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Clark memo fails to shake Barksdale in six hour marathon

Netscape's CEO declines to say what Microsoft's brief wants him to say

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Microsoft continued its cross-examination of Netscape CEO Jim Barksdale yesterday for a further six hours. Microsoft's purpose was to tempt him to say that Netscape was not hurt by Microsoft's tactics, and that Internet Explorer was a better product. Barksdale wasn't playing this game, and gave long, stonewalling answers, sometimes questioning the questions he was asked. John Warden, for Microsoft, tried to show that his client had not been successful in cutting off the oxygen supply. He asked Barksdale: "Is it true that Netscape's web browser is the most used software application of all time?" Barksdale clearly saw this trap -- to say "yes" would undermine his case -- so he replied "one of the most successful". Warden produced an email from Jim Clark, co-founder and chairman of Netscape, to Brad Silverberg of Microsoft dated 29 December 1994 in which he said: "We want to make this company a success, but not at Microsoft's expense. "We'd like to work with you... Working together could be in your self-interest as well as ours. Depending on the interest level, you might take an equity position in Netscape with the ability to expand that later... "No one in my organization knows about this message..." It was not mentioned in court that the message was sent at 3:01am, at a time when Clark was concerned that Netscape might be facing financial difficulties, and feeling a little fragile about his personal $4 million or so exposure. Barksdale said that "Jim Clark has described this [email] as a moment of weakness". Microsoft immediately rejected the approach, and the following week Barksdale started work at Netscape, but was not told about the email. Barksdale said he though Clark's intention was to persuade Microsoft to make an investment in Netscape. Warden then suggested to Barksdale that six months later, Microsoft was just responding to Netscape's approach, and that Clark's message laid the foundation for the June 1995 meeting. Barksdale said: "No, it was not consistent with my company's strategy," and added that he did not know about the message until recently -- and nor did anyone else at Netscape. Barksdale threw further light on Microsoft's attempt at a 'smoking pistol' document by saying that Clark was simply "selling" in the email, and attempting to revive a licensing deal that Netscape had rejected because it was too low: "[Microsoft] had offered a flat fee of a couple of million dollars to take us out of the game... we didn't like the deal." Barksdale admitted that Microsoft had not explicitly suggested at the June meeting that the browser market would be carved up, but the expectation was "as explicit as you could get". Microsoft regards the message as very important, but Christine Varney, Netscape's general counsel, said during a break that Clark's message did not excuse Microsoft's behaviour, and was unrelated to the June conversation. "This is just another attempt to make fiction out of fact," she said. David Boies, the DoJ trial counsel, said afterwards that the email was "another attempt to change the subject by Microsoft". Warden tried to establish that Microsoft had disclosed in 1994 that it intended to offer its browser without charge, and before Netscape had released its browser. It is very much in Microsoft's interest to try to do this, as the DoJ maintains that Microsoft gives IE away to make things difficult for Netscape. A strange delay resulted from Warden's attempt to get Barksdale to admit that IE received better reviews than Navigator. Warden gave Barksdale 19 reviews that purported to show that IE was superior. Barksdale retired to another room for about 15 minutes to read them, and returned to tell Warden that they were not "head-to-head" comparisons. Warden also tried to make an issue of an apparent inconsistency between Clark's knowledge that Microsoft intended to give IE away, as Bill Gates had said at a conference in 1994 that Clark had also attended, and Netscape's original decision not to give Navigator away. Barksdale said that free distribution was never included in Netscape's strategy, and that if Clark thought so, "he was just wrong". Warden pressed again, and suggested that Netscape's browser was "free, but not free", referring to the fact that Netscape did not press for payment of the nominal $39 charge for Navigator. Barksdale said he had never heard this phrase, but Netscape found it would be uneconomic to collect payments. Barksdale would not concede that Netscape could benefit from a free browser: "You could go flat broke doing that." Another argument used by Warden was to try to get Barksdale to admit that it was ironic that Netscape, with a browser "monopoly" should seek help from the DoJ to defend it. Barksdale said he had three meetings with Joel Klein, the head of DoJ antitrust, and sat on a panel with him once. Warden also wanted to know when Netscape had retained Gary Reback, a lawyer with Wilson, Sonsini, Goodrich & Rosati, and a strong critic of Microsoft. Barksdale could not recall. All in all, Microsoft has gained little from its cross-examination of Barksdale so far. Much depends on the view that Judge Jackson takes of the June meeting. ® Complete Register trial coverage Click for more stories

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