 To my immediate left, Joe Nocera, columnist for the New York Times and for Fortune magazine, to his left, Rajiv Chandra Sakron, who covered the trial for the Washington Post and went on to many other positions in the Post. I spent a lot of time in Iraq, wrote a fabulous, fairly amazing book about Iraq and the green zone there as now national editor at the Washington Post. To his left, Mark Murray, who as I said was Microsoft's chief spokesperson during the trial and is now sort of chief of all things, public relations and global relations for Microsoft. And finally, John Wilkie, one of the most dogged and persistent reporters during the trial and still doing great work at the Wall Street Journal. Gentlemen. Hi, I'm Joe Nocera and we do understand that when you have a panel of journalists after economists, professors, lawyers, we're the entertainment. We get it. So we will try to make our remarks moderately brief, have a little more Q&A time and just all of us are going to make a few observations. We all have different, I mean Rajiv really hasn't covered the trial or hasn't covered business since that trial. I cover business all the time, pretty much the same way I did. John Wilkie still writes about antitrust and still writes about justice department issues and still breaks news. And Mark Murray still picks up the phone and says it's another great day for Microsoft. No, he doesn't. He really doesn't. He took my talking point. When Brad Smith was talking this morning, I just want to make three or four observations, when Brad Smith was talking this morning, I thought of another person that I wrote about a couple of years ago named Steve Parish who worked for Altria, the parent company of Philip Morris. And what brought it to mind was the idea that at that point in Microsoft's life, it was an incredibly insular place where people only talk to each other and they viewed everybody on the outside as either idiots or enemies. And what happens when you have, and so when a company gets traumatized the way the tobacco industry was 10 years ago when it went through its travails in the mid-90s and the way Microsoft was traumatized in the Microsoft trial, it forces companies to stop just talking to each other and to start, it forces them. They have no choice. They have to sit down and listen to other people and they can't just talk at them. And one of the things I felt all during the Microsoft trial is that they would talk at them, at us, the press, but they would only really listen to each other. And that has changed. That is one thing that I think has profoundly changed at Microsoft is that Brad said that the trial taught Microsoft how to deal with the press, but I actually think it taught Microsoft how to deal with society. And taught it to realize that just because you have a bunch of really smart engineers and a bunch of really smart business people, that doesn't mean you're smart about, you're right about every aspect of society. And it doesn't mean you have to maybe do things that give society more comfort. So that's point number one. Point number two, I think a lot now about what I really saw when I was there. And I actually think I've learned a lot today about that. Journalists need characters. And David was a great character. And the Titan called Microsoft was another great character. And it really, the press, it was so easy for the press to characterize it as a fight between good and evil or a fight between a guy who really knew how to kill these guys. And another team that all they knew how to do was say, you know, hit me again, hit me again. That's what, and you'd have all these moments in the trial where David just, the person who asked about what are your most memorable moments, well, I think for us in the press that the most memorable moment was when Ed had discovered that the video of the Alchin screens had been, you know, basically done by the marketing department and they weren't what they purported to be. And it was a day, it was as close to a Perry Mason moment as you're going to have in an antitrust trial. I mean, it's just like, how can this be happening? And we wrote about it as drama. And I have thought a lot afterwards about, you know, what was real and what was not real and what was show and what was, you know, just pure theatrics. And I think a lot of what David said today spoke to that about the issues of how it also becomes a morality play and how that factors in. My third comment of four, I will say, is that why in the world did the judge ever talk to the press? I will never understand this tonight. I just, it's inexplicable. I'd never covered a trial like this before. I hope John talks about this a little bit because I just was stunned to discover afterwards that three sets of reporters were having back channel conversations with Judge Jackson while this was going on. And then, of course, it all came out and it certainly wasn't the hardly, the only or the most important reason the Court of Appeals removed them and slapped them around a little. But it's certainly one reason. Finally, see, I told you we're going fast here. As somebody who's written a lot about internet and computing over the last decade, I am struck by how much of Microsoft's arguments which we in the press did not take seriously at the time have turned out to be true. One of the things they used to say was you don't know where innovation is going to come from and we would laugh. And they would say there's this company called Red Hat that has this thing called Linux. It's going to be a threat. It's going to be a threat. And we would say, ah, come on, get real. And, you know, Google, this is the 10th anniversary of Google. Google was founded when the Microsoft trial was going on. And who knew that that was going to be a great source of innovation and was going to diminish the importance and power of operating systems? We, you know, part of the problem, part of the problem of life, really, is that it's whatever cocoon you happen to be in, whatever era you happen to be in, whatever you have to see in front of you, whatever you see in front of you tends to be what you think will always be. And it's not. And, you know, I do think the trial changed the way Microsoft operates dramatically and I think the trial also allowed, I mean, a lot of competition and I will end with this anecdote, which I think speaks to this a little bit. A couple of years ago, Bill Gates came to the New York Times to the editorial bureau and the publisher Arthur Schulzberger was there and all the top editors were there and I was one of the few times they've ever let me in there. And you can see why they don't. And somebody said to Gates, and it was very interesting. I mean, he was talking mostly about his foundation but then he talked a little bit about business and when he talked about business, boy, you could see he was just, he was comfortable with it in a way he wasn't in talking about his foundation. So there were laughter and jokes and somebody said, so are you going to do to Google what you did to Netscape? And he said, nah, we'll find another way. Rajiv? No, it's Wilkie. John, you're next. I first started becoming aware of Microsoft and its power covering Lotus and Borland and some other companies that aren't around anymore in Boston. And I moved to Washington and started to become aware of this thing called the browser, which was being called the on-ramp or gateway to the internet. And I met, as the preparations for the case started to wind up, Mark Andreessen, who invented it or... That's what he would say. And he said that Microsoft had tried to shut him down, had threatened them and told him that he could have part of the market but that they'd take the rest. That was his claim. He said, I half expected to find a bloody computer monitor in my bed and thus began the morality play. Somewhere along there, David Boyce got hired as special counsel and the trial began and I think took on an extraordinary life of its own. Microsoft made, scored again and again points that were being ignored. David and the government team kept coming around, coming back to credibility and at the end of the day when we all stood out on the courthouse steps, it seemed as if the government won the day over and over again. We ended up with a victory for the United States, upheld by a unanimous appeals court, a very conservative unanimous appeals court. A new administration came in and I had an experience that I'll never forget after that new administration came in. I heard that Steve Ballmer was visiting Dick Cheney in August of 2001. This was a secret meeting. It wasn't on his schedule. It wasn't on the vice president's schedule. It wasn't announced by Microsoft. A friend told me to be there at an appointed moment and sure enough there was Steve Ballmer walking out of the West Wing of the White House after having secretly met with Dick Cheney. At the time we didn't know how powerful Cheney would become or was and I have always wondered what happened in that meeting. I started working really hard on trying to figure out what this new administration would do with this case. It took me a few weeks but I had a story a few weeks later that said that Microsoft had entered secret settlement talks with the government and the story was published on the morning of September 11th and no one cared. Judge Collar Catteller very strangely said that it was some sort of patriotic urgency to settle the case now that the terrorists had attacked us somehow. And so the settlement emerged. At the time it seemed to a lot of people commenting on the case and following it to be a slap on the wrist. I don't know what kind of effect. I'm not really I'm not sure I can say what kind of effect it's had but the marketplace certainly had its own effect because just a few days ago I saw a Microsoft call search the gateway to the internet and we hired and the United States hired Sandy Litvec as special prosecutor in the Google case. In the Google matter which may or may not be a case. So there's a weird symmetry there over these past 10 years and I've always wondered what happened on that August day. We can come back in discussion about Sporkin and Jackson and Joe I'd like to answer your question when we open up. Well the talk about unintended consequences I never thought that all those months spent covering the Microsoft case would lead me to flee the country for multiple war zones but so be it. This thing did all different things to different people but it's a great honor to be here with both Joe and John and I've got to say when the history of this continues to be written it's really their work in different ways that I think we will all continue to draw upon when it comes to looking at press accounts from this. John just because of the scoops that he had in the lead up to the case being filed during the case and as recently as this past week on an unrelated matter but just as sort of the preeminent antitrust reporter in this country. And what Joe did that was such a stroke of genius was to write about this as a diarist, as a sort of a sketcher and to tell a story because this was fundamentally a hell of a tale unfolding in a federal courtroom in Washington D.C. with incredibly compelling characters on both sides and an awful lot at stake and there was the drumbeat of daily coverage that focused on as David mentioned earlier often did focus on sort of the gotcha moment of the day but when you go back and you read Joe's sort of sketches or diary pieces for fortune over the course of this it is in some ways gets better with the passage of time I think one of the best ways to sort of come back at this material and you know it's not that many cases or let's even expand beyond cases of law but that many sort of stories we in the press score get to cover where you might find yourself on a panel ten years later with somebody you know you were sparring with over the phone day in day out and just sort of see people on both sides of the case having come together I think it really speaks to something very unique about this and in our sort of very politically charged environment not just in the world of Washington politics but in so many things in this country today to see that people on both sides of this case can sort of come together ten years later but even during the trial there was this sort of remarkable spirit of Bonomy that existed you know it was in some ways reminded me and I don't mean to make too much light of this of the old Warner Brothers cartoon where the sheep and the wolf sort of clock in and they spend all day chasing each other then the whistle blows and they clock out and you know some of you may know but on Thursday nights you know we in the press corps because we have a particular affinity for alcohol would generally gather at a at a bar or a restaurant it started out initially at the Capitol Grill and then when we you know started to get called on our expense accounts it sort of you know degenerated from there went to some sort of you know low grade steakhouse in D.C. but we were we were invariably joined by by folks on both sides David would sometimes come as well as other officials on the government side Mark and his colleague Vivek Varma would be there and and it was it was just you don't see that these days in Washington and even in that even ten years ago it was remarkably rare and I think it was just but you know for for for me and I think from for for other colleagues in the press what part of what made this unique a couple of other points you know when I think back to the start of this it's it's it's remarkable just how you know I think uninformed most of us in the press corps were you know you had some reporters who were real specialists in the law and had covered antitrust issues you had many other reporters who would come with some sort of technology background and you had others who were just sort of general assignment court reporters and everybody was sort of trying to bone up in their own way but you know I think it it it still speaks to the fact that that many of us in in the news business are fundamentally generalists and there was there was an awful lot that was sort of transpiring at any given day that that was sort of rightly going over our heads and and that sort of segues into you know the way the government you know put on its case and and not to be sort of duplicative of what David was saying earlier and I clear you know I obviously won't be as articulate as he was but the way that you know the government you know framed its case gave us in many ways a very compelling narrative and then those those sorts of Perry Mason moments made for made for great stories made for you know got this got got got a got an antitrust trial on TV every now and again I mean go figure and and in that approach to to not just sort of trying to play to to sort of spin out this morality play before a judge but also to the press and and that's what made this case in many ways something that that editors you know allowed reporters to cover day in day out you know yes there was there was there was a degree of fundamental importance to this but it was such a damn good story from the very beginning from from that the clips of the videotaped depositions of Bill Gates on that no editor in their right mind would have pulled a reporter from that courtroom and it just speaks a lot to to the to the way the both you know the government in this case particularly put on its case and how it how it sort of drove that that narrative through and you know think thinking back to these sorts of specific moments the Alchin video the the Gates deposition and of course you know the emails my my memory is hazy on this particular point but my my most memorable moment particularly in terms of of of of David in the courtroom was was was a case and I can't I can't sort of cite the specific witness but he he the Microsoft witness had said something that seemed to be contrary to something that he had read in an email and he just sort of standing back like a like a leopard waiting to pounce sort of not even you know in in in in the in the in the chair reserved for the the government counsel and whispered something to to somebody on Phil's team and you guys went through these boxes every day you come in with these big bankers boxes with documents he found the email and you know there it was and and for those of us you know who are not experts in the law sitting there in the in the gallery you know it was it was you know these were the sorts of moments that kept us sort of coming back and writing about this case in any event I will stop blathering on and turn it over to tomorrow well it is really an honor to be sitting here with these guys I mean the there's there's a special bond that you build even if you are you know sort of working and you know arguing back and forth sometimes and you know these guys are some of the most important figures in my professional life so it's really great to be sitting here and I I want to thank Phil and the Berkman Center for inviting Microsoft to this and allowing us to participate several speakers have described how they came to the Microsoft case and had their lives changed so I think I'll offer mine as well it was August of 1996 I was two months at Microsoft and I was on my honeymoon and I was in a one room bed and breakfast on a small island off the coast of Belize and the woman that ran the bed and was a diehard Apple and Netscape fan and I had made the mistake of offering you know when she said so what do you guys do for a living you know blah blah blah you're just newly married how cute I had mentioned that I worked for Microsoft at 7 a.m. the next morning she pounded on my door to let me know that the government had started issuing CIDs against Microsoft and wasn't it great and I looked at my wife and said this is not a good day for Microsoft Karma yesterday said that as she looks back you know she thinks it's hard to say whether there were actually any winners or losers in the Microsoft trial I have to say when it comes to the press coverage I think it's very clear that there were winners and losers in the Microsoft trial yes I think that it's fair to say that that you know my colleagues and I that Microsoft was completely unprepared for the scale and the tenor of the coverage that was going to result from the case and I think that part of it was as David said that we really we're arguing two different cases in the courtroom and I think in many ways we were talking about two different cases with the media and Microsoft was really focused on the technical aspects the economic arguments was there or was there or not for closure did you know Netscape have mechanisms to deliver its browser to people or not and in a way that quickly became beside the point and I think we didn't realize that quickly enough it was a little ironic this morning to hear Frank Fisher say that he thought that Microsoft's legal team was playing to the court of public opinion a little too much in its legal strategy without giving away any family secrets or airing out family laundry within the Microsoft camp I can tell you that despite my frequent begging that was the furthest thing from our lawyers mind of playing to the court of public opinion my view is that the two sides had pretty different philosophies about how legal and communication strategies fit together and that the government really saw the connection between the legal arguments that they were trying to make and the arguments that would play in the court of opinion public opinion and that Microsoft really took the position that the audience that we were playing to in the courtroom was an audience of one and that the PR people were free to run around and try to put the best spin that we could put on it but that there was not an integration in the same way that there was with the government I think there's a universal what's that or the browser yeah I think there's a universal truth that whenever two sides are in sort of a dispute that each of them is going to think that the other side is doing more to try to leverage the situation than that each of them is getting a better ride from the media and I think that probably did did occur on both sides it's interesting to talk at this conference with folks who are on the other side and here here from their perspective how they felt things that were going and where they felt that we had gotten a good ride from the media I mean clearly there were some unique factors in this case the fact that there was no direct testimony at all and that it was just cross examination then a small amount of redirect really changed you know how evidence was brought out in the case and I remember after we broke and we were back in Redmond it was holiday time and you know clearly the first two or three months of the case had not gone very well and the press coverage had been pretty bad and one of our executives said yeah but we haven't had a chance to get our witnesses on yet and then we're really going to rock and we just thought yeah it's going to be nonstop cross examination from David Boyce that's going to be great and another unique factor of the case was obviously the Gates deposition and you know karma was great to hear yesterday karma say I can't believe that we got away with playing it day after day after day you know there's another interesting factor that that you know when the deposition was being taken there was actually an order in place from the court saying that no videotape depositions would be played in court and after the deposition was taken you know that order was was modified and you know videotape depositions were allowed to come into the court and so I think that had a pretty profound effect on trial strategy and you know the ability to really move this into a morality play and not just you know economic issues and arguments among dry economists our corporate communications tactics changed pretty radically over the course of the six months I think we arrived we were going to be very proactive we were going to make sure that you know we drove the narrative of this case that was our you know Microsoft likes to do version one version two version three that was our version one dot oh strategies we're going to be very proactive the quickly morphed into a version one point one which is we're going to be very proactive and we're just going to try you know hope like hell that we got at least any message into the coverage version 2.0 was we decided we're going to be very reactive you know we go out and talk on the courthouse steps if David was going to go out and talk on the courthouse steps and we sort of take our lead from the government version 3.0 is we had this blinding realization that the reporters had actually sat in the same courtroom that we had sat in they didn't they didn't actually need us to go out on the courthouse steps and tell them what they had just seen and in fact it kind of irritated them when we tried to tell them what they had just seen so you know it doesn't take very long but we wised up to it and so we decided that we would just sort of you know head on back to to our law offices or hotel rooms or maybe even just get a good run in and that was probably the most productive thing we could do in working with the media and if they called us we'd probably take the call. Brad talked a little bit about how you know Microsoft has changed and how the trial changed Microsoft and Dave talked about how you know the trial changed how we build our products I would also say that the trial and the experience we went through you know has had a pretty profound effect on how we handle corporate communications at Microsoft as well. Before I joined Microsoft I spent 15 years in government both in Washington D.C. and in the you know communications director for the mayor of Seattle. So I was used to some pretty intense partisan back and forth I had had protesters chain themselves to my desk in Seattle but nothing prepared me for what I saw when I joined Microsoft just the amount of adolescent bickering within the software industry and John you covered the industry I mean every day it seemed like Scott McNeely would wheel out a new you know insult for I mean he called Gates and Balmer Balmer and Butthead he talked about windows as a as a hairball you know it's just the level of playground taunting surprised even me coming from government and I think we you know and let's just be honest you know Microsoft love to give it right back you know we're talking about the mid 90s it was a pretty rough and tumble industry and we we loved sort of jabbing each other and I think we brought a little bit of that to the trial when we first started that we thought we were still in a fairly aggressive communications mode and you know over time I think that we really have learned from the case and that the learnings that we had in Washington D.C. were carried back to Washington to Washington State and the folks who had been on the front lines in the trial were accorded a certain amount of respect and influence in moderating the more aggressive impulses of our communications team in Redmond and I think we now take a much more long term approach to our communications I think we now don't think that you know our job is to sort of ram our message down the throats of reporters it's much more to have a conversation that extends over months and over many news cycles and understand where people are coming from and you know understand the dynamics of the industry as a whole and try to have a mature conversation and persuade people to our point of view rather than try to you know bully people to our point of view and the last thing is I think that the the trial has definitely caused Microsoft to have a very thick skin when it comes to PR there are people that join my team from other companies and they inevitably I mean the scene repeats itself with every new person you know at some point in the first month they will show up at my door you know breathless and say oh my god you know look at what's happening here look at this news story and I'll look at it and I'll say yeah that's that's not a great story but you know what we've seen worse we're gonna make it through this you know don't get so excited so I think it's good for corporations to have thick skins I think it's good for corporations to understand how they fit into society and where they stand vis-a-vis the needs of citizens and the role that government plays and I think that Microsoft it might have been there might have been easier ways to learn it but we learned it so we in the interest of keeping things moving we're gonna probably just only go for another 10 or 15 minutes but and we'll open up to questions but I didn't want to ask Mark one question first which is if you had done a better job with the audience of one Judge Jackson in other words you know if the judge had been more receptive to your witnesses and and the arguments in the court and and and ultimately he was the person deciding the case would the audience of journalists and newspaper stories and magazine articles have mattered in other words you know we were doing it for our readers I mean that was our purpose but you know how much did the press actually matter in the context of this trial well I I would actually I'll answer that question also turn it around a little bit which is we came to realize that what really mattered in the coverage was how the respective sides did with the audience of one that you know you guys were writing what you saw and the most important things that you saw was how the judge responded right and so if Microsoft had you know gotten a more positive response or a more positive hearing or the body language or the questions posed from the bench had been more positive I think that the coverage would have been more positive the the other question you ask is you know did the coverage matter did the coverage in any way affect the outcome I mean I don't think I'm the best person to ask that of my my strong sense is that the coverage probably did not have a significant outcome impact on the outcome of the case I think it had a significant outcome or impact on the outcome of you know how people perceive you know what went on in the trial how people perceived Microsoft to some degree and so I think that the coverage was important but I don't think in my heart that it was important to the specific outcome of the case. Yes sir. A question for Mark maybe two questions. A day or two after the European Commission handed down its big decision in its Microsoft case. The commission or the court of first instance? Commission. Three United States senators, John Warner was one, gave speeches from the floor condemning the Europeans for meddling in the in affairs that had already been taken care of in the United States and what's interesting about those speeches is that they were all they're almost identical verbatim. I don't think the three senators got together and said let's all give the same speech and in fact they cleaned up their error later and only one appeared in the congressional record. I got this from the broad transcript. Now what was going on there? Question number two, a broader question. I don't have the numbers in my head but when the Microsoft case was escalated in 1998 there was a tremendous increase several millions of dollars in Microsoft's Washington lobbying expenditures and also a large increase in its political contributions. What effect if any did you think those contributions had? Boy this brings you back doesn't it Mark? I may tell my the story that I left out after all. So let me take the second question first which is you know sort of looking at the growth of Microsoft's Washington DC operations and our lobbying and I'm certainly not the most expert at that. We've got several people here from our law and corporate affairs that I can refer you to as well but I would take it back even a little bit further than that. In the early 1990s all the way to like 1993-1994 we had no one in Washington DC and then in about 1994-1995 we had a one person office in Washington DC and the rest of the technology industry was basically in about the same boat. This is an industry that grew up on the left coast and basically viewed itself as innovators working in a very entrepreneurial way and that government really didn't have a role in the work that was being done. So the entire industry was rather slow to ramp up I think in terms of their Washington DC presence and over time I think we came to realize that the issues that we're talking about technology came to play such a role in the life of individuals and the life of businesses and the life of American society that government had a legitimate role in regulating it and looking at it and looking at policies that would affect it and that the industry had to step up and so I would not draw a line between that and this specific case I think you need to look at the bigger issues that are going on. Now for some reason and I'm excited to hear about why when you asked your first question Mr. Boyce put his hand up as though he wanted to answer it. I'm almost afraid of what I'm about to hear. I'm not sure what I'm about to hear. It reminds me of my favorite moment of the trial when I can't remember which witness it was who said I think that's a trick question and then you said no no I will raise my hand when I'm asking you a trick question. And then about 10 minutes later you asked a question with your hand. So should I be calling on you or should I not? One of the things that I thought was interesting in comparison to the IBM case is that after the IBM case was over the EU went after IBM and the Justice Department was extremely helpful in helping to keep what the EU did within some reasonable bounds and I think for some of the reasons we talked about at lunch the Justice Department and the United States government generally whether they're senators or the executive branch has been a lot less successful and a lot less able to play a meaningful role in influencing what happened in the EU and it may be that a new administration will be more effective in that but I think one of the consequences of a whole series of actions beginning with maybe the settlement but including things as disparate as the Iraq war and the effect on European countries is that our administration has not had the ability to make the kind of impact that otherwise might have happened. I had one comment on Joe's question. Lots of judges talk to the press and including during trials they are almost invariably sophisticated enough in doing that to keep the ground rules very clear that it is totally not for attribution at any time not just until the trial is over and I think that the thing not every judge talks to the press and I think it's a minority but it's a very substantial minority and I think the thing that distinguished Judge Jackson was not that he talked to the press but a certain naivete in the sense of not understanding how explosive it was if it was going to get out and his sort of attitude of well I don't want you to print it while I'm deciding the case but once it's over with you can print it and I think that was the issue in my mind it wasn't that unusual for somebody to talk to the press. Well I'm glad to know that for the Google trial. Judge Jackson when I spoke to him made it clear that he was talking to me and evidently to a couple of others only after all the facts were in and the record was closed. He said that Microsoft has hundreds of people and teams of lawyers and I'm here alone and he wanted he said he wouldn't be able to he wanted to be able to explain why he did what he did and he did ask people to the reporters he spoke to to keep it off the record the fact that he'd done so before deciding the case again after all the facts were in which he thought he said it's my job to to to have an opinion and I do have an opinion and here it is and the New York Times did not respect that wish when they published their story a day after ours that's what happened. Wait. The way it works is you you're the first person who got Jackson on the record and they did it the next day and then where the bad guys here. What happened was the Times story made it clear that the judge had had talked you know prior to the closing of the how I say. We only have five more minutes. Yes sir. I'm sorry this is another question for Mark but I I wanted to ask you about the freedom to innovate network. I guess the grassroots organization some might like to call it Astro turf advocacy organization that got set up during during the trial is wondering if you got any mileage out of that in terms of say Tony act comments and you know what what you see the role for the organization going forward vis-a-vis in relation to the press activities. Sure. Sure. I don't have any insight into whether or not companies that joined the freedom to innovate network helped to provide some of the 32,000 comments that Phil had to read or not. But basically that is a voluntary organization of people who you know sign up companies that sign up and say yes we believe that you know allowing high tech companies to continue to be able to innovate and integrate new features into their products. That's an important consideration for ongoing economic growth. So Phil to the extent that they did you know make it a more heavy reading cycle you know our apologies on their behalf. Yeah. Well thank you. We're only back on track. We're only 15 minutes behind schedule. Very well done. Thank you all very much.