MS/DOJ: MS lawyer holds sway -- for now

If the Microsoft antitrust trial could somehow be measured in inches, then the person holding the ruler at the moment is the company's attorney, John L. Warden.

Since his opening statement on Tuesday, Warden has been in control of the courtroom, taking James Barksdale, Netscape Communications chief executive officer and president, through his third day of cross-examination, moving inch-by-inch through his 127-page deposition.

Warden questioned Barksdale about company internal memoranda and the pricing policies of browsers -- and the relationship of Netscape and Microsoft.

But in the afternoon session the testimony turned heated when Warden turned attention to the fateful June 21 meeting during which Microsoft allegedly proposed dividing the market for browsers.

"I kept asking where is this line going to end (and what) keeps it from moving," said Barksdale today, under questioning.

The Netscape chief expressed fears that Microsoft, with its unlimited resources, could jeopardise his company.

"You're going to move that line anytime you want toward our economic interests," Barksdale said to Warden.

Barksdale believed that Microsoft had stepped across the line, when it decided to include its browser as part of the Windows operating system.

Warden asked Barksdale: "Your real objection is that they put the browser in the operating system -- you want it out, right?"

"Still do, still do, still do," Barksdale replied.

Through his questioning today, Warden clearly wanted to establish a record of where Microsoft and Netscape have worked together. In particular, he focused this morning on an early June meeting between the two companies several weeks prior to the alleged June 21, 1995 "market division" meeting.

Under Warden's questioning this morning, Barksdale recalled this earlier, June 3 meeting: "Mostly they [Microsoft] wanted us to work with them to add value to our products and their products." That's in sharp contrast to the later meeting, during which Barksdale alleged, Microsoft sought to split the browser market.

David Boies, the government's lead attorney, said during a break in the trial that Microsoft seemed to be saying "there's nothing out of the ordinary about these meetings".

"They're talking about meetings that took place at other times, we're not saying that they engaged in market divisions every time they talked," said Boies.

But Microsoft spokesman Mark Murray, said Barksdale's testimony undercut the government's position.

"One of the central allegations in the government's case is that Microsoft was trying to prevent Netscape from developing a browser for Windows and the facts simply don't support that," he said.

Barksdale this morning also had to refute internal company memoranda written in October, 1994, presented by Warden, in which Netscape co-founder Marc Andreessen said that the company was "absolutely committed to giving (Navigator) 1.0 away for personal use".

Microsoft has been grilling Netscape about its browser pricing plans, in an apparent effort to show the company had something akin to a de facto free browser policy. If this were so, then Microsoft could say that Netscape was not forced to giving away its browser for free by Microsoft.

Barksdale said Andreessen was giving his opinion, and not speaking for the corporation.

At this point Microsoft isn't saying when Warden will finish with Barksdale. Once Microsoft is done with its cross-examination, the government will have the opportunity to re-direct questions to the Netscape chief.

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