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Barksdale bites back over ‘lie’ accusations

It's boiling down to who's lying, Netscape or Microsoft

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"That's absurd... I was in the meeting. I know what happened. I was a witness. You weren't." That was how Netscape CEO Jim Barksdale reacted to an accusation of lying by John Warden, Microsoft's trial attorney, as he continued his questioning of Barksdale for the third day yesterday. The meeting referred to took place at Netscape's headquarters on 21 June 1995. Barksdale was denying that he invented the story of Microsoft's proposed browser market-sharing in order to protect the monopoly that Netscape had with its browser. Barksdale testified that Microsoft had suggested that a line be drawn to divide the market (illegally) between Internet Explorer and Netscape. Barksdale confessed that "it irritated me that [Microsoft] brought up this line" because it would preclude Netscape competing in the big market then anticipated for Windows 95. Gates has called this accusation an outrageous lie. Warden has been trying to make the most of earlier meeting between Netscape and Microsoft, pointing to an exhibit drawn up by a lawyer for Netscape that gives a chronology of meetings and contacts between Netscape and Microsoft. It omitted mention of Clark's email to Microsoft, which is hardly surprising as Clark could hardly have wished it to be know by Netscape staff that he was in contact with Microsoft in a way that made it look as though his primary concern was to protect his personal investment in Netscape. Apart from the testimony of those present, the only evidence of an improper suggestion from Microsoft appears to be a note that Marc Andreessen wrote on his laptop at the time. This is going to make it difficult for Judge Jackson to decide on the issue -- since one side is lying -- but fortunately he does not have to make a life-or-death decision on the matter because it is the pattern of behaviour that the DoJ has to establish to win the case, from a preponderance of evidence. Jackson still has to hear the cross-examination of Microsoft's witnesses about the meeting. The other event not in the chronology was a meeting that Barksdale had with Microsoft in Redmond on 2 June 1995. Barksdale described the attitude of Microsoft participants as "very friendly" and "non-threatening" in an email to Andreessen. He also wrote in his notes that Microsoft proposed an investment in Netscape if a working relationship were established. In addition, it would be easier for Microsoft to neutralise the challenge that Netscape presented if it had as much knowledge as possible of Netscape's products and plans, which is of course why Microsoft wanted a seat on Netscape's board and was willing to consider an equity investment. Netscape also needed some technology from Microsoft if there were to be collaboration: a browser-scripting engine and an Internet dialer. Barksdale said in his email to Andreessen that Microsoft was amenable to providing these. At the time, Netscape was trying to get its browser for Windows 95 finished, and it would therefore have been unwise to cross Microsoft at the time. Barksdale omitted to mention the possibility of a Microsoft investment in his testimony about the 2 June meeting, but there appears to be no Machiavellian reason for this. The significance of these omissions from the chronology is not as great as Microsoft would like it to be thought. Since both involved Microsoft, it is hard to see how their omission could be of any consequence. What is interesting is that Warden appears to be labouring over them as part of his desire to establish that there were frequent meetings and a friendly relationship with Microsoft. It looks as though Warden is aware that his client's ability to deny the Netscape market-sharing claim is strictly limited. The earlier days of questioning have served to get the case off the front pages, so that if Warden is unable to break Netscape's story, the minimum damage would be done to Microsoft's reputation. As is normal in these matters, Barksdale is being attacked all the time for remarks he has made in the past, such as having a "God-given right" to a 95 per cent share in the browser market. This is of course harmless alongside Steve Ballmer's past claims to a 100 per cent of every market. Warden asked Barksdale whether he wanted the DoJ to bring the suit "to get your biggest competitor out of the way". Barksdale replied that this was not true. It did not help Microsoft when Warden teased from Barksdale his reason for contacting the DoJ: "I think when Compaq cancelled our contract... I said, I've had enough." Warden has taken to calling Netscape "the government's ward" in an attempt to suggest that the DoJ has some special affection for Netscape: the remark was like a sound bite used in playing to juries, but there isn't one in this case. Warden was out of his depth when he tried to get Barksdale to admit that it should be grateful to Microsoft for providing a TCP/IP stack, claiming that such software had once had a $100 price tag. Barksdale contained his scorn for the lawyer's ignorance when he pointed out that software like TCP/IP was not an application, but a protocol that could be downloaded free of charge from the Internet. Another line of examination that Warden tried was to suggest that Netscape did well despite what the DoJ characterises as anti-competitive acts. Barksdale was not drawn, and suggested that the number of Navigator users was probably nearer to 25 million than the 40-65 million that Microsoft is claiming Netscape added between October 1996 and October 1997. Barksdale said that Netscape's income took a devastating downturn when Microsoft started offering its browser free of charge. Warden introduced an email from Andreessen to Barksdale in an attempt to show that Netscape had planned to give away its browser, and that therefore Microsoft's inclusion of its browser with Windows was not a predatory move, as the DoJ is suggesting. On 13 October 1994, Andreessen wrote that Navigator would be "available free for personal use via the Internet". On 24 November 1994, he wrote to an Internet newsgroup that "we are absolutely committed to giving 1.0 away for personal use. Watch us". Barksdale said that Andreessen was giving his opinion, and not speaking for the company, which made it sound as though there was some internal dissent about charging at Netscape at the time. However, Barksdale said that in a few cases, Netscape had given its browser away "free" to companies and put up other prices of products to compensate, to accommodate a few companies where internal political problems over "free" browsers had occurred. Barksdale said that the experience showed that such an approach was impracticable. Warden has so far very assiduously avoided dealing with the 21 June 1995 meeting for the first two days a point stressed by David Boies, the DoJ's trial lawyer, outside the courtroom. And has made no substantive impact so far on the matters that have been examined. Some details have been fleshed out, and some minor Netscape embarrassments uncovered, but so far Barksdale's testimony has held up to tediously detailed questioning. ® Complete Register trial coverage Click for more stories

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