MSFT has by no means "won" the trial...
NY Times:
nytimes.com
<<WASHINGTON -- Trying to defang the government's antitrust
charges against it, Microsoft Corp. introduced a host of
evidence this week to show that the Netscape browser was still healthy
and thriving, despite Microsoft's all-out assault on the browser market.
But in a single stroke Friday afternoon, a government lawyer undercut
Microsoft's strategy by producing a Microsoft e-mail written in January
suggesting that the company had cynically and selectively produced data
to support this point of view.
In the e-mail, Microsoft public relations
executive Greg Shaw asked others at the
company: "What data can we find right
away, showing that the Netscape
browser is still healthy? The government
is introducing a bunch of data showing
Netscape headed down big time and
Microsoft way up."
Netscape Communications Corp.'s
browser held a commanding lead until
Microsoft entered the market with a
browser, Internet Explorer, that was tied
to the Windows operating system and set
out on a campaign to dissuade other companies to work with Netscape.
The government's antitrust case is built on the contention that Microsoft
used its dominance in operating systems to bolster its share of the
browser market illegally.
"It would help if you could send me some reports showing their market
share healthy and holding," Shaw added.
Later that morning, Robert Bennett, group product manager for
Windows, wrote back, saying: "All the analyses have pretty much come
to the same conclusion, which is that Netscape is declining and Internet
Explorer is gaining."
A half hour later, Yusef Mehdi, director of Windows marketing, weighed
in, saying that he had found one survey showing "us very close on
Internet Explorer share" and another that "has Netscape even or even
higher."
"This is for the trial," Mehdi added, "so let's provide the more negative
analysts."
As David Boies, the lead government lawyer, read that aloud, Judge
Thomas Penfield Jackson, who is trying the case without a jury, chuckled
and shook his head, while Microsoft's lawyers looked grim.
And when Boies asked the witness, Franklin Fisher, an economist from
Massachusetts Institute of Technology, what he thought this said about
his analysis of Microsoft's take on the browser war, Fisher said only:
"This document speaks for itself rather louder than most."
In questioning the witness again a short time later, a Microsoft lawyer,
Michael Lacovara, heatedly asserted that all the Microsoft executives
involved in the e-mail exchange were "marketing and public relations
personnel" and that the exchange was "a discussion of trial public
relations," not of legal issues. In fact, at one point, Shaw wrote that the
request for market data "is for press purposes."
But it was not the first time Microsoft had been shown to gin up surveys
or statistics that would indicate support for the company's view.
In January, Boies offered as evidence an e-mail message in which
Microsoft chairman Bill Gates wrote, "It would help me immensely to
have a survey showing that 90 percent of developers believe that putting
the browser into the operating system makes sense." Later, he added,
"Ideally we would have a survey before I appear at the Senate on March
3d."
In subsequent e-mail messages, Microsoft employees laid out how they
would phrase the survey questions to be sure they elicited the responses
Gates wanted.
Earlier Friday, Boies also seemed to take some of the sting out of
Microsoft's attack Thursday evening on a previous government witness,
James Barksdale, who was chairman of Netscape. In court last October,
Barksdale asserted that because of what he described as Microsoft's
predatory conduct, Netscape could no longer get computer makers to
provide the Netscape browser with their products.
"That's over half the distribution channel, and we're basically out of it," he
said. But an internal document prepared for America Online at the same
time, as part of that company's research for its purchase of Netscape,
showed that just over one-fifth of the nation's computer manufacturers
were shipping Netscape at the time.
As a result, Lacovara asserted that Barksdale's credibility had been
thrown into question, and Judge Jackson expressed interest in that.
Friday, Boies pointed to several passages in Barksdale's direct written
testimony in which he listed all the companies that were shipping
Netscape on at least some of their computers and explained precisely
what the arrangements allowed. All this detailed information, Boies and
Fisher both said, showed that Barksdale was not trying to overstate the
depth of Netscape's problem. Jackson did not remark on this
development.>>
|
