It's beyond bizarre, Gerald. It's totally random! Here's another attorney, somewhat closer to the matter, trying to make sense of it. To no avail, of course. Rich Gray can't do it, I guess we have to wait for old Rick Rule to explain it all. Personally, I think Bill's still representing himself behind the scenes here.
Trial Commentary: Days 58 and 59 Feb. 23, 1999 Another one bites the dust sjmercury.com
I have reached the point where I am trying desperately, without success, to find something positive to say about Microsoft's witnesses and evidence. This is, after all, the point in the case where Microsoft gets to tell its side of the story. I also take very seriously my promise to remain balanced in my analysis of the case, giving equal time to both sides. The failures of Microsoft's witnesses, however, are making it very difficult to find a Microsoft side to give credence to.
I then thought I would do a lighthearted column today. Talking with one of my partners at lunch, I thought it would be fun to to write a column pretending I had discovered why Microsoft's witnesses were doing so poorly. I was going to describe in conspiratorial tones a fictional memo from the files of Microsoft that described a secret contest. The winner of the contest would be the Microsoft employee whose testimony at the trial was the most severely savaged by David Boies. The prize would have been something like a state-of-the-art home computer network, running, of course, on Windows NT. As I read the reports of this morning's dismantling of Daniel Rosen, I realized I did not have the heart to mock Microsoft's witnesses on a day when one of them had effectively been stripped naked in open court. . . .
Yesterday Mr. Rosen testified that everyone at Microsoft who thought in 1995 that Netscape's browser posed a potential competitive threat to Windows was simply wrong. This included Bill Gates, whose memo ''The Internet Tidal Wave'' contained the following critique of the Netscape threat: ''A new competitor 'born' on the Internet is Netscape.... They are pursuing a multi-platform strategy where they move the key API (applications programming interface) into the client to commoditize the underlying operating system.''
Mr. Rosen testified that he was in a better position than Mr. Gates to analyze Netscape's intentions. In 1995 his analysis was that Netscape was no threat to Microsoft. This was useful testimony for Microsoft, if true, since if Netscape was not a threat then it is unlikely Microsoft would have been concerned about dividing the browser market with Netscape at the time of the June 21, 1995 meeting. Mr. Gates' memo was, of course, a pesky problem for anyone wishing to buy into Mr. Rosen's revisionist history. There was, as anyone who has been closely following this trial would expect, another, even more devastating problem.
This problem was an email prepared by Mr. Rosen himself that suggested control of the APIs coveted by Netscape was a very important issue. Mr. Rosen's reply? The email was just a draft, he really wasn't thinking in those terms himself at the time, and, as a result, he'd never sent the email to anyone.
Except, of course, he had. Confronted with evidence that at least one of the addressees listed on his email had received it, Mr. Rosen reluctantly admitted that he had at least sent it to that one person. This admission punched a major hole in the theme that only fools and a mistaken Bill Gates were concerned about the Netscape threat in 1995.
Today was much worse, returning to the level of ugliness first seen when the videotape vouched for by James Allchin all but spontaneously combusted in open court. Mr. Rosen testified to the circumstances under which Microsoft first got from Netscape a copy of its browser in spring 1995. What happened in court today is that Mr. Rosen testified to a version of what happened that, when confronted with one of his own emails, he was forced to admit was not true. And this was after Boies had cautioned him he must be making up the first story.
Do I think Mr. Rosen intentionally told a lie? No, I don't. Do I think he made up a story on the fly, allowing himself to be painted as a person who gave testimony under oath without much concern as to whether he was really certain it was true or not? Yes.
Microsoft's defense is in an absolute shambles. That doesn't mean that the government automatically wins everything. I 'm working on a column that will be released when this phase of the case closes that will attempt to put Microsoft's miscues in context, explaining where they do and do not have significance in assisting the government in proving its case. I'm not giving anything away to say I don't think Microsoft is doing a very good job of proving its own case.
Cheers, Dan. |
