The View from Microsoft's Only "Juror"
Independent software developer Jack Krupansky has been there every day. So what does this informed but unbiased observer think so far?

They're known as trial buffs. Riveted by the drama of courtroom battle, these amateur law enthusiasts hang around courthouses and watch litigation with the passion that others reserve for sports or soap operas.

In the Microsoft case, the most dedicated trial buff is Jack Krupansky. The 44-year-old software developer, who has temporarily relocated from Cambridge, Mass., to Washington, D.C., to watch the case, has attended every day of the trial so far and keeps up with each new document as exhibits are introduced. A former employee of Digital Equipment Corp., he's currently consulting part-time for Northern Light Technology in Cambridge. (Since his job allows him to work a flexible schedule, he's able to attend the trial daily by doing his work during the evenings and on weekends.)

Not counting the three dozen or so reporters who watch the trial every day, Krupansky is the only courtroom regular who could credibly claim to be unbiased. In contrast, the rest of the audience includes a mixed bag of high-tech executives, lobbyists, lawyers, and public relations experts -- each of whom has ties to one side or the other.

That makes Krupansky the closest thing U.S. v. Microsoft has to an unbiased juror. At the same time, his background in technology gives him a frame of reference for the proceedings. As such, his views about the case -- even though they reflect the opinions of only one person -- are informative.

Of course, the Microsoft case is a so-called bench trial. This means all of the factual determinations will be made by Judge Thomas Penfield Jackson rather than a 12-person jury or another panel of citizens. Krupansky's views on the case are his alone. On the other hand, the daily accounts of the trial by the legions of spinmeisters have become predictable and self-serving. The spinners have no more power over the outcome than Krupansky does -- and unlike them, he's not getting paid by one of the litigants.

So to get Krupansky's impartial yet informed perspective, Business Week Legal Affairs Editor Mike France has spoken with him several times recently. Here are some excerpts of their conversations:

Q: Who do you think is going to win the case?
A: With this judge, the government is likely to win. But I think he'll also probably throw some of the government's charges out.

Q: What do you think of Judge Jackson's performance?
A: He's fair to both sides. But his mental processes seem to be more receptive to the government's arguments. Sometimes when Microsoft's lawyers are asking questions, he'll just be sitting there sort of shaking his head. Or he's got his eyes closed...as if he's intentionally trying to discount what they are saying.

Q: Who has been the Justice Dept.'s most damaging witness?
A: [Netscape Communications Corp. CEO James] Barksdale, primarily because Netscape is the company that's been the most harmed by Microsoft. I would give him a 60 [out of 100 points]. But [Netscape] kind of loses some credibility...because there was an ideology of hating Microsoft.

Q: Have Justice's attorneys proved that Microsoft has harmed consumers?
A: They haven't proved any direct harm to the consumer. The only thing they have kind of proved is that Netscape didn't innovate as much as it could have [without Microsoft's competitive attack] -- and that is an indirect effect. From my point of view as a consumer, I don't need most of the features the two companies are putting in a browser anyway. Show me the page, and let me move backward and forward. That's all I need.

Q: What did you think of government economic witness Frederick Warren-Boulton?
A: He made some really good points, but it was a mixed bag. I'd give him a 50 [out of 100 points]. On the one hand, Microsoft is making a lot of profit from the operating system. There is documentation showing them debating whether to charge $49, or $79, or $129. They could charge $49 and make money, but charge [more] -- that does indicate some kind of monopoly power. On the other hand, it's a great bargain for everything you get in an operating system.

Q: Do you think Justice proved that Microsoft proposed a market-division meeting to Netscape?
A: Some of the evidence is shaky, but some of it is not so shaky. If I had to vote on the issue right now, there is not beyond-a-shadow-of-a-doubt evidence that Microsoft did it -- especially since even Barksdale said they [Microsoft] were as explicit as they could be without actually being explicit. If he had said they weren't explicit, that would make it more dubious.

Q: Do you think Justice has proved that Microsoft tried to sabotage Java?
A: I would score this 60-40 in Microsoft's favor. If Microsoft didn't support Java at all, then that would work in the government's favor. But Microsoft does support [it], and they also provide [a better version of Java]. How can you slam them for that?

Q: How do you think the two trial teams are doing?
A: Microsoft's lawyers are very professional. They are a bit aggressive at times, but given Microsoft's reputation, I would have expected them to be far more aggressive. As far as Justice is concerned, there's a bit of weakness there. Their junior people aren't as good as Microsoft's junior people. They've got some people where [lead trial counsel David] Boies has to keep his eyes on them, make little signals to them, and talk over their shoulders.