Bill Gates' Nemesis

By Chris Taylor

It was, as it happens, Pearl Harbor Day when David Boies got the news in the Justice Department's war room. Not only was the world's richest man personally accusing him, the government's lead attorney in the Microsoft antitrust case, of trying to destroy his company, but one of the 20 states backing the suit--South Carolina--had also switched sides. As usual, Boies was almost the last to know; he learned about it when a reporter dialed his cell phone looking for a quote. "I find out a lot of what's going on in this case from journalists," jokes the veteran attorney.

Is Boies perturbed by these developments? Not a bit, he says. Should he be? Well, South Carolina's Republican attorney general Charlie Condon says he broke ranks because the proposed merger of AOL and Netscape proves that Microsoft does not monopolize the PC industry. Because that is the point Microsoft has been earnestly making for two weeks, there was some celebration at the company's glitzy press conference Monday (the same event where Bill Gates, appearing by satellite, accused Boies of being "out to destroy Microsoft...and make us look very bad").

But that was about as good as it got for Gates last week. By Tuesday, it emerged that Microsoft had donated a hefty $20,000 to the South Carolina Republican Party with the specific instruction that none of it go toward the attorney general's re-election, which was enough to raise doubts about his motivation. Moreover, South Carolina had not pulled enough weight in the case for its withdrawal to ignite secessionist fever. "I wouldn't have been able to identify them as one of the states involved," says Boies.

Meanwhile, on the one battleground that matters--the federal courthouse--Microsoft is still doing dismally. Take its central assertion that Internet Explorer is not a separate application, but an integral part of the Windows operating system. A government expert pointed out last week that Microsoft Press's computer dictionary defines a Web browser (like Explorer) as an application.

That's just one example of how Microsoft has become its own worst enemy in this trial. Another, of course, is Gates' famously evasive videotaped testimony. Until now, Microsoft has rapped the feds for taking "snippets" of its CEO's comments out of context. But on Monday, Gates changed tack, accusing Boies of asking deliberately "ambiguous questions" and then sandbagging Microsoft by airing the tapes. If he'd known they were going to be played in court, Gates said, he would have "smiled a little bit."

Why the new course? Boies suggests it could have something to do with the fact that Microsoft's legal team now has the rights to the Gates videotape--and can show it in its entirety at any time. "If they want to make it available for rent at Blockbuster, they can do it," confirms Georgetown University law professor Bill Kovacic. "But I doubt there's much context there that will help." All of which may explain why Boies is still smiling--no matter how many states are on his side.