WASHINGTON -- Antitrust officials cut short the cross-examination of a key Microsoft witness following a court session in which he offered a version of events almost entirely at odds with those of earlier company witnesses.
Although Microsoft vice presidents Brad Chase and Paul Maritz earlier said they thought Netscape's Navigator was a "threat" to Microsoft'shegemony over the PC operating system market, Vice President Daniel Rosen said he never thought Netscape's browser was a threat. He was sure of this, he said, for one simple reason: Netscape executives told him so.
Microsoft Spokesman Mark Murray called Daniel Rosen's time on the stand in the landmark antitrust trial "a non-event." But Justice Department attorney David Boies fairly crowed on federal courthouse steps following the interrogation. Rosen, he said, repeatedly qualified internal memos and e-mails that placed him at the center of plans to force Netscape from the browser market.
"The extent to which this witness contradicted his own deposition, the depositions of others and other facts already established in this case is clear," Boies said. "It's always useful to get additional evidence on your side, and I think we got additional evidence on our side."
Key meeting
Part of the government's case rests on allegations that Microsoft broke antitrust laws when Rosen and others allegedly offered to divide the market for Internet browser software with Netscape at a June 21, 1995 meeting in San Jose, Calif. When that failed, antitrust enforcers say, Microsoft tried to kill off Netscape through abuse of its "monopoly power" over the market for PC operating systems.
Netscape CEO James Barksdale and co-founder Marc Andreessen testified at length over the meeting earlier in the trial. But rather than trying to tear down Rosen's testimony on the meeting directly, Boies quizzed Rosen on more than a dozen separate documents that seemingly showed a Microsoft bent on forcing Netscape from the market.
Rosen laid out his views of the marketplace for Internet software in a May 15, 1995 memo, which included a heading that read: "Threat of another company evolving the client and server using non-Microsoft protocols."
"Microsoft currently controls the place and the evolution of the desktop. The threat of another company (Netscape has been mentioned by many) to use their WWW browser as an evolution base could threaten a considerable portion of Microsoft's revenue," Rosen wrote. "At all costs we must insure that we do not allow another company to control the client evolution, even if it means a less aggressive position in other segments (e.g. servers). Our strategy to do this is currently a matter of some dispute."
Boies asked Rosen if he believed what he had written.
"No sir," Rosen replied simply. "This is a draft document I never issued." He never sent the e-mail, he explained, since it was riddled with errors and incomplete.
The story changes
Boies pointed to the e-mail's timestamp, which read "Sent: May 15, 1995." He wondered how no one received the e-mail even though Rosen had placed 12 separate names in the document's address lines.
Boies kept digging. When Rosen wrote Microsoft needed to keep others from controlling the "client evolution," didn't he mean Netscape's browser? "In this context," Rosen replied, "it did not."
Boies returned to the document -- indirectly -- later in the afternoon. This time the memo showed up in a list of e-mails culled from the files of Microsoft executive Ben Slivka, one of the 12 executives mentioned.
Faced with proof he had sent the e-mail, Rosen backed away from his earlier assertion. "At the very least, I sent it to Mr. Slivka," he said.
Rosen even ventured to say Microsoft Chairman Bill Gates was wrong about the importance of Netscape to Microsoft's business plans. In a now-famous May, 1995 memo entitled "The Internet Tidal Wave," Gates beat the gong over the Silicon Valley upstart, warning it could render Windows irrelevant.
"A new competitor born on the Internet is Netscape," Gates wrote. "Their browser is dominant, with 70 percent usage share, allowing them to determine which network extensions will catch on. They are pursuing a multi-platform strategy where they move the key (interfaces) into the client to commoditize the underlying operating system."
Rosen explained: "I remember thinking at the time I read this that Bill was probably wrong...Netscape didn't intend to compete in this way." For a time, he said, Netscape wanted to use the guts of Microsoft's own browser to produce a browser of their own. In any case, he said, the paragraph Boies cited was only the seventh of eight in a section subtitled "competition." Other companies such as Sun Microsystems Inc. and Silicon Graphics Inc. played more prominently, he said.
Judge reacts
At times throughout the day, Judge Thomas Penfield Jackson appeared outwardly incredulous. Sometimes shaking his head, at other times grimacing, his impatience seemingly reached its limit near mid-afternoon, when Boies grilled Rosen about a June 22, 1995 e-mail in which he described the meeting at which he allegedly made the market-division offer.
Rosen listed four goals Microsoft had going into the meeting. The company wanted to "establish Microsoft ownership of the Internet client platform for Win95," he wrote. Boies tried to make Rosen say that meant Microsoft wanted the browser market for itself. But at Microsoft, Rosen explained, "ownership" meant people would do their best and follow through on what they promised.
"Ownership means delivering on something you promised?" Jackson asked. Rosen said it did.
Judge Jackson rolled his eyes and stared at the ceiling.
