By Rachel Chalmers
A bomb scare interrupted Microsoft Corp’s deposition of Sun Microsystems Inc’s Mike Popov last Friday, April 30 1990. The building containing San Francisco’s US District Courthouse had to be evacuated for an hour between 11am and noon. The deposition resumed at 12.30pm – but even before the bomb threat was phoned in, the press had been asked to leave. Sun had exercised its right to have parts of the deposition closed to the public on the grounds of commercial sensitivity.
Over the source of its antitrust fight against the Department of Justice and 19 states, Microsoft has established itself as the master of courtroom-corridor spin. Sullivan and Cromwell attorney Rick Pepperman, who represented the company on Friday, is no exception to this rule. Even before the press were ushered into the courtroom, Pepperman had made it clear that the issue is Sun’s plans for the future of web browsing.
Pepperman is interested in Sun’s November 1998 Strategic Development and Marketing Agreement (SDMA) with America Online Inc and AOL subsidiary, Netscape. Microsoft executives imply that the three companies plan to work together to develop a Java-based browser, able to provide access to AOL services through all sorts of networked devices. This, after all, might be construed as competition for Microsoft.
A genial, almost deferential Pepperman walked Sun’s soft-spoken Popov through some easy foundation questions. Those squashed into the crowded press pens learned that Popov earned his Bachelor of Science from Michigan State in 1971, and that he has been Sun’s vice-president and COO of staff operations for one year. Then Pepperman introduced the SDMA.
This document says that AOL and Sun have agreed to collaboratively develop, market and sell client and server software, including a Java environment to enable AOL services to be accessed through a variety of devices. Is that client software based on web browsing technologies? asked Pepperman. Sun’s counsel leaped to object, but eventually Popov had to answer: My understanding is that the client software will include some browsing functionality as well.
Next Pepperman tackled Popov on the business objectives listed in the SDMA. One of these said that the alliance intends to: sustain and grow leadership in the browser market. Let me put that in context, said Popov, those objectives were done at the end of the negotiations. Both sides authored objectives; some were authored by AOL, some by Sun and some were shared. We both accept the objectives but the sponsorship is different. The substance of the agreement is that browser or client software is AOL’s domain. In that respect, they authored the objective.
In other words, if Microsoft wants to fight about browsers, it can pick its fight with AOL; specifically, with AOL chief Steve Case, who will be interviewed by Microsoft’s lawyers next Wednesday, May 5. Any further questioning from Sun’s already- antsy lawyers was deemed too sensitive to be held in open session, so that by 10.30am the courtroom was closed to the press.
Truncated as it was, the public portion of the deposition did make one or two things clear. One is that Microsoft believes (or wishes to give the impression that it believes) that the merger with AOL and the alliance with Sun will create a genuine threat to Microsoft on the client side. Another is that Sun doesn’t want to talk about the details of the software roadmap outlined in the SDMA. Frustrating as it is for journalists to be denied access to the fun, it must be even more galling for Sun to have to divulge its product development plans to its most bitter rival.
