JFD, Read this story from news.com. I am impressed with the MSFT lawyers. Did MSFT have a monopoly before Windows95? Witness Fisher is unsure. That would eliminate a lot of potential private lawsuits also. How can one conclude that a monopoly can be created after only about 3 or 4 years? I think the tide may have finally turned in this case.
From the article below:
In a potentially important concession to Microsoft, Fisher said he did not believe that Microsoft had consolidated its alleged monopoly in operating system software until after the August 24, 1995 launch of Windows 95, the predecessor to Windows 98.
Asked if Microsoft enjoyed a monopoly before the release of Windows 95, Fisher said, ''I think not, but it's unclear.''
news.com
Microsoft shows documents in browser defense
By Bloomberg News
Special to CNET News.com
June 3, 1999, 12:40 p.m. PT
WASHINGTON-- Microsoft produced documents at its antitrust trial to challenge the government's charge that it blocked two important distribution channels for Netscape Communications' rival Internet browser.
The issue is important because Microsoft is accused of illegally defending the dominance of its Windows operating system by inducing computer makers and Internet service providers not to distribute Netscape's Navigator browser, which was seen as a threat to Windows.
Microsoft defense lawyer Michael Lacovara gave witness Franklin Fisher, the government's top economics expert, papers prepared last fall showing that Navigator was loaded on 22 percent of retail computers and accounted for 24 percent of the browsers distributed by Internet service providers. Those figures conflict with testimony by Netscape's former president, James Barksdale.
"I don't believe that, I don't believe they believe that, I don't believe you believe that," said Fisher upon being shown a document that said 160 million copies of Navigator had been downloaded from the Internet. The information on Navigator's distribution was prepared by investment bankers in connection with America Online's $10.2 billion acquisition of Netscape.
Barksdale testified earlier that Microsoft's business tactics had virtually excluded Navigator's distribution through computer makers and Internet service providers, which consumers use to connect to the World Wide Web.
The Justice Department and 19 states accuse Microsoft of bullying computer makers and Internet service providers into dropping Navigator in favor of its Internet Explorer browser.
Fisher estimated that Navigator was being loaded on just 6 percent of personal computers. The Massachusetts Institute of Technology economist said he couldn't identify the percentage of Netscape browsers distributed by Internet service providers.
Fisher testified that Internet Explorer
had not won the "browser war" with Navigator until the summer of 1998, after the government's antitrust lawsuit was filed and before the trial began last October.
Microsoft denies it hampered consumers' access to Navigator, saying millions of copies of Navigator continue to be downloaded from the Netscape World Wide Web site. Fisher and other government witnesses say the downloading process is cumbersome and time consuming and therefore isn't popular with computer users.
Important concession
In a potentially important concession to Microsoft, Fisher said he did not believe that Microsoft had consolidated its alleged monopoly in operating system software until after the August 24, 1995, launch of Windows 95, the predecessor to Windows 98.
Asked if Microsoft enjoyed a monopoly before the release of Windows 95, Fisher said, "I think not, but it's unclear."
The question of when Microsoft became a monopolist, if ever, is critical in determining whether some of the software giant's business practices were illegal. Conduct to defend a monopoly is illegal--though the same conduct by a non-monopolist wouldn't violate antitrust laws.
By placing the start of the alleged monopoly after August 1995, Fisher's testimony could blunt the impact of the government's star witness in the rebuttal phase of the trial.
Garry Norris, an International Business Machines executive, is scheduled to testify next week that Microsoft threatened to withhold IBM's license for Windows 95 because the computer maker distributed competing products on its products.
In a deposition last week, Norris said Microsoft canceled negotiations with IBM for its Windows 95 license to pressure IBM to settle a $50 million dispute over past royalty payments. Getting a Windows 95 license was crucial because, otherwise, "we were going to be out of the PC business," Norris said.
IBM agreed to pay $30 million to settle the dispute and signed its Windows 95 license just 15 minutes before the launch of Windows 95.
IBM was forced to pay $8 a copy more for Windows than other computer makers because the computer maker was selling software that competed with Microsoft such as Lotus Notes, SmartSuite, and Navigator, Norris said.
IBM's delay in getting Windows 95 gave its competitors a big advantage, Norris had testified.
If Microsoft can convince U.S. District Judge Thomas Penfield Jackson it didn't have a monopoly for much of 1995, the judge might also see the software giant's conduct toward Netscape that year in a different light.
Former Netscape president Barksdale testified for the government that Microsoft offered at a June 21, 1995, meeting to divide the market for Internet browsers, a charge denied by the software giant.
Barksdale said Microsoft began retaliating against Netscape after it refused to stop distributing Navigator and related products for use with Windows.
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