging 20 its vital support for the agreement of leading 21 ISVs to make Internet Explorer the default 22 browsing software on which their products rely, 23 Microsoft has ensured that many of the most 24 popular web-centric applications will rely on 25 browsing technologies found only in Windows and 6950 1 has increased the likelihood that the millions 2 of consumers using these products will use 3 Internet Explorer rather than Navigator. 4 Microsoft's relations with the ISVs 5 thus represent another area in which it has 6 applied its monopoly power to the task of 7 protecting the applications barrier to entry. 8 Sir, from a technological perspective, 9 do you have an understanding as to what the 10 term applications barrier to entry means? 11 A. Yes. 12 Q. What is it? 13 A. It is a -- it refers to the number and 14 kind -- diversity of applications that a 15 particular platform needs to provide in order 16 to be viewed by the potential purchasers of 17 that platform as a viable alternative. 18 As a technical matter, does it have 19 enough applications of different kinds in order 20 to be able to do what I need the system to do. 21 And if you don't have that -- or I'm 22 sorry, the challenge of getting enough of those 23 applications from independent software vendors 24 is difficult, and it represents a barrier to 25 your being able to persuade people that your 6951 1 platform is a platform that can do the job for 2 them. 3 Q. What are web-centric applications? 4 A. Web-centric applications refer to 5 applications that make use of this new -- the 6 new Internet paradigm, the new way of thinking 7 of creating an application. 8 That includes a hypertext web 9 interface, for example, or obtains information 10 from websites and web servers throughout the 11 Internet. So these applications that have an 12 element of connectivity and based on these 13 standards that are prevalent in the Internet 14 age in the era of the Internet. 15 MR. LAMB: Could I get the next slide, 16 Darin? 17 Q. Finding of Fact 342. Just as 18 prei