Trial of the Century Day Two: Microsoft comes out swinging

Microsoft chief litigator John Warden opened day two of Microsoft's historic antitrust trial with a stinging attack on the government and its case against the software giant. Warden said that the evidence will show Microsoft is innocent, while offering no concrete examples of that as the DOJ did when it presented its side on Monday. Warden did, however, explain how Microsoft's defense would ride on a more open display of the supposedly damning internal memos and emails the DOJ is using as evidence. For example, the DOJ used a Bill Gates email to Intel's then-CEO Andrew Grove to prove that Microsoft was trying to force Intel out of the Web multimedia market. A complete version of the email, however, shows that Gates was actually happy about Intel's technology and was only concerned about possible incompatibilities with Windows 95. The DOJ "snippet" of the email suggested that Gates was attempting to squash the technology.

"The government's case is long on rhetoric and short on substance," Warden said. "The government's effort to demonize Bill Gates in \[its\] opening statement is emblematic of this approach."

Warden also blasted the government for expanding the case way beyond the original lawsuit, which was simply an issue about the tying of Internet Explorer with Windows.

"From recent allegations of the government, you would never know the central role that that original allegation \[the bundling of Windows and IE\] played," he said.

In the afternoon, Warden was able to take on Netscape CEO Jim Barksdale, whose direct testimony was submitted earlier in the form of a 127 page document that was released yesterday. Warden's cross-examination was brutal, covering only the first 13 pages of that testimony. When Barksdale claimed that it was the DOJ that contacted Netscape first about Microsoft's alleged anti-competitive behavior, Warden produced a letter from Netscape's chief counsel that preceded any contact the DOJ made.

"Isn't it a fact that Netscape was in regular communications with the DOJ at that time \[mid-1995\]?" Warden asked.

"Not that I am aware of. We communicated with them when asked," Barksdale responded.

"Wasn't it true that you were lobbying the DOJ to go after Microsoft?" Warden countered?

Barksdale said he then suggested that the DOJ look into the AOL matter, in which Microsoft's Web browser was chosen over Netscape. Microsoft says this is because Netscape's browser wasn't (and still isn't, over two years later) componentized, and therefore couldn't easily be integrated into the AOL user interface.

One common myth that Warden attempted to prove wrong was that Microsoft threatened to end Compaq's license for Windows 95 because the systems maker wanted to include Netscape Navigator. Netscape claims that this move cost the company millions of dollars. Actually, Compaq wanted to remove the icon for Internet Explorer from Windows, a clear violation of its license agreement. The problem had nothing to do with Netscape and Microsoft, in fact, had no issue with the company including Netscape's browser as well. Warden tried to get Barksdale to admit that he knew this was the real story but Barksdale repeatedly dodged the question.

Barksdale also painted an ugly picture of the self-styled programmer savant Marc Andreessen, who has wrongly taken credit for inventing the Web browser in the past. Andreessen is infamous for his comments about Microsoft and Windows: Barksdale described him as a "young man" who has repeatedly embarrassed Netscape with his loose comments. Andreessen, for example, referred to Windows as a "collection of poorly debugged device drivers." Barksdale said that comment was "a joke \[when he said it\] and a joke now."

Warden also described how Netscape gave away its Web browser until it obtained an 87% marketshare. Then the company began charging customers for the product. Microsoft, in contrast, has always provided its Web browser for free.

Barksdale will take the stand again tomorrow, but day two was clearly a big win for Microsoft.

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