Microsoft Trial Update: Microsoft Drags Out Barksdale Questioning - InformationWeek

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Microsoft Trial Update: Microsoft Drags Out Barksdale Questioning

Keeping a government witness on the stand for a long time - as Microsoft Corp.'s attorneys have done with Netscape Communications Corp. Chief Executive James Barksdale - is a common strategy among trial lawyers, a former state attorney general said Thursday.

"Microsoft is trying to make this trial a fight between Netscape and Microsoft, but it's not," said James Tierney, a former Maine attorney general who now represents technology companies. "It's a fight between Microsoft and the federal government and 20 states, and Jim Barksdale is just a witness."

On Thursday, Microsoft attorney John Warden questioned Barksdale for the third consecutive day. "He would keep him on the stand for two weeks if he could," Tierney said, because Microsoft wants to slow down the case.

Warden has tried to demonstrate that Netscape competed and prospered, despite what the government charges are anti-competitive practices. "Microsoft continues to pile up information and evidence to refute government charges," said Microsoft spokesman Mark Murray.

According to Murray, Barksdale's answers and internal Netscape documents support Microsoft's contention that, despite offering its Internet Explorer browser for free with Windows, Netscape added anywhere from 40 million to 65 million Navigator users between October 1996 and October 1997.

During that period, Microsoft also had cross-promotional deals with computer manufacturers and ISPs, including one with America Online that is central to the government's case.

"There is no way to accurately tell the number of users," Barksdale testified in court Thursday morning, because many people have copies but don't use them. It's also difficult to distinguish between existing users who download browser updates and new users downloading the browser for the first time. Barksdale put the number of Navigator users closer to 25 million.

he Netscape CEO also said Internet Explorer is truly integrated into the Windows operating system, admitting that the browser cannot be stripped out without rewriting some Windows code.

David Boies, the lead attorney for the Justice Department, said the case was moving slower than expected. The government wants to focus on a June 21, 1995 meeting between Microsoft and Netscape officials, in which Microsoft allegedly threatened to crush Netscape if it did not agree to divide the browser market with Microsoft.

During the three days of questioning so far, Boies said, Warden has steered the testimony away from that meeting. Instead, the Microsoft attorney has methodically pored over details of E-mail, documents, and meetings between the two companies showing a cooperative and working relationship. Warden is trying to show the June 21 meeting was simply "a continuation of ongoing negotiations," said Netscape attorney Christine Varney.

For Justice to prevail in this antitrust case, it must prove its case "by a preponderance of evidence," said attorney Tierney. It does not have to be successful in every claim of anti-competitive behavior against Netscape, AOL, Apple, or Intel.

"If the case were a football field, Justice would have to carry the ball 51 yards," he added.

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