Noted prof a key witness in Microsoft trial

David Farber testifed last week as a witness for the government. In his 40 years in the computer field, Computer and Information Science Professor David Farber has designed several operating systems and helped pioneer the development of the Internet. But nothing prepared him for the task of facing down a well-paid attorney for computer giant Microsoft with the entire business and computing world watching -- as he did last Tuesday and Wednesday. Farber, 64, is one of 12 witnesses for the Department of Justice in its anti-trust law suit against Microsoft, maker of the popular Windows operating system and Office applications suite. The DOJ's case hinges on whether Microsoft illegally tied its Windows 98 -- a product which has near-monopoly control over the operating system market -- to its Internet Explorer World Wide Web browser in order to capture the browser market and whether this combination, if it occurred, benefited customers. Farber's testimony, which addressed both questions, was considered key to the government's case. "If you have a position of a monopoly with product number one, it's a violation of the law to require customers to buy a second product," explained George Washington University Law School Professor William Kovacic, an anti-trust expert. Farber was asked to establish that Internet Explorer and Windows 98 are two distinct programs that did not have to be designed as one. Microsoft contends that the two programs are an integrated whole, not two separate programs that were illegally linked as a marketing ploy. The company also says that the combination of the two is a boon to customers because "it offers a powerful and easy-to-use personal computing experience at a great price," according to a statement released by the company last week in response to Farber's testimony. The statement also said that Farber's testimony is merely his own opinion about how to build an operating system --Ean opinion which "refuses to recognize the ongoing evolution of operating systems." But Farber's job as a witness was made a whole lot easier on the second day of his testimony when the DOJ introduced the Third Edition of the Microsoft Press Computer Dictionary into evidence. The dictionary defines the company's Internet Explorer as a "Web browser." A Web browser is defined, in turn, as a "client application," or a separate program from the operating system. Additionally, Kovacic explained, in anti-trust cases product tying is allowed if the company can establish that combination benefits the consumer. Farber was also asked to address that point. "When I go to a grocery store, if I am given pre-packaged bags of stuff and all I really want is one can, but I have to carry home this 10-lb. bag and buy it because that's the way the grocery store sells it to me, I'm going to be upset," he testified. "You know, it's good exercise but it's not very efficient for me to carry this bag home and to pay for it when all I really want it one little can of goods. While Farber appeared relaxed on the stand, he said he came home exhausted. Farber attributed the fatigue to the stress of realizing the importance of his testimony. Indeed the decision to testify wasn't easy for Farber, who explained that several colleagues urged him not to put his academic reputation on the line by testifying. "When you do something like this you are staking your academic reputation, and more importantly the case, on your testimony," he said. "It's like putting yourself in front of a steamroller." Ultimately, Farber said he believed in what the Justice Department was trying to do. "I may sound corny but the only way a society like ours can exist is if people stick their necks out," he said. "Also, to put it bluntly, I am a chaired full professor. What's going to happen to me?" Colleague Mitchell Marcus, chairperson of Penn's CIS department, said he believed Farber was the logical choice as an expert witness. "Dave is extremely prominent and has a lot of credibility, and is extremely knowledgeable, so if anybody can really talk about these kind of issues in a reasonable way it was him," he said. At times, the proceedings did grow somewhat unpleasant. In particular, Microsoft's lawyers tried to paint Farber -- who admitted a lack of familiarity with the Windows operating system -- as out of touch. Microsoft attorney Steven Holley questioned Farber sharply about his experience, particularly in the area of operating systems. Farber developed several operating systems in the 1960s and 1970s, but his recent work has largely ignored operating systems for personal computers. But Holley and Farber did agree on one thing -- it is very difficult to remove Internet Explorer from computers running Windows 98. "I installed Windows 98 and I tried to install Netscape and I tried to de-install [Internet Explorer]," Farber said. "I found that it was very difficult for me -- even with my expertise -- without a lot of study. No matter what I did in Netscape, periodically [Internet Explorer] would come up and bite me and say 'look I'm here'." While Holley tried to use this as proof that Windows 98 and the Web browser are really one product, Farber tried to explain that the linkage took away consumer choice. But Farber maintains that he does not bear any ill will toward Microsoft, explaining that he was not asked to testify about whether the company had violated any laws. "I never said the company deliberately put the two together," he explained. "I said here's the two and I had difficulty unpasting them. I would have put them together differently and if I can do it, they can do it." Farber said he has heard only positive response to his testimony from the Justice Department and his colleagues. Spokespersons for the Justice Department said they could not evaluate his testimony yesterday. Kovacic said he believed Farber was an effective witness. But will it be enough to win a tough case for the Justice Department? Kovacic says probably not. An appellate court this summer in Unites States v. Microsoft ruled that Microsoft could tie two products if the combined product benefited the customer as defined by two conditions: Microsoft was able to put the products together in a more efficient way than a consumer could and combining the two advances the state of the the technology. The ruling, which Kovacic called "very pro-Microsoft," will make it difficult for the Justice Department to prove that Microsoft has not given the customer some benefit by combining the two products. "I fear not even Professor Farber's testimony will help the government over that hurdle," Kovacic said. "But through his testimony the government took its best shot."

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