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Microsoft demands academics hand over Netscape, AOL info

Scholar's privilege may not be protect Harvard, MIT profs

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Microsoft yesterday asked a federal judge in Boston to compel Michael Cusumano of MIT and David Yoffie of Harvard to hand over tapes and transcripts from their interviews with Netscape and AOL executives. These form the basis of a book entitled Competing on Internet time: lessons from Netscape and the battle with Microsoft. The authors, backed by their universities, have refused to do this, claiming 'scholar's privilege'. Both had to sign non-disclosure agreements before the interviews. Legally, Microsoft appears to have a good case in this instance, since in Massachusetts there are no laws that shield journalists from disclosing unpublished material, as is the case in some other states. If Microsoft can convince the judge that the information required is central to the case, it is likely to prevail over First Amendment rights to academic freedom. Microsoft has a copy of the forthcoming book, which it obtained from Netscape as part of its subpoena, since under the terms of the NDA, Netscape had the right to see the text. One line of Microsoft's defence in the DC federal court will evidently be to attack Netscape for having what Michael Toy, a Netscape employee, described as browser code that was "slapped together originally and had never been fixed". His remarks of course apply pretty well to the whole software industry. The snippets that Microsoft has disclosed are in the end just value judgements, and if there were not a diversity of opinion within a company, it would be most exceptional. This line of defence suggests that Microsoft is finding that the evidence in its own documents is so damning that it must attack. In Netscape's case, Microsoft argument will be along the lines that users thought IE superior to Navigator, and that there is evidence that Netscape's product was cobbled together and has remained that way. Microsoft will also apparently try to show that AOL chose IE, and that -- according to former Netscape VP Ram Shiriram -- this was "Netscape's own fault". It is probably more significant that AOL CEO Steve Case disputes this story, and is saying so. Cusumano previously co-authored a book entitled Microsoft Secrets which was notable for its lack of said secrets, the slavish desire not to upset Microsoft and the failure to retrofit management principles to Microsoft's erratic progress over the years. It brought a refreshing naivete to studies of Microsoft. ® Click for more stories

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