Netscape exec on IE APIs, and why hiding it isn't enough

Judge Colleen Kollar-Kottelly yesterday ruled out more trial material as "hearsay," and suggested both parties try to address one another's allegations more directly. Former Netscape CEO Jim Barksdale's contribution on venture capital (a claim that it was extremely difficult for companies going up against Microsoft to get funding) was the subject of a long wrangle, on the grounds that he wouldn't say which of his contacts said this was the case.

The courts, clearly, aren't prepared to accept otherwise unsupported statements on the grounds that they're the bleeding obvious. The hearsay matter occurred in the testimony of RealNetworks VP David Richards, who had claimed that Microsoft compelled some OEMs not to install RealPlayer. The judge pointed out that if, say, IBM did not renew a contract with RealNetworks then the reason for that non-renewal should come from IBM.

This is sort of fair enough, and perhaps the States should have witnesses to give sufficient non-hearsay corroboration of allegations, but that would surely amount to a lot of witnesses, if that is they could be induced to testify, and there can be problems with this. In the previous stages of the trial, for example, there was in several instances a marked difference between the evidence of the people on the ground in, say, Compaq and that of the top-level execs who did the big strategic deals with Microsoft. Some OEMs, it seems to us, may find it inexpedient to go around accusing Microsoft of being bullies.

Microsoft's attorneys have meanwhile been pouncing at frequent intervals in an attempt to have testimony struck. Barksdale was jumped on yesterday because he wasn't an OEM, because he hasn't been in the browser business since 1999, because he's not a software engineer, because he hasn't used XP, and for much else. Not all of this sticks, but the intention to whittle away at the evidence and to get as much as possible ruled out is clear.

Barksdale himself, although tedious on the subject of venture capital, contributed a clear and cogent explanation of why simply hiding IE wasn't good enough. He explained the progression from IE being a standalone product through enforced bundling and prohibition of removal, to integration/commingling.

By making IE the product people had to have and Navigator the optional one, Microsoft "reduced the ability of developers, whom we had by then tens of thousands of, trying to develop for our products ability to get true cross-platform compatibility.

"So, they shifted over to the APIs of the Internet Explorer. And as that began to go, it became reinforcing, self-reinforcing, and it caused a dramatic drop in the value of our business proposition to the OEMs." Essentially, Microsoft has shifted the API playing field to Netscape's detriment. Trying to shift it back now would as Microsoft argues cause substantial problems for developers who've been writing in the expectation that IE APIs are going to be there, but that is not necessarily a good reason for doing nothing.

Here's Barskdale again, on the MS-DoJ RPFJ:

"All this does is hide the product. It's still there.

"And several things are bad about that.

"One is that its APIs are still exposed. Developers can still develop to that, which means you have not reduced the application barrier to entry.

"Number two. Because it's still there and waiting to be raised from the dead, like Lazarus, any one of these other exceptions about invoking or automatically going across the desktop and taken off other products and then bringing this one up, or the issue about Active X controls where there's some claimed technical advantage, it will rise up, do its function, despite what the user may want, even though it's been hidden or, quote, removed. The term removed does not -- is not synonymous with deleted, destroyed, out of here, not on my disk drive any more."

Allowing IE to be hidden and giving OEMs the ability to choose rival middleware in its stead is therefore not a remedy to the offence, because Microsoft would still have vastly increased the size of the API territory it as staked out for itself. Well done Jim, we take it all back about your being boring. Well, some of it. ®