7142 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 XXVII 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 8:27 a.m., January 9, 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 7143 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 R. CASHMAN MICHAEL E. JACOBS 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 7144 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 7145 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 7146 1 (The following record was made out of 2 the presence of the jury at 8:27 a.m.) 3 MR. LAMB: Thank you, Your Honor. 4 Minor housekeeping matter. When I 5 offered exhibits to be admitted yesterday, I 6 misspoke and I said 1425 rather than 425. I 7 believe Mr. Holley agrees with me. And we'll 8 make that change if we could on the record, and 9 we'll provide copies to the court reporter. 10 THE COURT: Any objection? 11 MR. HOLLEY: None, Your Honor. 12 THE COURT: 425 then is admitted. 13 MR. LAMB: Thank you, Your Honor. 14 THE COURT: Thanks for clarifying 15 that. 16 MR. LAMB: Thank you, sir. 17 THE COURT: Mr. Holley, do you want to 18 use that table? 19 MR. HOLLEY: To be honest, Your Honor, 20 I probably need more room than I've got here, 21 but I think it's better for me to be able to 22 look at him. 23 THE COURT: Sure, that's fine. 24 (The following record was made in the 25 presence of the jury at 8:33 a.m.) 7147 1 THE COURT: Everyone else may be 2 seated. 3 Mr. Alepin, would you resume the 4 stand. 5 You're still under oath. 6 RONALD ALEPIN, 7 recalled as a witness, having been previously 8 duly sworn, testified as follows: 9 THE COURT: Mr. Holley, you may 10 cross-examine. 11 CROSS-EXAMINATION 12 BY MR. HOLLEY: 13 Q. Good morning, Mr. Alepin. 14 Repeatedly during your testimony over 15 the prior three days you used the phrase we in 16 the industry; is that correct? 17 A. I believe I did, yes. 18 Q. But you don't speak for everyone in 19 the computer industry, do you? 20 A. No. 21 Q. And I'd like you to look at Slide 754. 22 There are major associations in the 23 computer industry that have publicly taken 24 positions adverse to yours; is that correct, 25 sir? 7148 1 A. I'm not sure what you mean by my 2 position, but -- 3 Q. Well, for example, in United States 4 against Microsoft, CompTIA and ACT took 5 positions adverse to the positions that you've 6 stated here; correct? 7 A. To some of the positions, I believe, 8 that would be a fair statement, yes. 9 Q. And in the European Commission case 10 that you testified about in direct, CompTIA and 11 ACT have taken positions adverse to the 12 positions you've taken here; correct? 13 A. I'm not sure I recall having testified 14 or referred to the European proceedings with 15 respect to specific testimony here. 16 I may have mentioned that I 17 participated in it, but I don't recall stating 18 positions or referring to positions there. 19 Q. Fair enough. 20 Okay. But my question to you, sir, is 21 the positions that you have taken in the 22 European case have been opposed by CompTIA and 23 ACT; correct? 24 A. They have taken positions different 25 from the positions taken by others who retained 7149 1 me, yes. 2 Q. CompTIA includes among its members 3 Lenovo, Motorola, and Hewlett-Packard; correct? 4 A. I believe that's the case, yes. 5 Q. And among the members of ACT are 6 Oracle, ebay, and the Orbitz Online Travel; 7 correct? 8 A. I think so. 9 Q. Now, you have done work for at least 10 four of Microsoft's most important competitors; 11 correct? 12 A. I'm not sure who is Microsoft's most 13 important competitors are, but I've done work 14 for companies that work with Microsoft and 15 sometimes compete with Microsoft. 16 Q. Well, you've done litigation related 17 work for RealNetworks; correct? 18 A. That is correct. 19 Q. And litigation related work for 20 Oracle? 21 A. Maybe litigation is a slightly 22 different term in Europe, but -- a process 23 similar to that, I'd agree. 24 Q. And you've done litigation-related 25 work for Novell; correct? 7150 1 A. Well -- excuse me. Are we in the 2 context of adverse to Microsoft, or are you 3 just talking about -- 4 Q. Well, in the first instance, I was 5 just asking you whether you've done 6 litigation-related work for Novell. 7 A. Then the answer is yes. 8 Q. And you've done litigation-related 9 work for Sun Microsystems? 10 A. That is correct. 11 Q. And can you tell the jury for 12 RealNetworks, Oracle, Novell, and Sun 13 Microsystems, were those all representations 14 adverse to Microsoft? 15 A. The RealNetworks one was adverse to 16 Microsoft. 17 The Oracle engagement after a fashion 18 was, I think, adverse to Microsoft. 19 I'm not -- I'm not recalling the 20 Novell engagement specifically against 21 Microsoft. 22 And the Sun matter was, yes, adverse 23 to Microsoft. 24 Q. Now, you, sir, are currently a 25 technology advisor to a law firm called 7151 1 Morrison & Foerster; correct? 2 A. That is one position I hold, yes. 3 Q. And I'd like to take a look at Slide 4 Number 722. Is this your web page from the 5 Morrison & Foerster website? 6 You need a new picture? 7 A. I'm not sure whether the present would 8 be an improvement over that one. 9 Q. Okay. And Morrison & Foerster has 10 clients whose interests are adverse to 11 Microsoft; correct? 12 A. I'm unaware of clients who may be 13 adverse to Microsoft, other than I think 14 Novell. I think that one might be. 15 Q. Let's look at Slide Number 723, which 16 is a list of Morrison & Foerster clients. 17 Novell is listed there and Oracle as well; 18 correct? 19 A. I see that, yes. 20 Q. Now, you have participated, I believe 21 as you said on direct, in the European 22 Commission case against Microsoft; is that 23 right? 24 A. That's correct, yes. 25 Q. And your original involvement was for 7152 1 something called the Computer and 2 Communications Industry Association; is that 3 right? 4 A. The CCIA, yes. 5 Q. And when the CCIA withdrew from the 6 European Commission case, you switched horses; 7 correct? 8 You went to work for ECIS at that 9 point; is that correct? 10 A. I was retained by ECIS. 11 Q. Which stands for European Committee on 12 Interoperable Systems? 13 A. That's the -- yes, that's what it 14 means. 15 Q. I'd like to take a look, please, at 16 Slide Number 721. 17 Now, among the leading members of ECIS 18 are Microsoft competitors IBM, Oracle, 19 RealNetworks, Red Hat, and Sun Microsystems; 20 correct? 21 A. That seems to be correct, yes. 22 Q. Now, Mr. Lamb asked you some questions 23 at the very outset of your testimony about your 24 litigation-related experience. Do you remember 25 that? 7153 1 A. Yes, I remember him asking. 2 Q. Okay. And you described some of the 3 lawsuits that you've been involved in; is that 4 right? 5 A. Yes. 6 Q. And you didn't mention one case that 7 you worked on in New York City involving IBM; 8 is that right? 9 A. I probably didn't mention a number of 10 them. 11 Q. Well, in the case entitled Commercial 12 Data Servers, Inc., against International 13 Business Machines Corporation, you submitted an 14 affidavit; is that right, or a declaration? 15 A. I probably at some point did. It's a 16 long time ago, I think. 17 Q. Well, it was four years ago. And you 18 don't remember whether you submitted a 19 declaration or not? 20 A. I don't -- I've done a lot of work 21 over the -- in my career, and I'm not sure what 22 the date is. 23 Q. Do you recall that the Judge in that 24 case rejected your testimony as speculative and 25 devoid of hard evidence? 7154 1 A. I'm not aware of that at all, I'm 2 sorry. 3 Q. Let's look at Slide Number 770. Do 4 you remember reading the decision in this case, 5 Mr. Alepin? 6 A. No. 7 Q. So you've never read this? 8 A. No, I have not. 9 Q. Well, let's look at Slide 771. And 10 there is a paragraph over here on page 68 which 11 says, while Mr. Alepin concludes in his 12 declaration that customers are unwilling or 13 unable to consider replacing their S/390 14 systems -- that's the IBM mainframe; right? 15 A. That is. 16 Q. -- because the conversion cost is 17 prohibitive, he offers no examples to support 18 this opinion. 19 You never read this? 20 A. I did not. 21 Q. Okay. And then over on page 69, Judge 22 McMahon writes, expert testimony rooted in 23 hypothetical assumptions cannot substitute for 24 actual market data. The speculative affidavits 25 of Mr. Alepin and Mr. Reed do not overcome for 7155 1 the lack of hard evidence. 2 This is the first time you've ever 3 seen this criticism of your work? 4 A. That's correct, yes. 5 Q. Now, you submitted an expert report in 6 this case; is that correct? 7 A. I did. 8 Q. And large portions of what's in that 9 expert report were borrowed from an expert 10 report in the Minnesota class action that was 11 written by Doctor David Martin; is that right? 12 A. I'm not sure large portions is 13 correct. 14 Q. Well, there are sections of your 15 report in this case that were borrowed almost 16 verbatim from Doctor Martin's report; correct? 17 A. There are portions that I adopted as 18 mine, yes. 19 Q. And Doctor Martin is no longer 20 testifying in this case; is that right? 21 A. I don't know whether that's the case 22 or not. 23 Q. The report that you borrowed from 24 Doctor Martin's report was based on memoranda 25 that another one of Plaintiffs' experts called 7156 1 Andrew Schulman wrote; is that right? 2 A. That is correct, yes. 3 Q. And are you aware that those memoranda 4 were written by committee? 5 Have you ever seen Dr. Noll's 6 testimony on that subject? 7 A. I don't recall having linked it in 8 that way, no. 9 Q. Have you read the deposition testimony 10 of any of the other experts that the Plaintiffs 11 intend to call in this case? 12 A. Yes. 13 Q. I'd like to take a look, if we could, 14 please, at Professor Noll's October 30, 2002 15 deposition at page 215, line 6 to 13. 16 I'd like you to focus here on what 17 Doctor testifies. The question is asked: 18 Question: What's your understanding 19 of the manner in which the, quote, 20 investigative report on Microsoft's 21 exclusionary actions by Doctor Martin was 22 prepared? How did that come to be prepared? 23 Do you know? 24 And the answer is: 25 Answer: It was written by committee, 7157 1 basically. 2 Do you have any basis to disagree with 3 that testimony? 4 A. No, I don't have any basis to 5 disagree. 6 Q. Now, you submitted a report that bears 7 some resemblance to your report in this case in 8 the federal multidistrict litigation case 9 against Microsoft; is that correct? 10 A. That's correct. 11 Q. But you took some things out in 12 between the MDL report and this report; right? 13 A. Yes, sir. 14 Q. And one of the things that you decided 15 to delete was a sentence talking about 16 Microsoft's attack squad going to journalists 17 trying to persuade them that Windows was better 18 than OS/2; is that right? 19 A. That's -- well, I'd have to see it, 20 but I know I took material out. 21 Q. Well, do you remember taking that 22 material out? 23 A. The report's 170 pages long. There's 24 a lot of material in it. It's a little hard 25 sitting here to recall what I added and what I 7158 1 took out. 2 Q. Okay. Well, I don't mean for this to 3 be a memory quiz. 4 MR. HOLLEY: Your Honor, may I 5 approach the witness? 6 THE COURT: Yes, you may. 7 Q. Mr. Alepin, I'd like to show you, sir, 8 a copy of your deposition transcript taken in 9 this case on July 18 of 2006. 10 And if you'd direct your attention to 11 page 89, sir. 12 And I'm starting on line 21 of page 13 89. 14 I asked you the question: And I'm 15 interested in the paragraph that begins 16 Microsoft's, quote, attack, closed quote, squad 17 went to journalists, and you say uh-huh or 18 something like that. 19 And then I asked you the question: 20 That section does not appear in the Iowa 21 report. Can you tell me why that's gone? 22 Does that refresh your recollection, 23 sir, that you did delete in between the MDL 24 report and the Iowa report the statement about 25 Microsoft's attack squad? 7159 1 A. Well, I mean, it certainly refreshes 2 my recollection about the exchange that you and 3 I had, but it's still unclear to me what 4 particular passage and how much was taken out, 5 so -- but I recall now our exchange over this 6 particular item. 7 Q. And you're not denying that there was 8 a statement in the MDL report about Microsoft's 9 attack squad going to journalists talking about 10 OS/2 failures and that that was taken out in 11 the Iowa report? 12 A. I'm not denying that. 13 Q. Okay. And you told me in July that 14 the reason you took that out -- and I'm now at 15 page 90, line 7 to 8 -- was that it sounded too 16 much like breathless journalism; is that right? 17 A. That's correct. 18 Q. And the reason that you were worried 19 about breathless journalism is that you wanted 20 to have your opinions in this case be fair and 21 balanced; is that right, sir? 22 A. Well, I wanted my opinions to be fair 23 and balanced unrelated to that particular 24 passage. 25 Q. In this vein of fairness and balance, 7160 1 did you consider telling the jury that the 2 president of IBM's PC software division 3 traveled the world crashing Windows machines so 4 often that he got the nickname Blue Ninja? 5 A. Did I consider -- 6 Q. Did you consider telling the jury that 7 fact? 8 A. Which jury? This particular one? 9 Q. This jury, yes, sir. 10 A. No, I didn't. 11 Q. Okay. Did you review deposition 12 transcripts in forming your opinions in this 13 case? 14 A. Yes. 15 Q. And you reviewed as many as you 16 thought you needed to review in order to be 17 confident that your opinions were accurate; is 18 that right, sir? 19 A. Probably. And inevitably more than I 20 needed to, yes. 21 Q. All right. I'd like to show you a 22 video clip, number 64, of the deposition of Lee 23 Reiswig, the president of IBM's PC software 24 division, which was taken on the 19th of 25 January, 2002? 7161 1 MR. LAMB: Objection. Lacks 2 foundation. 3 MR. HOLLEY: Your Honor, I'm not 4 offering it into evidence. 5 THE COURT: Overruled. 6 (Whereupon, the following video of Lee 7 Reiswig was played to the jury.) 8 And as part of that marketing push, is 9 it true, sir -- 10 And as part of that marketing -- 11 Question: And as part of that 12 marketing push, is it true, sir, that you did a 13 demonstration in front of all of these people 14 and in front of the press on how Windows could 15 crash? 16 Answer: I was illustrating the 17 stability of OS/2 versus Windows. 18 Question: And to do that, you showed 19 the press and all these other people, you 20 specifically showed them a Windows interface 21 and showed it crashing; is that right? 22 Answer: I showed the misbehaving the 23 application would cause you to crash Windows 24 and have to reboot your PC and that very same 25 application in OS/2 would not. 7162 1 Question: And do you recall the term 2 bad app? 3 Answer: Vaguely. 4 Question: That's the term that IBM 5 used to basically describe an application that 6 it was demoing to crash Windows. 7 Answer: No, I don't recall that. I 8 do recall running the application, but I don't 9 remember calling it bad app. 10 Question: How many times did you 11 perform that demonstration over the next year? 12 Answer: I don't have exact count. I 13 did it every four to six weeks somewhere around 14 the world. 15 Question: And is it during this 16 period that you developed the nickname Blue 17 Ninja? 18 Answer: Yes. 19 (Whereupon, the playing of the video 20 of Lee Reiswig concluded.) 21 Q. Is it your testimony, Mr. Alepin, that 22 it was Microsoft's obligation to stand by 23 mutely as an IBM senior executive toured the 24 world crashing Windows? 25 MR. LAMB: Objection. Relevance. 7163 1 THE COURT: Sustained. 2 MR. HOLLEY: Your Honor, there's a 3 claim in this case about FUD relating to OS/2. 4 Q. You testified last Thursday, 5 Mr. Alepin, that you looked at Microsoft's 6 source code in connection with the MDL case; is 7 that right? 8 A. I believe that's the case, yes. I'm 9 sorry. I did testify, and I believe that was 10 the case. 11 Q. And have you had occasion to think any 12 further about that question, about where you 13 looked at source code? 14 A. No. I've been busy thinking about 15 other things. 16 Q. I'd like you to take a look at Slide 17 752, sir. 18 Now, last week I asked you questions 19 and you gave the answers on the left-hand side, 20 and you said in response -- we were trying to 21 figure out where you looked at the source code, 22 and you said in response: 23 Answer: I believe it occurred in 24 conjunction with the MDL litigation is really 25 when I think it occurred. 7164 1 But on the right-hand side in your MDL 2 deposition when you were asked the question, 3 did you run any -- did you execute any software 4 programs or look at any source code in 5 connection with any of your work? And you said 6 not this time. 7 How do you square those two 8 statements, sir? 9 A. There were difficulties in obtaining 10 the source code from Microsoft in the MDL 11 litigation, and I did not receive the source 12 code from the Plaintiffs' attorneys until after 13 my deposition in the MDL proceeding. So I got 14 the source code only after I was -- only after 15 this particular exchange on the right took 16 place. 17 Q. Okay. And the source code that you 18 looked at, just to be clear, is the source code 19 you describe on the left, which is for 20 QuickPascal, Quick C, MS-DOS, and certain 21 elements of Microsoft Windows? 22 A. Yes. 23 Q. Now, you also testified on direct that 24 you reviewed a large number of documents in 25 forming your opinions in this case; is that 7165 1 right? 2 A. Yes. 3 Q. I'd like you to take a look, if you 4 would, sir, at Slide 707. 5 Okay. Now, you said you relied upon 6 thousands of documents; is that right? 7 A. That's correct. 8 Q. Okay. Could we look at Slide 708, 9 please? 10 Now, in connection with your expert 11 reports both here and in the MDL case, you 12 provided exhibits which listed the documents 13 that you relied on in forming your opinions; is 14 that right? 15 A. I did. 16 Q. And the first one on the left here is 17 Exhibit B from your Iowa report, and it 18 incorporates by reference the documents you 19 relied on in your MDL report; is that right, 20 sir? 21 A. Yes. 22 Q. Okay. And I'm happy to have you count 23 them, but I've done it several times. I looked 24 at the two Exhibit B's and I get 501 documents. 25 Do you have any reason to disagree with that, 7166 1 sir? 2 A. If you counted several times, no. 3 Q. So what's right, 501 documents or 4 thousands of documents? 5 A. Thousands of documents is correct. 6 Q. But those weren't disclosed to 7 Microsoft in your expert report; correct? 8 A. I think there are two parts to the -- 9 to my answer, the first of which is that there 10 are many documents that are incorporated by 11 virtue of them being exhibits to depositions 12 and being parts of the pleadings submitted in 13 the various other proceedings. 14 For example, in the Caldera matter, 15 there are hundreds and hundreds of individual 16 documents, if not more, that are referenced by 17 the -- by those proceedings. 18 So the number would easily double or 19 triple that just on the basis of adding 20 embedded, if you will, documents. 21 The second part is that I have at 22 earlier points in time reviewed many more 23 thousands of documents, which are the same 24 documents and which provided me with an 25 understanding and a basis for my knowledge and 7167 1 experience in these matters. 2 Q. And that prior review of documents is 3 part of what you relied on in forming your 4 opinions in this matter; correct? 5 A. Necessarily so, I think. 6 Q. Okay. Now, in preparing for your 7 testimony in this case, you used things called 8 disassemblers and hex viewers in some respects; 9 correct? 10 A. I have, yes. 11 Q. And can you tell the jury what those 12 tools are used for, disassemblers and hex 13 viewers? 14 A. Well, a -- let's start with a 15 disassembler, perhaps. 16 When a user writes a piece of 17 software, a programmer writes a piece of 18 software, he uses a language that we as humans 19 can understand, and then it needs to be 20 translated into something, the zeroes and ones 21 that the computer can understand. 22 Today virtually all of our efforts are 23 spent using higher level languages, languages 24 that allow us to say if then else and to create 25 easier ways to talk about programmatic elements 7168 1 that are going to be in our software. 2 Back some time ago, and still in 3 certain -- today in certain instances, we write 4 using a program -- a language that's called the 5 assembler language. 6 And the assembler language is close to 7 the metal programming. It means that one 8 instruction that I write corresponds to one 9 instruction that the computer is going to 10 execute. 11 So, for example, add, I would write 12 add in the assembler language, and that would 13 translate into whatever the zeroes and ones 14 were that represent an add instruction on that 15 particular computer. 16 Well, that -- we call that assembler 17 language. 18 And when you -- there is a tool that 19 can take the zeroes and ones and reconstruct it 20 back to the add instruction that I originally 21 created. 22 So if zero one zero one is add, then 23 the tool reads zero one zero one and says, oh, 24 this is an add instruction and tells me that 25 it's add rather than me having to remember that 7169 1 zero one zero one is add. Those kinds of 2 tools. So reconstructs a program step by step 3 back into the assembler language. 4 Q. And if I use hex viewers and 5 disassemblers to look at the code, for example, 6 of Windows 95, I can learn a lot about what's 7 going on inside that operating system; correct? 8 A. You can learn some of what's going on. 9 I don't know what a lot is because there's an 10 awful lot to learn. So a lot is a relative 11 term. 12 Q. And hex viewers and disassemblers have 13 been widely available to software developers 14 for many years; correct? 15 A. A long -- I would say a long time, 16 yes. 17 Q. Now, I'd like to change topics now and 18 talk a little bit about your testimony on 19 direct about applications. 20 In talking generally about 21 applications, you gave as one example the 22 operating system utilities that Symantec 23 markets; is that right? 24 A. I'm not -- I know I mentioned 25 applications, and I know I mentioned Symantec 7170 1 and I assume the utilities, but I'm not sure I 2 conflated them into the same category. But if 3 you could perhaps help me out here. 4 Q. Okay. One of the things that you said 5 on direct was that there are companies like 6 Symantec that make antivirus and antiphishing, 7 p-h-i-s-h-i-n-g, software; right? 8 A. Yes. 9 Q. And you described that software as 10 very, very valuable for users, correct? 11 A. I believe so, yes. 12 Q. And one such utility that has 13 antivirus and antiphishing functionality is 14 Norton's Internet Security program; correct? 15 A. That's -- yes, so that's 2007 version. 16 MR. HOLLEY: Can we look at Slide 745, 17 please. 18 Q. And this is a page from the Symantec 19 website that describes Norton Internet 20 Security. 21 It says that it blocks spyware, 22 viruses, worms, crimeware, and other risks. 23 From a technological standpoint, how 24 does the functionality provided by Norton 25 Internet Security relate to the functionality 7171 1 provided by Windows XP? 2 A. Technologically, let's see if I can 3 describe -- it's a system utility type of 4 software that rides on top of the operating 5 system. So it's a -- it is a -- it works with 6 Windows. 7 Q. From a technological standpoint, what 8 is the relative technological content of 9 Windows XP versus Norton Internet Security in 10 terms of R and D time or lines of code or 11 similar measures? 12 A. Well, in the aggregate, if you're 13 including everything in the box of Windows, 14 including, for example, Solitaire and Reverse E 15 and those things, Windows XP source code is 16 probably several times the size of Norton's 17 utilities. Perhaps -- perhaps tens of times, 18 something like that. 19 Q. Maybe even hundreds of times, right, 20 hundreds of times larger? 21 A. Well, what I've seen from Microsoft's 22 statements describing in technical for its 23 software, sometimes the number 50 million lines 24 of code is referred to. 25 I don't have any reason to believe 7172 1 that that's not the case. It may be more; it 2 may be less. 3 And I would venture to say that 4 Norton's software package here is probably in 5 the million -- a million lines of code or more. 6 Q. How does the 69.99 price of Norton 7 Internet Security relate to the price of 8 Windows XP Home? 9 MR. LAMB: Objection. Relevance. 10 THE COURT: Overruled. 11 A. The retail price of Norton utilities 12 is $69, and I believe the Windows XP Home 13 Edition price -- now, this is going to -- I 14 think the full boat -- I'm sorry, the price for 15 Windows XP Home Edition is 199, but I could be 16 confusing that with the Windows XP Professional 17 license. 18 Q. You're not sure one way or the other 19 what the retail price of Windows XP Home is; 20 correct? 21 A. Not right now, no. 22 Q. Now, on direct in talking about 23 applications, you said that Microsoft did not 24 have any real applications between 1979 and the 25 late 1980s; is that right? 7173 1 A. I'm not sure that -- I believe I said 2 that Microsoft's applications were not -- when 3 Microsoft first started out, Microsoft did not 4 have applications. 5 Later Microsoft developed 6 applications, but they were not the preferred 7 or the most popular applications on the -- 8 available for PC users. 9 Q. Well, let's look at Slide Number 706. 10 Now, this is your slide; right? 11 A. Uh-huh. 12 Q. Okay. And what you say is first 13 killer app VisiCalc, and then you refer to 14 WordStar, Lotus 1-2-3, and WordPerfect, and 15 then the statement appears Microsoft had no 16 real applications; correct? 17 A. That's correct. 18 Q. Okay. And then let's look at Slide 19 Number 705. 20 Mr. Lamb was asking you about the 21 slide we just looked at, and he asked you the 22 question: During this time frame when 23 WordStar, Lotus 1-2-3, and WordPerfect came out 24 and were killer applications, did Microsoft 25 have any killer applications? 7174 1 You said: No -- excuse me -- it 2 didn't have any. 3 And then Mr. Lamb asked you: What 4 time period are we talking about here? What 5 time period? 6 And you said: We're talking about 7 1979 probably through the late 1980s; correct? 8 A. Yes. 9 Q. So your testimony was that from 1979 10 through the late 1980s, Microsoft had no real 11 applications? 12 MR. LAMB: Objection. Misstates his 13 testimony. 14 THE COURT: He can correct it if he 15 wishes. 16 A. It's no real killer applications was 17 the way I understood the exchange, what the 18 question was trying to get at. 19 Q. Okay. But let's look back again at 20 Slide 706. 21 That doesn't say no real killer 22 applications, does it? It says no real 23 applications. 24 A. The -- and I believe what I said, at 25 the time when Microsoft was formed, it did not 7175 1 have applications. It was a developer tools 2 software company that was -- I believe that's 3 the exchange that -- 4 Q. Well, let's put aside for a moment the 5 exchange you had with Mr. Lamb, and I'd just 6 like to ask you a question now to understand 7 what you're saying. 8 When you put this slide up and said 9 Microsoft had no real applications, what time 10 period were you referring to? 11 A. When Microsoft was first organized as 12 a company, it was a developer tools company. 13 That's what I'm referring to. 14 Q. Okay. Let's look at Slide Number 709. 15 Now, you have no reason to believe 16 that all of the Microsoft applications shown on 17 this chart between 1984 and 1989 were, in fact, 18 released, do you? 19 A. No. To the contrary, I know they were 20 released. 21 Q. And Word 1 for the Mac was a killer 22 application, wasn't it? 23 A. A killer application? 24 Q. For the Macintosh. 25 A. I believe the context is in the 7176 1 personal computer market, not the Macintosh 2 market. 3 Q. My question, sir, to you is, was Mac 4 Word a killer application for the Macintosh? 5 A. I don't think as much, no, not as -- 6 Q. So an 80 percent share doesn't equate 7 to killer in your parlance? 8 A. Not the -- not the way I described 9 what a killer application was. Not what I 10 intended when I used the phrase. 11 Q. Okay. Now, you testified on direct, 12 sir, that there is -- there was less 13 competition in the word processing business in 14 the mid '90s when you said Microsoft was 15 dominant with Word than there had been in 16 earlier periods; is that right? 17 A. That's correct. 18 Q. And you also testified, sir, that 19 there was less competition in spreadsheets by 20 the mid '90s when you said Microsoft had become 21 dominant than there was in the '80s; is that 22 correct? 23 A. That's correct. 24 Q. But that lesser competition didn't 25 lead to any higher prices for those two 7177 1 categories of applications, did it? 2 A. Are you asking whether the -- which 3 direction are you asking whether the price 4 changed? 5 Q. Okay. Well, let's look at Slide 6 Number 719 in respect to spreadsheets. 7 You say that in the period in orange 8 on the left there was more competition, right? 9 '88, '89, '90. 10 A. And going backwards, yes. 11 Q. And going backwards, fair enough. 12 And you say that there was less 13 competition in the mid '90s? 14 A. That's correct. 15 Q. And my question to you, sir, was but 16 the lower competition didn't cause prices to go 17 up, did it? 18 MR. LAMB: Objection. Lacks 19 foundation. Outside the scope. 20 These are not exhibits that have been 21 admitted. There's no foundation to them, and 22 they're not providing them to us before they 23 just flip them up. We provided them with 24 copies of everything before they put them up. 25 MR. HOLLEY: Your Honor, I hesitate to 7178 1 go into this now, but there was an agreement 2 between counsel that does not include 3 demonstrative views on cross-examination. 4 There is no procedure for providing 5 advance notice so that a witness can be 6 prepared about what I'm going to ask him on 7 cross. 8 MR. LAMB: I agree, Your Honor, but 9 that doesn't mean that they can show something 10 that has no foundation that hasn't been 11 admitted that goes to pricing which is not 12 relevant, which this witness didn't talk about. 13 MR. HOLLEY: Your Honor, nothing could 14 be more -- 15 THE COURT: At this time we are going 16 to take up the matter outside of the presence 17 of the jury. 18 I ask you to remember the admonition 19 previously given. 20 Leave your notebooks here, and please 21 exit to the jury room. 22 (The following record was made out of 23 the presence of the jury at 9:14 a.m.) 24 THE COURT: You may be seated. 25 Okay. What seems to be the problem 7179 1 here? 2 MR. LAMB: Excuse me, Your Honor? 3 THE COURT: What seems to be the 4 problem? Were they supposed to give you 5 demonstratives for cross or not? 6 MR. LAMB: No. The problem is they're 7 putting up a demonstrative of something that 8 hasn't been admitted to, that he has no 9 foundation to testify to, that they've laid no 10 foundation to. It's outside the scope. It 11 goes to pricing. They complained vociferously 12 about talking about market issues and economic 13 issues, and now they're going to pricing. 14 This witness did not testify about 15 specific pricing of any of these types of 16 things, and they're showing a slide that shows 17 something that they've laid no foundation for. 18 THE COURT: Mr. Holley? 19 MR. HOLLEY: Your Honor, this witness 20 testified and was allowed to testify about 21 impacts of Microsoft's actions on the computer 22 industry in general. 23 He also testified on direct that -- 24 about the value of applications software, and 25 he told the jury at least twice that 7180 1 applications are the reason why people buy 2 computers. 3 It is within -- once he's testified 4 about the value of software products, it's 5 within the scope of cross-examination to ask 6 him questions about relative value. 7 And the notion that that is irrelevant 8 is frankly mind-boggling to me. This is an 9 overcharge case. Prices are what this case is 10 about. 11 So that's the first point why it's 12 within scope and why it's relevant. 13 The second point is, this is 14 impeachment. It's cross-examination. 15 There is no agreement between the 16 parties that I have to give notice before I do 17 my cross of what I'm going to say and that -- 18 that would be quite remarkable. 19 Also, you can impeach witnesses with 20 all sorts of things that aren't admissible into 21 evidence. I don't think Mr. Lamb is suggesting 22 that. 23 MR. LAMB: Your Honor, they're 24 entitled to impeach with exhibits, and then 25 what happens is they show me the exhibit before 7181 1 they're going to impeach on any exhibit. Okay. 2 That's what we did with them. They 3 don't have to give it to us 48 hours in 4 advance, but they just can't flip it up on the 5 screen like this. 6 THE COURT: I agree. You have to show 7 it to the Plaintiffs first to lay a foundation 8 or make an objection. 9 MR. HOLLEY: Fair enough, Your Honor. 10 THE COURT: Also, if you're going to 11 continue this line of questioning regarding 12 price, you're opening the door for him to come 13 back on redirect on economics. 14 MR. LAMB: Thank you, Your Honor. 15 Thank you. 16 THE COURT: You just opened the door. 17 MR. HOLLEY: It's Microsoft's view 18 that he did testify extensively about 19 economics. 20 THE COURT: I don't recall anything 21 about price, but you opened the door. 22 MR. HOLLEY: I understand that point, 23 Your Honor. 24 THE COURT: So now he's free to 25 testify about price. 7182 1 MR. LAMB: Your Honor, may I make one 2 more comment? And it's a concern about the 3 video deposition that was shown. 4 THE COURT: Yes. 5 MR. LAMB: This is not something that 6 he testified that he saw. 7 One of the things that happened 8 yesterday, there was a huge vociferous 9 objection to referring to deposition testimony, 10 and then I tied it in and Mr. Alepin said he 11 reviewed it and he relied on it. He didn't say 12 he reviewed and relied on it. 13 That's not appropriate just to show 14 video deposition testimony, unless it's 15 something that he reviewed and relied on, and 16 then certainly they can impeach him on. 17 MR. HOLLEY: Your Honor, that's the 18 point. 19 He purports to have reviewed extensive 20 evidence in the record. I'm entitled to point 21 out evidence in the record that is inconsistent 22 with his testimony that he deemed to ignore. I 23 can't be limited on cross-examination to things 24 he says he relied on. 25 There are 23 million pages of 7183 1 documents in this case and scores and scores 2 and scores of depositions, and there are many, 3 many pieces of evidence that Mr. Alepin 4 conveniently ignored, and that is going to be a 5 theme of my cross-examination, and there's no 6 basis whatsoever to say that I can't do that. 7 MR. LAMB: Your Honor, I'll just -- 8 just one last statement. 9 I do not understand how that testimony 10 of that witness on that videotape was relevant 11 to impeaching anything that he testified to. 12 There was no linkup. There was no 13 relevance. They're just showing something that 14 they believe supports their case. 15 It had nothing to do with his 16 testimony. Whether someone went around 17 crashing IBM -- crashing Windows has nothing to 18 do with the subject matter that he testified 19 to. 20 MR. HOLLEY: Well -- Sorry. I didn't 21 mean to interrupt, Mr. Lamb. 22 There was a checkmark yesterday on the 23 infamous chart, which is now against the wall, 24 saying that Microsoft engaged in FUD against 25 OS/2. 7184 1 It's perfectly legitimate impeachment 2 of that testimony to point out that whatever 3 nasty things Microsoft said about OS/2 were 4 richly deserved because IBM was running around 5 the world telling people that Windows crashed. 6 That's perfectly legitimate, Your 7 Honor. 8 THE COURT: Well, consistent with my 9 prior order, which was in regard to this, is 10 that you may not produce evidence of other 11 entities' illegal or anticompetitive conduct 12 merely to show that illegal conduct occurred or 13 to justify its own conduct. It has to be 14 relevant to its specific defense or claim. 15 Also, the Court found that during the 16 openings, that I did allow you to talk about 17 it, and I'll decide the admissibility of acts 18 of conduct of the Defendant's competitors on an 19 issue-by-issue basis. 20 However, you must make some showing 21 that this was some practice that was prevalent 22 in the industry and something that happened and 23 -- but it can't be something that's illegal or 24 unlawful. 25 You do recall that; right? 7185 1 MR. HOLLEY: Yes, Your Honor, and it's 2 my view that anything that Mr. Reiswig did is 3 just the American way. It's part of the free 4 enterprise system. 5 People have a First Amendment right 6 under a case called Central Hudson Gas to go 7 around and say whatever they want to say about 8 their competitors' products as long as they 9 don't incur Section 2 liability for making 10 knowingly false statements. 11 I don't mean to suggest for a moment 12 that IBM did anything anticompetitive or 13 anything illegal. That is not our submission. 14 Our submission is that this is 15 elbows-out competition; it's good for 16 consumers. 17 THE COURT: You didn't want him to 18 talk about competition. 19 MR. HOLLEY: Pardon? 20 THE COURT: You objected during his 21 direct about him talking about competition. 22 MR. HOLLEY: And he continued to do it 23 for three days, Your Honor. 24 And I need -- now that that has 25 happened, I need to cross-examine him about all 7186 1 the things he was allowed to say. 2 THE COURT: He talked about the acts 3 of the Defendant, he didn't talk about acts of 4 IBM. 5 MR. HOLLEY: He didn't talk about 6 what, Your Honor? 7 THE COURT: He didn't talk about the 8 acts of IBM. 9 MR. HOLLEY: He did, actually. He 10 talked about some things that IBM did. But he 11 talked about things that Microsoft did, and it 12 is relevant when he says that Microsoft had 13 various stratagems and tactics and whatever 14 other words he uses to talk about what is 15 common in the market. 16 THE COURT: You got to lay foundation 17 for it and you haven't done that. You got to 18 lay some foundation. 19 MR. HOLLEY: That he -- 20 THE COURT: You can't just say -- put 21 something on the board and say this Blue Ninja 22 guy did this. 23 Can't you do some foundation that -- 24 did you do a study about what other companies 25 as well as Microsoft's done in the marketplace 7187 1 concerning FUD and other activities? 2 You can't just bore into it without 3 some foundation. Otherwise it will be 4 irrelevant. 5 MR. HOLLEY: Yes, Your Honor. 6 MR. LAMB: Your Honor, if I may. 7 Moreover, based on your prior ruling, 8 they can't impeach by other acts. They can 9 make the claim that it's elbows out, but they 10 can't turn around and list all these other acts 11 that other individuals and other companies did. 12 That would conflict with your order. 13 And we'd move to strike at this time 14 the Reiswig testimony. There's been no linking 15 up. There's been no relevance, and it violates 16 your express order. 17 MR. HOLLEY: Your Honor, for the 18 reasons I said earlier, it did not violate the 19 order. 20 The order talks about things like 21 saying, you know, DRI stole betas, therefore, 22 it's okay if Microsoft ever did it, which it 23 didn't, and because that conduct is illegal. 24 I'm not saying for a moment that what 25 Mr. Reiswig did is illegal or anticompetitive. 7188 1 It's a little -- 2 THE COURT: It just leaves the 3 impression to the jury that it is. 4 MR. HOLLEY: No, the impression -- 5 THE COURT: So you're going to tell 6 the jury, then, it's not illegal? 7 MR. HOLLEY: Absolutely. We're going 8 to tell the jury that this is the way 9 competition works in the software industry. 10 THE COURT: How is it relevant to what 11 he's been testifying? He's only talked about 12 the acts of Microsoft. 13 MR. HOLLEY: Because those acts, Your 14 Honor, are either competitive or 15 anticompetitive under instruction number -- 16 THE COURT: But you don't want them 17 talking about competition. 18 MR. HOLLEY: But, Your Honor, if you 19 look -- 20 THE COURT: And I sustained that 21 objection over and over again on your behalf 22 that he can't talk about competition. 23 MR. HOLLEY: Well, Your Honor, with 24 respect to Mr. Lamb, when Your Honor said 25 sustained, he would add the phrase in a 7189 1 technological sense or in your view and proceed 2 to ask the same question again. 3 So the -- all that testimony came in. 4 And if you look at the chart that 5 Mr. Alepin had up yesterday at the end of the 6 day, that's all about competition. That's all 7 that's about. It's all about competition. 8 So my view is that having allowed all 9 that testimony to come in, it's in the 10 evidence, it's in the record, Microsoft now has 11 to be able to cross-examine it. 12 Iowa law is very clear that 13 cross-examination is critical, that there has 14 to be quite free reign on cross-examination, 15 and that's part of a fair trial. 16 Plaintiffs' counsel have said that to 17 the Court already in this case. 18 THE COURT: Well, free reign does not 19 mean you can go into areas without establishing 20 foundation and relevance. 21 Do you agree? 22 MR. HOLLEY: I do agree with that, 23 Your Honor. 24 THE COURT: Then do it. 25 MR. HOLLEY: But I believe that the 7190 1 cross-examination concerning FUD is directly 2 relevant. 3 That is one of the -- that was the 4 first column in Mr. Alepin's chart, was FUD. 5 That's what he talked about. He talked about 6 it a lot. 7 He talked about it with regard to 8 DR-DOS and OS/2, and I'm -- you know, we have 9 to be entitled to challenge that testimony. 10 THE COURT: Okay. Motion to strike is 11 denied. 12 Anything else? 13 MR. LAMB: No, Your Honor. 14 THE COURT: Bring the jury back. 15 (The following record was made in the 16 presence of the jury 9:30 a.m.) 17 THE COURT: Everyone else may be 18 seated. 19 Continue, please. 20 CROSS-EXAMINATION (CONT'D) 21 BY MR. HOLLEY: 22 Q. Mr. Alepin, I'd now like to turn to 23 your general testimony about operating systems. 24 You had a slide that described various 25 operating systems available in the marketplace; 7191 1 correct? 2 A. I did, yes. 3 Q. Okay. And can we look at Slide Number 4 713, please. 5 This is your slide concerning 6 operating systems; is that right? 7 A. That's correct. 8 Q. Okay. And the purpose of this slide 9 was to show the jury what sorts of products are 10 available in the marketplace? 11 A. In part, yes. 12 Q. Now, you refer up there in the 13 right-hand corner to UNIX; is that correct? 14 A. I do. 15 Q. And UNIX isn't actually a product 16 itself, is it? It's a family of operating 17 systems? 18 A. It's an operating system, and there 19 are different flavors of operating system 20 products that are based on UNIX, the UNIX 21 operating system. 22 Q. Okay. And I'd like you to look if you 23 would, sir, at 714. 24 All of these things down in the 25 right-hand side are flavors of UNIX, right? 7192 1 A. I'm happy I chose flavors. 2 Q. Great minds think alike. Okay. 3 A. Well, thank you. 4 Q. So those are all flavors of UNIX on 5 the right; correct? 6 A. Yes, they seem to be, and companies 7 who supply them, yes. 8 Q. One of the UNIX suppliers is 9 Microsoft, correct, with a product called 10 Xenix? 11 A. This is over time and from the early 12 1980s, I think. So, yes, I don't think that 13 Microsoft -- I'm sorry. I'm not sure that 14 Microsoft continues to sell it, but over time, 15 that's true. 16 Q. Now, are you familiar with a request 17 by AT&T to Microsoft to create a merged version 18 of UNIX in the late 1980s that would 19 incorporate AT&T, System 5 UNIX, and Xenix? 20 A. I recall discussions about that at the 21 time. 22 Q. Okay. And AT&T, as you testified, was 23 the original developer at Bell Labs of UNIX; 24 correct? 25 A. It was the original, yes, developer, 7193 1 yes. 2 Q. Are you aware that that merged version 3 of System 5 UNIX and Xenix won an award as the 4 best version of UNIX in 1987? 5 A. That's quite possible; quite possible. 6 Q. And that version of UNIX supported 7 long file names, didn't it? 8 A. I'm not sure whether that's true or 9 not, but that's also possible. 10 Q. You don't know one way or the other? 11 A. This is 20 years ago with respect to 12 the specific functionality. I'm not sure 13 whether it was in the version in 1987 or 1991 14 or whenever, but it's possible. 15 Q. Now, you drew up on the board a 16 diagram of the structure of an operating 17 system; is that correct? 18 A. Yes. I think a couple of times, 19 perhaps. 20 Q. And I'd like to take a look at that. 21 I took the liberty of making it 22 pretty, but could we look at Slide 704? 23 Now, is this your diagram of an 24 operating system with the kernel in the center 25 and then the GUI and file system at the next 7194 1 ring, middleware at the next ring, and the 2 applications at the outer ring? 3 A. Not quite. 4 Q. Okay. 5 A. I think I -- excuse me. 6 Q. No, I'm sorry, I didn't mean to 7 interrupt you. 8 A. I think I drew the diagram, certainly 9 inartfully, but with the intention of not 10 having middleware complete a circle around the 11 operating system because -- and I think I 12 mentioned this at a couple of points; that not 13 all applications use middleware. 14 So they would be connected to the 15 interior portions of the operating system other 16 than riding on top of middleware. 17 So there's -- there should be a line 18 on middleware, and it shouldn't make a full 19 circle, maybe impressionistically a half 20 circle. 21 MR. HOLLEY: Your Honor, can I go draw 22 what the witness is describing on this so we 23 are agreeing about what it ought to look like? 24 THE COURT: Certainly. 25 MR. HOLLEY: It won't be as nice as 7195 1 that. 2 Q. So as I understand it, Mr. Alepin, you 3 say that there is a circle in the center, and 4 that's called the kernel? 5 A. Excuse me, could I -- I have to look 6 right through the reporter. 7 Q. Oh, I'm sorry. 8 I'm trying to make sure as many people 9 can see this as possible, but you're the most 10 important person. 11 So that's the kernel; right? 12 A. Yes. 13 Q. And then there's this ring there, and 14 it has things like GUI, the graphical user 15 interface, and the file system; correct? 16 A. And other components of the system, 17 yes. 18 Q. Okay. And then there's this, which is 19 middleware, and then there's this, which is 20 applications, and what you're trying to 21 illustrate is that while some applications call 22 middleware, some call the operating system 23 directly. Is that what you meant to say? 24 A. That was the point with that, yes. 25 Q. Now, it's not your testimony, is it, 7196 1 sir, that the -- 2 MR. HOLLEY: Chris, we can take that 3 slide down. Thank you. 4 Q. It's not your testimony, is it, 5 Mr. Alepin, that the only thing that's the 6 operating system is that little circle in the 7 middle called the kernel, is it? 8 A. No. It's not. 9 And this was one of a couple of 10 different drawings that I made of operating 11 systems arranging them differently just to be 12 clear, but this is one to be sure, one of the 13 diagrams of an operating system. 14 Q. But you're not unhappy with this 15 diagram; right? 16 A. No. 17 Q. What else other than the graphical 18 user interface and the file system are in that 19 second ring around the kernel? 20 A. There can be access to other support 21 time services, for example, or the ability to 22 communicate with different processes, different 23 portions of your program to create -- I talked 24 about multiple -- multiprocessing and 25 multiprogramming. 7197 1 Multiprogramming, you have multiple 2 applications running concurrently. Well, 3 there's this notion that sometimes you can send 4 messages from one application to another, and 5 the operating system functions perform 6 interprocess communication, another kind of 7 service that's performed by the operating 8 system components. 9 Q. Is support for networking protocols in 10 the kernel ring or the next ring out? 11 A. It can depend on how the system is 12 architected, but support for networking 13 communications protocols exists in different 14 portions of the system. 15 The actual handling of the hardware 16 sits at a layer, at the device driver layer. 17 So the handling of communications 18 protocol information that is coming into the 19 computer is handled at the device driver level, 20 and then there is successive layers of software 21 on top which deal with the communications and 22 then the communications protocol content. 23 Q. Now, on direct examination I think I 24 understood you to say that the test about 25 whether something is or is not part of an 7198 1 operating system is whether it's essential to 2 the functioning of the computer. Did I 3 understand that correctly? 4 A. I think that I was referring to the 5 kernel at the time, not to the operating system 6 generally. I don't think I would have said 7 that. 8 Q. So there are many things that won't 9 cause the computer to freeze or crash, but 10 they're still part of the -- if you remove 11 them, but they're still part of the operating 12 system. Do you agree with that? 13 A. They're still part of operating 14 systems, yes. 15 Q. Are you aware, sir, of any operating 16 system for personal computers that doesn't have 17 a graphical user interface at that second ring 18 out? 19 A. There are operating systems that offer 20 multiple different graphical user interfaces. 21 Q. I'd like to show you, Mr. Alepin, 22 Slide Number 715. 23 Now, these are four operating systems 24 used on PCs; correct? Fedora Linux, Mac OS X, 25 OS/2 Warp 4, and Suse Linux; correct? 7199 1 MR. HOLLEY: Your Honor, may I have 2 permission to get this out of the way? 3 THE COURT: Sure. 4 A. Yes. 5 Q. And each of them have a graphical user 6 interface; correct? 7 A. Each of them is displaying a graphical 8 user interface here, yes. 9 Q. Now, you're also -- you testified 10 about an operating system called the BeOS from 11 Be; is that correct? 12 A. I'm looking at the -- I'm still 13 looking at the diagram there on the bottom, and 14 I'm wondering what the -- it looks to me like 15 there's Microsoft Office buttons down there. 16 Q. Where are you looking, sir? I gave my 17 copy to Mr. Lamb. 18 A. It's in the Fedora. 19 Q. You're familiar with a product called 20 Wine; correct? Wine? 21 A. Wine, yes. 22 Q. And you can run Microsoft Office on 23 Linux using Wine, can't you? 24 A. You can. I believe it's roughly 25 possible. 7200 1 Q. All right. I'd like to return back -- 2 A. Sorry. 3 Q. -- to my question, sir. 4 You testified on direct about the Be 5 operating system; right? 6 A. I did. 7 Q. I'd like to show you a slide that 8 Ms. Conlin used in her opening, number 760, of 9 the BeOS desktop. 10 Now, do you recognize this as the Be 11 user interface? 12 A. This is one instance of the BeOS. 13 Q. And I'd like to focus on the lower 14 left-hand corner. That's the built-in web 15 browser in the Be operating system called net 16 positive; is that right? 17 A. I think so, yes. 18 Q. And one of the things that Be decided 19 to use the built-in web browser to do was make 20 help information and documentation available to 21 users in HTML format; is that right? 22 A. If memory serves, that's correct. 23 MR. HOLLEY: Your Honor, may I move -- 24 sorry, up and down. 25 Q. I'm going back to this diagram that we 7201 1 have of the operating system. 2 Is the multiple virtual DOS manager in 3 Windows 3 in the second ring, the first ring, 4 or someplace else? 5 A. The -- I'm sorry, the multiple virtual 6 DOS manager in -- 7 Q. In Windows 3.1. 8 A. It's -- well, it's in a couple of 9 places. 10 Q. Can you tell me which places it is? 11 A. It's in the -- in the operating system 12 as well as in the -- inside Windows. 13 Q. And that's because it's your testimony 14 that Windows 3.1 is not an operating system; 15 correct? 16 A. It was not an -- not called an 17 operating system and required an operating 18 system to work. 19 Q. From a technological standpoint, based 20 on what you say is in an operating system, it's 21 your testimony that Windows 3.1 is not an 22 operating system; right? 23 A. That's correct. 24 Q. I'd like to show you, sir, a Slide 25 Number 747 from Prentice Hall textbook on 7202 1 personal computer operating systems, and I'd 2 like you to focus, if you would, sir, and we're 3 going to blow it up just because it's easier to 4 see that, this diagram in the center. 5 Is this consistent with your 6 understanding of the architecture of Windows 7 3.1? 8 A. The Windows -- you're referring to the 9 Windows core, is that the portion that -- the 10 GDI, the kernel and the user? 11 Q. Actually my question was a little 12 different, sir. 13 Is it consistent with your 14 understanding that what's below the line that 15 goes across horizontally is MS-DOS in the real 16 mode section and what's above the line that 17 says protected mode is Windows 3.1? 18 A. Those are the elements of Windows 3.1 19 that's -- that are above the line. I believe 20 that's correct, yes. 21 Q. One of which is the kernel; right? 22 A. That's the Windows kernel, that's 23 correct. 24 Q. So Windows has a kernel, Windows 3.1 25 has a kernel, and it also has a graphical user 7203 1 interface and it has this thing you testified 2 about which permits communication among 3 different virtual machines; correct? 4 A. That's correct. 5 Q. What does it use -- Windows 3.1, what 6 does it use DOS for? 7 A. It uses DOS for certain functions, 8 including getting the computer to begin 9 running. 10 Q. Have you ever read the book written by 11 one of the Plaintiffs' other technical experts, 12 Mr. Schulman, called Unauthorized Windows 95? 13 A. I read -- well, it's not a 14 start-to-finish kind of book. It's not a page 15 turner in that sense. It's -- you go to it for 16 specific information. 17 So perhaps over time I have managed to 18 read all of it, but never at one sitting. 19 Q. Now, you testified, I believe on 20 direct, sir, that Windows 95 was really just 21 MS-DOS and Windows 3 bundled together; right? 22 A. I think that's -- I think I said that 23 there was a bundling and tying in there, but it 24 was bundled together, certainly. 25 Q. I'd like to show you a part of 7204 1 Mr. Schulman's Unauthorized Windows 95 book. 2 This is Slide 777. 3 Now, here Mr. Schulman writes, the 4 reason, quite simply, is that Windows 95 is 5 already -- that's his emphasis -- a genuine 6 operating system and that its reliance upon the 7 real mode MS-DOS code does not change this. 8 Windows 95 can be a genuine operating system, 9 and still use DOS for some operations. 10 And that's his emphasis. 11 You have no basis to disagree with 12 that, do you? 13 A. I think that's -- I have no reason to 14 disagree with that. 15 MR. HOLLEY: Chris, that slide can 16 come down. Thank you. 17 Q. I'd now like to turn to a slightly 18 different topic. 19 THE COURT: I'm sorry. The witness 20 wants a break? 21 THE WITNESS: If you wouldn't mind. 22 THE COURT: He just turned to me and 23 requested a break. So we'll take a break for 24 ten minutes. 25 Remember the admonition previously 7205 1 given, and leave your notebooks here. 2 See you in ten minutes. 3 (A recess was taken from 9:52 a.m. 4 to 10:06 a.m.) 5 THE COURT: Mr. Holley, you may 6 continue, sir. 7 MR. HOLLEY: Thank you, Your Honor. 8 Q. Mr. Alepin, you would agree with me, 9 would you not, that the concept of what 10 constitutes an operating system is a subject of 11 debate in the industry? 12 A. There is ongoing debate about what 13 constitutes an operating system at the edges, 14 yes. 15 Q. And you have testified that there are 16 shades of gray in trying to decide what is and 17 is not part of an operating system; correct? 18 A. Are you referring to a specific -- 19 Q. I was, but first I'd like to ask 20 whether you have any memory of testifying that 21 there are shades of gray in trying to decide 22 what is and is not in the operating system? 23 A. I think that that's consistent with 24 the previous answer that there are at the edges 25 these debates, yes. 7206 1 Q. You will also agree that the concept 2 of what constitutes an operating system in 2007 3 is more expansive than the concept of what 4 constituted an operating system in 1985 in 5 relation to PCs; correct? 6 A. I think I would say that with respect 7 to operating system products, as opposed to 8 operating systems, at the end of the day 9 operating systems has -- operating systems have 10 to perform a number of functions, core 11 functions in 1985 and in 2007. 12 Q. And the number of functions performed 13 by a PC operating system in 2007 versus 1985 is 14 much larger; correct? 15 A. With respect to personal computer 16 operating systems? 17 Q. Yes, sir. 18 A. I think that the personal computer 19 operating systems today perform more of the 20 functions you would expect to see in operating 21 systems. 22 Q. So what MS-DOS did in 1985 relative to 23 what the IBM mainframe operating system did in 24 1985 was a very small fraction; correct? 25 A. It provided memory management, and 7207 1 IBM's mainframe operating system provided 2 memory management. 3 There's a significant difference in 4 the quality of the two of them back in 1985, 5 but it -- so there -- the DOS operating system 6 performed several of the functions that the 7 IBM's mainframe system did, but didn't do them 8 nearly as well or as sophisticated. 9 Q. And my question was slightly 10 different, sir. 11 You would agree with me, would you 12 not, that PC operating systems have been 13 playing catch-up to mainframe operating systems 14 in the period from 1985 to today? 15 A. In certain areas, that's true, yes. 16 Q. Now, you testified on direct about the 17 migration of new functionality in operating 18 systems over time. Do you remember that? 19 A. Into operating systems products or -- 20 is that the -- 21 Q. Well, maybe we better get established 22 what we're talking about. 23 When you say operating system product, 24 how do you distinguish that from an operating 25 system? 7208 1 A. Well, an operating system product like 2 Windows includes many things in the package, 3 including games, primitive word processor, 4 primitive word application. It includes 5 systems support utilities as well as the 6 operating system and other software componentry 7 in the box, and that's an operating system 8 product -- 9 Q. Okay, and -- sorry. 10 A. Sorry -- to me. 11 Q. And if we drew a then diagram of an 12 operating system product as the big circle and 13 an operating system, as you use that term, as 14 the little circle, what's outside the operating 15 system? 16 A. All those things that I just 17 described, systems support utilities and those 18 starter applications. The tutorials, the other 19 pieces that are not the core of the operating 20 system functions that we would understand as 21 being an operating system, memory management 22 and that kind of stuff. 23 MR. HOLLEY: Your Honor, may I go draw 24 the diagram I just described? 25 THE COURT: Sure. 7209 1 MR. HOLLEY: Thank you. 2 Q. We're going to change colors for 3 variety. 4 So this is that then diagram I 5 described? 6 A. Excuse me, Mr. Holley, could you -- 7 Q. I'm sorry, Mr. Alepin. 8 A. That's better. Thank you. 9 Q. I forgot and did the same thing again. 10 I'm sorry. 11 So this is -- okay. Now, I would like 12 to focus for purposes of my question about just 13 the inner circle, the operating system. 14 You would agree with me that since the 15 mid 1980s, the operating system as you describe 16 it for PCs has taken on more and more and more 17 functions? 18 A. Yes. 19 Q. I'd like to show you Slide 756. 20 Now, this is your trial testimony, 21 sir. 22 You say that what happened over time 23 was that this functionality existed in each 24 application -- excuse me -- this functionality 25 that existed in each application became 7210 1 subroutine first so that different applications 2 could use the same subroutines. They were 3 separable from the application. 4 Later that became a single operating 5 system that allowed multiple applications to 6 use it. 7 And that is a process that you're 8 quite familiar with, correct, where some 9 functions started in an application, then it 10 migrated into some sort of, I guess we might 11 call it middleware or some sort of subroutines 12 that were independent from the applications, 13 and then the functionality migrated down into 14 the operating system so that multiple 15 applications could use it; correct? 16 MR. LAMB: Objection to the extent the 17 document reads they were separate from the 18 application, not separable from the 19 application. 20 MR. HOLLEY: I accept that correction. 21 I didn't mean to suggest any different. 22 THE COURT: Very well. 23 A. Actually, I was talking about the 24 again genesis of the operating system. So how 25 an operating system, a modern operating system 7211 1 came into being starting from the original 2 application in a world where no operating 3 systems exist, how that came to pass, how we 4 came to create operating systems over time. 5 Q. Okay. I accept that, but the process 6 has continued, has it not? 7 So, for example, the developers of 8 Microsoft Excel invented the concept of tool 9 bars and then that tool bar functionality 10 migrated into Windows so that everybody can use 11 it; is that right? 12 A. It migrated into the Windows product 13 operating system product, that's correct. 14 Q. Well, it migrated into the second 15 circle on your diagram -- 16 MR. HOLLEY: Your Honor, may I go to 17 the chart? 18 THE COURT: Sure. 19 MR. HOLLEY: Thank you. 20 A. It's -- excuse me. I'm afraid you're 21 going to have to do that again. 22 Q. I'm sorry. 23 MR. TULCHIN: My apologies. I moved 24 it so that the jury could see the screen 25 better. 7212 1 Q. We're the Keystone cops here, 2 Mr. Tulchin and I. 3 So the functionality of tool bars 4 migrated from Excel into the graphical user 5 interface components of Windows that were made 6 available through APIs to application 7 developers; correct? 8 A. That's a formulation I can agree with, 9 yes. 10 Q. Now, one of the things that used to be 11 as recently as 1992 separate from an operating 12 system was support for -- excuse me -- for 13 communication protocols like TCP, IP and FTP; 14 correct? 15 A. Support for those protocols was not 16 present in Microsoft's Windows product. 17 Q. And you believe that it was useful and 18 good for that functionality to be included in 19 Windows; correct? 20 A. Useful and good? It's certainly 21 useful to have communications protocol software 22 available to users of a computer system, yes, 23 absolutely. 24 Q. Okay. Well, more specifically, do you 25 recall being asked at your deposition in this 7213 1 case -- and I'm happy to give you a copy if 2 that would be helpful. 3 MR. HOLLEY: Your Honor, may I 4 approach the witness? 5 THE COURT: Uh-huh. 6 Q. And I've turned to the page I'm going 7 to talk about. 8 At 167 -- just bear with me one second 9 till I find it. 10 Actually, it starts on page 166, 11 Mr. Alepin. 12 I asked you the question: An example 13 of what I'm talking about would be the TCP/IP 14 stack. And stack is sort of slang for the 15 software that supports communications 16 protocols; is that right? 17 A. 166? 18 Q. Yes, sir, I'm sorry. 19 Maybe I should give you an opportunity 20 to make sure we're on the same page. 21 A. Thank you. 22 Q. So what I'm reading from is 166, line 23 15. Are you with me, sir? 24 A. I am now, yes. 25 Q. Okay. And I asked you the question: 7214 1 An example of what I'm talking about would be 2 TCP, IP stacks. 3 And just for the jury's benefit, a 4 stack is sort of slang for talking about 5 software code that supports networking 6 protocols; is that fair? 7 A. That's -- well, it's actually the 8 model of a communications protocols, and then 9 software implements that model in a stacked 10 layer, that's correct. 11 Q. Which until 1995 were offered 12 separately for a price sometimes exceeding the 13 price of Windows and are now part of Windows. 14 You don't regard that as a bad thing, 15 right, that integration of TCP/IP support into 16 operating systems like the Mac OS, Windows, and 17 Linux? 18 And you say, I don't know what bad 19 means, and I said bad to you. 20 Then you answered bad to me. 21 And I said, you're the only person who 22 can answer that question. 23 And then you gave this answer, 24 Mr. Alepin. 25 Well, you know, IBM's largest 7215 1 mainframe computer system, which has had 2 telecommunications capabilities in it since 3 1966 or so, provides TCP/IP stack as a separate 4 product. There's no necessity for integration. 5 The presence of that low-level functionality 6 is -- has been useful and good for the Windows 7 platform. 8 And you continue to believe that is 9 true, sir, right? 10 That the presence of low-level TCP/IP 11 support in Windows has been, in your words, 12 useful and good for the Windows platform? 13 A. To the extent that it's within this, 14 yes, that's what I -- I think I was making the 15 distinction about whether it needed to be part 16 of Windows, but certainly to have it available, 17 to have a communications protocol stack 18 available for users of Windows computer systems 19 is a -- is a benefit to those people who need 20 to use communications. 21 Q. But I'd like to focus on the words you 22 chose, sir. 23 You said the presence of that 24 low-level functionality is -- has been useful 25 and good for the Windows platform, and you 7216 1 don't disagree with that, do you? 2 A. I'm not saying in Windows. I'm saying 3 the presence of that low-level functionality 4 has been useful. Not in Windows, but to 5 Windows and to the Windows platform. 6 Q. Do you think that it was better in the 7 era when somebody had to pay $199.95 to FTP 8 software for a protocol stack than it is now 9 when it's free as part of Windows? 10 MR. LAMB: Objection. Lacks 11 foundation. 12 THE COURT: Overruled. You may 13 answer. 14 A. When the Winsock group arrived at a 15 proposed standard for the use of -- so it's not 16 sufficient to just provide the communications 17 protocol stack. You have to be able to connect 18 application programs to that stack when they 19 develop the standard. 20 It's my recollection that the prices 21 for this kind of software went down very 22 substantially. And, in fact, Netscape's 23 Navigator software did not require users to 24 spend $199 in order to get a communications 25 protocol stack for Windows 3.1 because Windows 7217 1 3.1 did not include a TCP/IP stack software in 2 it. 3 Q. But Windows 95 did; right? 4 A. Windows 95 included a TCP/IP 5 communications stack. 6 Q. Now, it is your professional opinion 7 based on your years of experience in the 8 software industry that the integration of new 9 functionality into operating systems -- 10 MR. HOLLEY: Your Honor, I hate to do 11 this, but can I go back and flip my chart? 12 THE COURT: Sure. 13 Q. By which I mean the inner circle on 14 the diagram, not the big circle, but the 15 integration of functionality into operating 16 systems is a good thing for consumers? 17 A. The ability to support multiple 18 microprocessors simultaneously is a good thing 19 insofar as it permits users who have those 20 kinds of computers to use that capability. 21 Q. All right, Mr. Alepin. 22 You remember, do you not, sir, giving 23 a deposition in the MDL case on January 21 and 24 22 of 2003; correct? 25 A. I remember having a deposition on or 7218 1 about that time, yes. 2 Q. And I'm not expecting you to have 3 total recall of all these pages so I'd like to, 4 if I could with the Court's permission, give 5 you a copy of this. 6 And I'm going to look, sir, at page 7 365 of that transcript starting on line 25. 8 A. This is Volume II dated -- this would 9 be the second day? 10 Q. Yes, Mr. Alepin, it took -- I think 11 the second volume starts like page 200 or 12 something? 13 A. 220, I think. 14 Q. Page 365 is indeed in the second 15 volume. 16 A. 365? 17 Q. Yes, sir. 18 A. All right. 19 Q. And I'm interested in the question 20 that my colleague Mr. Steinberg asked you 21 starting on the very last line of that page, 22 and I want to be sure you're there before we -- 23 A. I am, I think. 24 Q. So do you recall Mr. Steinberg asking 25 you the following question: 7219 1 Okay. Now, throughout this period of 2 time, operating systems manufacturers, whether 3 it was DRI or Microsoft or Apple, they were 4 adding more and more functionality into the 5 operating system; correct? Let's say 1989 to 6 1994. 7 Your answer is yes. 8 Mr. Steinberg asks you: And that was 9 a good thing for consumers; right? 10 And your answer was that's correct. 11 A. Yes. 12 Q. And you don't disagree with that 13 testimony, do you, sir? 14 A. No, I don't. 15 Q. And you don't disagree with this 16 proposition despite the fact that somebody who 17 used to sell a functionality that gets 18 integrated into Windows might lose business as 19 a consequence of that integration? 20 A. I'm sorry -- 21 MR. LAMB: Objection. Outside the 22 scope. 23 THE COURT: Overruled. You may 24 answer. 25 A. Excuse me. Could I have you ask the 7220 1 question again? 2 Q. Sure. 3 You don't think that indifferently 4 about whether the integration of new 5 functionality into PC operating systems is good 6 for consumers just because as a result of that 7 integration somebody who used to offer the 8 functionality, they got integrated as a 9 separate product might sell fewer copies as a 10 result? 11 A. No. Not just because of that, no. 12 Q. Now, in the course of your work on 13 this case in forming the opinions that you 14 delivered, did you have occasion to look at 15 Apple's OS X Tiger operating system? 16 A. I use it on one of my computers. 17 Q. So you're quite familiar with it? 18 A. Relative term, but yes, I use it. 19 Q. Now, among the many features that are 20 part of OS X Tiger are built-in faxing 21 capability; correct? 22 A. Yes, I think that's correct. 23 Q. And I'd like to show you Slide Number 24 781. This is a part of the Apple.com website 25 promoting OS X Tiger, and one of the things 7221 1 that Apple promotes, is it not, is that OS X 2 Tiger has faxing built in? 3 A. I see that. 4 Q. And another thing that's part of OS X 5 Tiger is a built-in address book that every 6 application running on the system can call; 7 correct? 8 A. Yes, I think that's the case. 9 Q. I'd like to take a look at Slide 782. 10 THE COURT: Can the jury see the 11 screen? 12 MR. HOLLEY: I'm sorry, Your Honor. 13 Excuse me. 14 Mr. Tulchin is falling down on the 15 job. He's my moving man. 16 MR. TULCHIN: I need to have my 17 functionality called. 18 Q. I'm sorry for the interruption, 19 Mr. Alepin. 20 Slide 782 shows that Mac OS X Tiger 21 has an address book, and Apple says it worked 22 seamlessly across the entire system; is that 23 right? 24 A. That's correct. 25 Q. And another feature of OS X Tiger from 7222 1 Apple is a built-in web browser; is that right, 2 called Safari now? 3 A. There is a bundled browser called 4 Safari. There was a bundled browser called 5 Internet Explorer for the Mac, yes. 6 Q. Well, isn't it more than bundled? 7 Isn't it technologically tied in the way that 8 you used that term? 9 A. In the way that I used that term, I 10 wouldn't say so, no. 11 Q. Have you studied all the 12 cross-dependencies that exist between the 13 Safari web browser and every other part of 14 OS X Tiger? 15 A. I've not studied all of those 16 dependencies, no. 17 Q. Okay. Let's look at Slide 783. 18 Now, this is another part of the Apple 19 website, and it promotes OS X Tiger as the 20 world's most advanced operating system; 21 correct? 22 A. I see that. 23 Q. Okay. And one of the things that 24 Apple promotes as an aspect of why OS X Tiger 25 is the world's most advanced operating system 7223 1 is that it has, as Apple says, cutting-edge 2 Internet applications that let you experience 3 science fiction as reality today. 4 You see that, do you not, sir? 5 A. I do. 6 Q. And one of the things that Apple says 7 that you can do with Safari is engage in 8 personal videoconferencing that looks as 9 elegant as the boardroom. 10 Do you see that, sir? That's the 11 second bullet point. 12 A. I do. 13 Q. Do you know what other components of 14 Mac OS X Tiger work with Safari to provide that 15 videoconferencing capability? 16 A. That would be the communications 17 protocol within the Mac OS product. 18 Q. So there's a cross-dependency between 19 Safari and those networking protocol stacks in 20 OS X Tiger; correct? 21 A. Well, there is a dependency. I'm not 22 sure cross-dependency, if it means that it's 23 transitive as opposed to intransitive. Either 24 one way -- the communications stack doesn't 25 depend on Safari, but Safari would depend on 7224 1 the communications stack. 2 That's a subtlety, perhaps, that -- it 3 was unnecessary. 4 Q. I appreciate the clarification, but 5 it's true that if you pulled the communications 6 stack out of Mac OS X Tiger, the 7 videoconferencing capability of Safari would 8 stop working; right? 9 A. Until you substituted or did something 10 else, yes. If you took it out, it would not 11 work. 12 Q. Now, I'd like to refer you again, sir, 13 to Mr. Schulman's book. 14 And I appreciate that you said you 15 didn't read it cover to cover like a spy novel, 16 but did you have occasion to consider what 17 Mr. Schulman had to say about the process of 18 integrating new functionality into PC operating 19 systems over time? 20 A. Without seeing the specific reference, 21 I'm not sure I have considered what Mr. 22 Schulman has said. And he has written rather 23 extensively on these kinds of subjects. 24 Q. I'm sorry. You have or have not? 25 A. I may have, but without seeing 7225 1 something to jog my memory about a specific 2 instance. Because he has, in fact, written 3 many different pieces. It would be hard to 4 say. 5 Q. Okay. Well, let's look at page 11 of 6 his book, which is Slide Number 778. 7 Now, Mr. Schulman writes up at the 8 top, when Microsoft put disk compression into 9 MS-DOS 6 -- and I'd like to just pause here for 10 one moment. 11 The first company to put disk 12 compression in an operating system was DRI, 13 right, not Microsoft? 14 A. Personal computer operating system, I 15 think that's DRI. I think that's correct, yes. 16 Q. So they -- DRI was integrating new 17 functionality into DR-DOS sometimes before 18 Microsoft was; right? 19 A. Indeed, yes. 20 Q. So when Microsoft put disk compression 21 into MS-DOS 6, leading to nearly immediate 22 layoffs at Stac -- and now Stac was an 23 independent company that offered disk 24 compression utilities; correct? 25 A. It offered a disk compression -- well, 7226 1 utilities as well as a disk compression -- a 2 compressed disk file system device driver. 3 So utilities that enabled you to 4 manage a disk that you had used that you were 5 going to access that the contents of which were 6 compressed. 7 Q. And one of the things that the stacker 8 product did was compress the files on your 9 disk; correct? 10 A. That's -- yes, that's correct. 11 Q. Okay. So sorry for the interruption, 12 but I want to make sure we understand the terms 13 we're talking about here. 14 So when Microsoft put disk compression 15 into MS-DOS 6 leading to nearly immediate 16 layoffs at Stac, the response of most 17 developers, myself included, was heck, disk 18 compression belongs in the OS. 19 And he means operating system, right, 20 there, OS? 21 A. I'm not sure whether he means 22 operating system product or operating system, 23 but he's talking about operating system there 24 in the OS, yes. 25 Q. Okay. And then he goes on and says, 7227 1 Stac had a nice ride for a while. Let them 2 find another line of business. Them's the 3 brakes. 4 So Mr. Schulman basically said it's 5 tough luck for Stac; right? 6 A. That sounds like what Mr. Schulman is 7 saying. 8 Q. And then he goes on on this page at 9 the bottom, he says, if an ISV makes an 10 application or utility product that it thinks 11 most PC users should buy, then -- almost by 12 definition -- it seems that product's 13 functionality belongs as part of the operating 14 system. 15 So Mr. Schulman is saying that if 16 something becomes so broadly useful that 17 everybody ought to have it, it belongs in the 18 operating system; correct? 19 A. That's what Mr. Schulman is writing. 20 Q. Now, did you have occasion to look at 21 what Plaintiffs' counsel said in opening in 22 this case about the benefits that software 23 developers get from including functionality in 24 PC operating systems? 25 A. I don't -- I read some portions of the 7228 1 opening, but it -- I did not perhaps focus on 2 that particular passage without being able to 3 see it again. 4 Q. Okay. Well, let's take a look at the 5 transcript for the trial of the 7th of 6 December, Pearl Harbor Day of last year, and 7 this is page 3468, lines 1 to 24. 8 Now, what Plaintiffs' counsel said to 9 the jury in opening was that APIs are a great 10 help to ISVs. 11 And ISV is a very common term for 12 talking about software developers, right, 13 independent software vendor? 14 A. That's the term I used. It's a common 15 term, yes. 16 Q. APIs are a great help to ISVs because 17 it means that they can focus on the special 18 features of their application rather than 19 spending time reinventing the wheel, so to 20 speak, by writing the same functions that 21 everybody else has to write. 22 For example, Windows manages the 23 windows. 24 Meaning the windows on the screen; 25 right? 7229 1 It provides you all kinds of APIs for 2 popping up the windows and controlling their 3 size and moving them around on the desktop and 4 so forth. 5 An applications developer, then, 6 doesn't have to write the thousands of lines of 7 code that it takes to manage the windows needed 8 to use -- needed to be used by that 9 application. 10 Instead, he can write one or two 11 lines, call that API, and then that API will do 12 those functions with the windows. 13 And I think, frankly, that ought to be 14 a lower case "w". 15 Do you agree with me we're still 16 talking about moving the windows around? 17 A. Right. 18 Q. There are thousands, many thousands of 19 APIs in Windows. 20 Now, you a