Trial of the Century Day Two: Microsoft comes out swinging

Microsoft chief litigator John Warden opened day two of Microsoft's historic antitrust trial with a stinging attack on the government and itscase against the software giant. Warden said that the evidence will showMicrosoft is innocent, while offering no concrete examples of that as theDOJ did when it presented its side on Monday. Warden did, however, explainhow Microsoft's defense would ride on a more open display of the supposedlydamning internal memos and emails the DOJ is using as evidence. For example, the DOJ used a Bill Gates email to Intel's then-CEO Andrew Groveto prove that Microsoft was trying to force Intel out of the Webmultimedia market. A complete version of the email, however, shows thatGates was actually happy about Intel's technology and was only concernedabout possible incompatibilities with Windows 95. The DOJ "snippet" ofthe email suggested that Gates was attempting to squash the technology.

"The government's case is long on rhetoric and short on substance," Wardensaid. "The government's effort to demonize Bill Gates in [its] opening statement is emblematic of this approach."

Warden also blasted the government for expanding the case way beyond theoriginal lawsuit, which was simply an issue about the tying of InternetExplorer with Windows.

"From recent allegations of the government, you would never know the central role that that original allegation [the bundling of Windows and IE]played," he said.

In the afternoon, Warden was able to take on Netscape CEO Jim Barksdale,whose direct testimony was submitted earlier in the form of a 127 pagedocument that was released yesterday. Warden's cross-examination was brutal, covering only the first 13 pages of that testimony. When Barksdaleclaimed that it was the DOJ that contacted Netscape first about Microsoft'salleged anti-competitive behavior, Warden produced a letter from Netscape'schief counsel that preceded any contact the DOJ made.

"Isn't it a fact that Netscape was in regular communications with the DOJat that time [mid-1995]?" Warden asked.

"Not that I am aware of. We communicated with them when asked," Barksdaleresponded.

"Wasn't it true that you were lobbying the DOJ to go after Microsoft?" Warden countered?

Barksdale said he then suggested that the DOJ look into the AOL matter, inwhich Microsoft's Web browser was chosen over Netscape. Microsoft says thisis because Netscape's browser wasn't (and still isn't, over two years later) componentized, and therefore couldn't easily be integrated into theAOL user interface.

One common myth that Warden attempted to prove wrong was that Microsoftthreatened to end Compaq's license for Windows 95 because the systems maker wanted to include Netscape Navigator. Netscape claims that this movecost the company millions of dollars. Actually, Compaq wanted to remove theicon for Internet Explorer from Windows, a clear violation of its licenseagreement. The problem had nothing to do with Netscape and Microsoft, in fact, had no issue with the company including Netscape's browser as well.Warden tried to get Barksdale to admit that he knew this was the real storybut Barksdale repeatedly dodged the question.

Barksdale also painted an ugly picture of the self-styled programmer savantMarc Andreessen, who has wrongly taken credit for inventing the Web browserin the past. Andreessen is infamous for his comments about Microsoft andWindows: Barksdale described him as a "young man" who has repeatedly embarrassed Netscape with his loose comments. Andreessen, for example, referred to Windows as a "collection of poorly debugged device drivers."Barksdale said that comment was "a joke [when he said it] and a joke now."

Warden also described how Netscape gave away its Web browser until it obtained an 87% marketshare. Then the company began charging customers forthe product. Microsoft, in contrast, has always provided its Web browserfor free.

Barksdale will take the stand again tomorrow, but day two was clearly a bigwin for Microsoft.