New York Times version ...
U.S. Attacks Microsoft Official on Netscape Meeting
By STEVE LOHR
WASHINGTON -- The Microsoft executive responsible for dealing with Netscape Communications Corp. testified Monday that he did not regard Netscape as a competitor in June 1995. But the government presented e-mail written at the time in which the witness himself and other Microsoft's executives portrayed Netscape as a potentially dangerous rival.
The point is crucial because that meeting between Microsoft and Netscape is a key episode in the government's antitrust case.
With document after document supplementing his acerbic cross-examination, David Boies, the Justice Department's lead trial lawyer in the case against Microsoft Corp., proceeded Monday with perhaps the most sweeping attack on the credibility of a witness since the trial began last October.
Again and again, he tried to point to contradictions between what Daniel Rosen, the witness, was saying Monday and what he and other Microsoft executives had written and said in the past.
Boies certainly felt he succeeded. He abruptly cut off his cross-examination in the afternoon as Rosen repeatedly seemed evasive on the stand, interrupting Rosen in mid-sentence and telling the judge, "I have no further questions."
Afterward, Boies explained his tactic on the courthouse steps. "I thought the points about the witness' credibility had been made," he said.
Microsoft replies that Rosen was simply trying to be precise about highly detailed discussions of software technology and strategy. And Rosen testified that his belief that Netscape did not intend to compete with Microsoft was based on what Netscape executives told him then.
Rosen led a team from Microsoft that met with Netscape executives on June 21, 1995, when the government contends that Microsoft threatened Netscape and made an illegal offer to divide the Internet browser market between them.
After Netscape declined the deal, the government says, Microsoft embarked on a campaign to crush Netscape, the early leader in the browser market, and stifle competition. Microsoft replies that those allegations are based on a fundamental misunderstanding of what occurred at the meeting.
Rosen testified that at the time he saw Netscape as a potential partner rather than a bitter rival. Microsoft, he added, was trying to persuade Netscape to adopt the underlying Internet technology it was building into its Windows 95 operating system, and then to build software products on top of Microsoft's technology.
Yet on May 15, 1995, more than a month before the disputed June meeting, Rosen wrote an e-mail titled "Internet Direction" in which he described the threat that Internet software posed to Microsoft's control of the basic technology of personal computer software.
"Microsoft currently controls the base and evolution of the desktop platform," Rosen wrote. "The threat of another company (Netscape has been mentioned by many) to use their Internet World Wide Web browser as an evolution base could threaten a considerable portion of Microsoft's future revenue."
In court, Boies asked, "Did you believe that at the time you wrote it?"
Rosen replied, "No sir."
The Microsoft executive added that his memo was a draft document, which he said he had never sent, and that it represented mostly a summary of thinking within Microsoft.
Then Boies pointed out that the e-mail bore the heading, "Sent: Monday, May 15, 1995, 12:48 a.m." Rosen replied that the time in the heading represented when he saved the e-mail on his personal computer and did not necessarily indicate that it had been sent.
But in the afternoon, Boies presented a Microsoft document list showing that the government obtained Rosen's e-mail from Ben Slivka, a Microsoft executive who was listed among the intended recipients of the Rosen message.
"Does that refresh your memory?" Boies asked.
"Yes," Rosen replied, "at the least, I sent it to Slivka." But he added that he still did not believe that he sent the unfinished draft to senior Microsoft executives listed as recipients.
Later in the same memo, Rosen wrote that Microsoft should try to "strike a close relationship with Netscape" and that Microsoft's goal should be to "wrest leadership of the client evolution from them."
Asked about this passage, Rosen said that "by wrest, I mean take." But he said again that this referred to underlying Internet software and did not imply trying to push Netscape out of parts of the browser market.
Holding to his testimony that he did not regard Netscape as a rival in June 1995, Rosen said that a strategy document written by William H. Gates, the Microsoft chairman, in May 1995 was simply wrong.
In the document, "The Internet Tidal Wave," which was widely circulated within Microsoft, Gates called Netscape a "new competitor 'born' on the Internet" and said Netscape's strategy was to "commoditize the underlying operating system" -- a direct threat to Microsoft's lucrative business.
Asked about the Gates document, Rosen said, "I recall when reading this I thought that Bill was probably wrong."
A Microsoft spokesman, Mark Murray, said that the government's efforts Monday did not show contradictions in Rosen's testimony or that Microsoft was engaged in revisionist history to suit its defense. Instead, he said, the testimony and documents merely demonstrated that in 1995 there was "some disagreement within Microsoft about whether Netscape would be a competitor or not." |
