Why Milton Berle would love the Microsoft trial

Each morning and afternoon, the members of the Fourth Estate flock like lemmings into the fourth-floor closet the U.S.

Each morning and afternoon, the members of the Fourth Estate flock like lemmings into the fourth-floor closet the U.S. District Court calls a press room. Our singular intent: To pick up the daily drop of documents emerging out of the Microsoft antitrust trial.

But on Wednesday I found much more compelling reading matter in the lobby.

Some of the locals were sponsoring a book sale. Rummaging through the pickings, I struck pay dirt, walking away with a fat tome by one of my all-time favorites, Mr. Milton Berle, entitled, "BS: I Love You."

Were he on hand, I'm sure Uncle Miltie would have had much fun watching the feds and Microsofties sling the aforementioned "BS" at each other.

Today it was time for America Online Inc. to find itself in the middle of this manure match. It took its place on the witness stand in the person of David Colburn, a senior vice president with the nation's biggest online service.

Who is David Colburn? He's no Jim Barksdale of Netscape, to be sure. But he was still a treat.

Microsoft's chief lawyer, John Warden, badly in need of a pick-me-up after letting the wily Barksdale off the hook, probably salivated as he watched Colburn take the oath. With Don Johnson beard, Colburn projects little of the gravitas on the stand that Barksdale did. But he nonetheless showed an amazing ability to evade Warden's well-laid traps.

This should get even more interesting Thursday, especially given Colburn's knack for getting under Warden's nerves. Responding to his interrogator's repeated "Isn't it true that ...", he offered up long-winded verbal detours that soon had Microsoft's man fuming to Judge Thomas Penfield Jackson about the witness' refusal to answer the question.

The Colburn deposition recounts events that led up to a deal between the online-services company and Microsoft. The upshot: Microsoft beat Netscape and established Internet Explorer as the preferred Web browser on the fast-growing online service. The government wants to prove that Microsoft broke the law by enforcing a contract containing illegal restrictions to freeze out Netscape.

In the court crossfire, it was easy to forget that there's a history between AOL and Microsoft. It's instructive to revisit the months leading up to the rollout of MSN, the online service Microsoft was going to launch with Windows 95. At the time, AOL was having a royal fit about MSN.

No fair, AOL cried, arguing that a Microsoft-owned online service winning a featured place on the Windows desktop would naturally become a huge success. That's when Silicon Valley lawyer Gary Reback, a back-room legal impresario and Microsoft arch-nemesis, first got into the act.

Steve Case and AOL were scared witless, and they were anxious to line up allies -- including Ann Bingaman's Justice Department, which did get involved for a while. In casting around for allies, AOL also got buddy-buddy with Netscape and discussed possible partnerships. In court, Microsoft offered a different spin, saying the two companies actually discussed a quid pro quo -- AOL would give on creating its own browser if Netcape promised to give up any ambitions to create its own online service.

Enter the time warp. In the mid- 1990s, AOL was hardly the juggernaut it is in 1998. Back then, the company was much smaller and still contending with tough competition from the likes of CompuServe, Prodigy, AT&T -- and then Microsoft's MSN. On top of that, the service was subject to embarrassing service outages caused by spotty infrastructure.

Many of the "experts" -- analysts and press alike -- predicted a grim future for AOL. How could Microsoft fail to dominate a market in which its entry would be endowed with such an incredible advantage?

On paper, MSN looked like a lead pipe cinch. But acting more like AT&T than Microsoft, Mr. Bill's boys were spectacularly inept at running an online service. In time, some bright bulb in Redmond figured out that it made more sense to concentrate on creating software and less on creating content.

Back to the present, Colburn won't be an easy nut to crack. He's a lawyer -- I won't hold that against him. He works the 'just-the-facts-ma'am' cop routine for maximum effect. He hails from Milwaukee but sounds like he came straight out of a Chicago ward ("Gee, we think it was the one-armed guy ...")

But Warden scored points with the help of a few choice AOL e-mails in which company execs opined the technical and marketing benefits of choosing Microsoft over Netscape. Their conclusion: Microsoft simply offered a better deal.

All of which would have made Uncle Miltie laugh. Based on AOL's own conflicting version of events, it's not just Microsoft and the DOJ that are slinging the manure in this trial.


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