Microsoft Trial Update: Barksdale Faces Third Day On Stand



Microsoft Corp. has turned the government's legal tactics on the government's first witness, relying on E-mail documents to make its case in this the fourth day of the historic antitrust trial.

Microsoft's lead attorney, John Warden, Thursday introduced E-mails from Marc Andreessen, a co-founder of Netscape Communications Corp., as evidence that Netscape planned all along to give its browser technology away free. This was an attempt to rebut the government's claim that Microsoft's strategy of integrating its Internet Explorer browser into Windows was a predatory move.

An Oct. 13, 1994, E-mail from Andreessen reads: "Subject to the timing and results of this beta cycle, Mosaic Communications [now known as Netscape] will release Mosaic Netscape 1.0, also available free for personal use via the Internet . . ."

A second Andreessen E-mail, dated Nov. 24, 1994, reads: "We're absolutely committed to giving 1.0 away for personal use. Watch us."

Warden sprung these E-mails on Netscape Chief Executive James Barksdale during his third day on the witness stand under Warden's cross-examination.

The Andreessen E-mail follows Microsoft's use of E-mail as evidence as well as a pretrial deposition from Jim Clark, a Netscape co-founder, former chief executive and current chairman. Clark had written in December 1994 to Microsoft's Dan Rosen and Brad Silverberg that he was interested in offering Microsoft an equity position in Netscape.

Microsoft's attorney attempted to show that meetings between the two companies occurred all the time and that the companies had a cordial relationship, despite Barksdale's claim that at a June 21, 1995, meeting, Microsoft offered to divide the browser market with Netscape.

For instance, Warden introduced E-mail from Barksdale to Andreessen about a June 2, 1995, meeting between the two companies that said the Microsoft people were "friendly and nonthreatening." He also said that Microsoft offered the possibility of investing in Netscape. And Barksdale told Andreessen that Microsoft was amenable to providing two technologies Andreessen sought from Microsoft: a browser scripting engine and a dialer technology.

In addition, Warden introduced evidence in the form of a letter from Netscape's outside attorneys to assistant attorney general for antitrust, Joel Klein, that said Netscape could not find a way to disengage Internet Explorer from Windows 98 without degrading the operating system.

Warden also asked Barksdale a series of questions about the Windows operating system to show that even Netscape's Navigator browser relies heavily on the operating system's features, including its TCP/IP stack and Winsock.

Mark Murray, a spokesman for Microsoft, said the company viewed Thursday's early session as "another powerful morning of cross-examination." He cited the Netscape attorney's letter as evidence that "IE is an integrated part of Windows 98." He added that the government's attempt to say otherwise "brings us into an area where the government is trying to dictate to companies how they should design their products."

David Boies, the government's lead attorney, however, said that Microsoft raising the issue of a June 2 meeting is irrelevant. "They're talking about meetings that took place at other times. We're not saying that every time they met they brought up sharing the market."

Boies also said the trial was going more slowly than he expected but that U.S. District Judge Thomas Penfield Jackson did not discuss speeding up the pace during a meeting in his chambers following Wednesday's session.

Microsoft's Murray countered that in Microsoft's view, Barksdale has "had three years to lobby the government" to act on his behalf. "We believe we should be entitled" to the time it takes to set the record straight. Murray said he did not know how long Barksdale would be on the stand.

Warden has hit hard at Barksdale and Netscape, a company he has a few times referred to as "the government's ward" in this case.

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