MS/DOJ: MS witness Rosen again caught out

The testimony of a Microsoft witness yesterday on a key meeting with Netscape Communications ran about as smoothly as the first version of almost any software product: it had bugs. For the second time in as many days, Daniel Rosen, Microsoft's general manager of new technology, was forced to admit an embarrassing inconsistency when his testimony didn't match his e-mail.

The testimony of a Microsoft witness yesterday on a key meeting with Netscape Communications ran about as smoothly as the first version of almost any software product: it had bugs.

For the second time in as many days, Daniel Rosen, Microsoft's general manager of new technology, was forced to admit an embarrassing inconsistency when his testimony didn't match his e-mail.

Rosen was the most senior Microsoft official attending a June 21, 1995 meeting at Netscape -- a meeting at which the government alleges Microsoft made an illegal attempt to divide the browser market with Netscape.

In a court exchange yesterday, David Boies, the lead government attorney, asked Rosen when he had first received a copy of a browser Netscape was developing for the yet-to-be-released Windows 95 operating system. Rosen said it was in July 1995.

Boies quickly produced a memorandum from Rosen to another Microsoft employee, Tom Johnston, written two months earlier on May 11, 1995, which said "Can I borrow/copy the Netscape Win95 new client they gave us?"

Does "that refresh your recollection?" asked Boies. Rosen then explained that the Netscape software was a beta version that didn't install. He also said that Johnston received the software at a meeting he had had at Netscape in early May.

But Boies acted with incredulity at Rosen's recollection.

"You don't remember that, sir," said Boies. "You're just making that up."

Boies then produced another memo written by Rosen on April 27, 1995 in which Rosen asked another Microsoft employee if he remembered "who took the Netscape Win95 browser that they gave us during our last meeting."

"I stand corrected," Rosen blurted out.

Outside of court, William Neukom, Microsoft's vice president of legal affairs, said the questioning on the memorandum was merely an "attempt to nibble at the outer edges" of Rosen's testimony.

But Boies said it was just another example of inconsistent testimony by a witness "in an area that is very critical to Microsoft."

Rosen completed his testimony today. And with the conclusion of his testimony, Judge Thomas Penfield Jackson has now heard two conflicting versions of a June 21, 1995 meeting at Netscape.

Rosen spent most of the morning being led through a series of questions by Microsoft attorney Michael Lacovara, during his redirect.

Rosen said he went to Netscape in 1995 to explain the set of technologies Microsoft was embedding in the Windows 95 operating system, including TCP/IP support, HTTP support and rendering and Internet Shortcuts, Microsoft's method for linking objects either from the hard drive or network to the desktop.

Rosen said Microsoft was interested in seeing whether Netscape wanted to adopt these underlying technologies. Netscape agreed to use only one of them, Internet Shortcuts.

In his own draft notes following the meeting, Rosen said he didn't think Netscape would become a platform threat. "I do not think they have the intention of competing with us in defining a platform." He believed Netscape would instead focus on adding value on top of the platform. "They probably think they can be more nimble and focused then us," he wrote.

Rosen said there was also no effort to discourage Netscape from writing software for the Windows 95 platform -- as the government has alleged.

But during his cross-examination and his re-cross today, Boies tried to get Rosen to square his relatively paternal view of Netscape with testimony and e-mails from other Microsoft employees, such as Thomas Reardon's June 1, 1995, statement: "Move Netscape out of Win32/Win 95, avoid battling them in the next year."

Boies has argued that Microsoft officials clearly saw Netscape as a platform threat.

Rosen acknowledged that Microsoft was working on Netscape not to compete with them, "in the sense that we wanted them to use our underlying technologies."

Rosen said he did not see Netscape as a threat until it adopted Java technologies.

(Thibodeau is a senior writer for Computerworld.)

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