By John Abbott
Microsoft Corp attempted to show that Sun Microsystems Inc and Netscape Communications Corp had agreed not to compete with each other in the desktop browser marketplace at the Washington antitrust trial yesterday. Microsoft lawyers confronted government witness James Gosling with testimony from Bill Joy, who apparently confirmed that Sun had agreed not to sell its HotJava browser on the commercial market in return for Netscape licensing Java in 1995. Joy, one of the founders of Sun who was involved in the licensing agreements with Netscape in the early days, made the supposed admission as part of a deposition for Sun’s case against Microsoft in the San Jose courts. But Judge Thomas Penfield Jackson would not allow the testimony onto the official record as, under a prior agreement, Microsoft itself had sought to block the government from using similar material from the same case. Gosling was allowed to privately read the material to refresh his memory about any such agreement. He said he did not recall any agreement to back away from browsers as a result of any deal with Netscape. Microsoft further backed up its claims by producing an undated email written by Karen Oliphant, a lower-level JavaSoft employee. Oliphant’s email included the JavaSoft goal – Get JS and NSCP onto one browser. In August 1997, Netscape and Sun issued a press release describing their plans to work together on a 100% pure Java version of Navigator, a project that became known as Javagator, but which was subsequently canceled. Gosling pointed out that Sun’s Hot Java browser had never been commercially released, and so never competed with Netscape in the first place. He said the decision not to bring the product to market had been based on the fact that Sun could not find a sensible business model for releasing the product, given the fact that, since Microsoft was not charging for Explorer, the market price for browsers was effectively zero. Speaking on the court steps Thursday evening, Microsoft spokesman Mark Murray claimed the testimony showed that such collaborative deals were commonplace in the software industry, and Microsoft was only following common practice when striking similar deals itself. But government lead attorney David Boies said there were four essential differences between any deal that might have been signed between Sun and Netscape and the earlier Microsoft-Netscape discussions that are part of the Government’s antitrust case. First, Microsoft holds a monopoly position. Second, there is evidence of clear discussions from top Microsoft executives to Netscape proposing non-competition. No evidence of a Sun-Netscape agreement has been presented to the court. Third, there is evidence of threats from Microsoft, saying that Netscape would be ‘crushed’ if it didn’t agree. And fourth, Netscape and Microsoft were the two primary browser competitors. Sun had no share of the browser market. Boies added that, in any case, an everybody is doing it so it’s ok defense would not get Microsoft off the hook.
