By Dan Jones in Washington
Microsoft Corp witness Dan Rosen was forced into a humiliating retreat yesterday when lead government attorney David Boies accused him of making up his testimony on the stand and went on to prove he had done just that. The exchange, a new nadir for the unfortunate general manager, began when Boies asked when Rosen had first seen a copy of Netscape Communication Corp’s browser software. Rosen said he had received a copy in July 1995, after the so-called market split meeting of June 21. Boise produced an email from Rosen to Microsoft’s Tom Johnston in which Rosen asked if he could borrow or copy the Netscape Win95 new client they gave us. The email was dated May 11, 1995. A flustered Rosen backtracked saying that Johnston had a beta copy of the software, which wouldn’t load properly. According to Rosen, Netscape had given Johnston a copy of the software at a meeting in early May. Boies then stunned the court by charging, You don’t remember that, do you sir? You’re just making that up right now, aren’t you? No, no, I remember, insisted Rosen. Boies then persisted in asking if the witness remembered when he had received the software – April or May. Rosen said he had got a copy of the browser in May. Boies then produced an email from Rosen that asked, Do you remember who took the Netscape Win95 browser that they gave us during our last meeting? I’d like to get a copy. The email was dated April 27, 1995. To the accompaniment of a laughing courtroom of spectators, a shamefaced Rosen admitted, I stand corrected. To complete his humiliation, Boies asked Rosen if he had been present at the meeting and Rosen had to admit that he had been. Boies’ demolition job on the Microsoft witness was so complete that when Microsoft counsel Michael Lacovara stepped up for his final examination of Rosen, Judge Jackson commented acidly, It’s always inspiring to watch young people embark on heroic endeavors.
The infamous meeting
The Microsoft cross-examination of Rosen centered on what had really happened at the June 21, 1995 meeting, which Rosen had said was nothing more than a straight-ahead business meeting. He claimed that the gist of the meeting was that two Microsoft engineers went to evangelize Windows 95 internet technologies and get them [Netscape] to use them. Rosen said that the technologies Microsoft had wanted Netscape to use were the internet platform services that had been built into Windows 95 – TCP/IP support, HTTP address support, internet shortcuts and a HTML rendering engine. He claimed that Netscape’s Jim Barksdale had told him on June 2, 1995 that the Netscape software wasn’t intended to become a platform. The Microsoft defense also brought forward comments by Netscape’s Marc Andreesen to the effect that the company did not want to be dicking around with low-end stuff when it was busy developing software. Rosen claimed that even after the June 21 meeting – where Netscape had refused to use all but one of Microsoft’s aforementioned internet technologies – Microsoft had still given Netscape full development support. He said that Microsoft had given Netscape privileged treatment, sending the company software development kits and offering technical support. When Boies returned for his final examination of Rosen, he asked if Redmond had offered Netscape inducements to use Microsoft’s internet platform – that is, the four internet technologies integrated into Windows 95. Rosen admitted that, I think it’s fair to say that we would offer them inducements if they would adopt our platform. However, he denied that Microsoft had offered Netscape help with its server products if it would adopt the Microsoft platform. Microsoft’s counsel finished Rosen’s time on the witness stand with one final effort to restore some credibility to their man. Marc Andreesen had suggested Rosen for the CEO post at start-up Terisa in October of 1995. The defense asked, Do you think that if Mr Andreesen believed you’d engaged in illegal activity he’d have recommended you for the position? Rosen said no. This last- ditch attempt, however, seemed much too little, much too late.
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