Microsoft Corp. said it will ask for dismissal of the ongoing government antitrust suit against it in the wake of Tuesday's announcement that America Online Inc. will go through with its purchase of Netscape Communications Corp.
At the same time, Microsoft Senior Vice President for Law and Corporate Affairs Bill Neukom called on the coalition of the U.S. Justice Department, 20 states and the District of Columbia to drop the case. "The AOL/Netscape/Sun deal shows how the competitive landscape in this industry can change overnight, making government regulation unnecessary and counter-productive," Neukom said. "The government should drop this case and stop wasting taxpayer dollars, and let the industry compete in the marketplace with technology and customer service."
Neukom said he would move for dismissal once it has finished cross-examination of government witnesses. Government antitrust officials rejected the request outright.
"The government has no intention of withdrawing the case and Microsoft knows that," said David Boies, lead counsel for the DoJ. Added Stephen Houck, lead attorney for the states and the District of Columbia: "We have established beyond peradventure of doubt that Microsoft has monopoly power and has engaged in a variety of acts that have made it impossible for others to compete with it."
The verbal sparring marked the second day of spin control over the AOL-Netscape-Sun deal, which is expected to put Netscape -- the sole significant competitor to Microsoft's Internet Explorer browser -- under the control of the world's largest online and Internet service. In addition, AOL will pick up Netscape's hugely popular Internet portal business and its corporate software business, which supplies a large number of the world's commercial Internet sites as well as the market for internal corporate networks. Inside the courtroom, things were slightly less dramatic.
As he had for the past several days, Microsoft lawyer Michael Lacovara continued to pick at the 90 pages of direct testimony submitted last week by former DoJ economist Frederick Warren-Boulton. Warren-Boulton asserts that Microsoft's control of the operating system that appears on some 95 percent of new PCs is an insurmountable barrier to entry for would-be challengers in the operating system market.
To make his point, Warren-Boulton had written that computing giant IBM, a maker of "competitive software" had tried and failed to compete with Microsoft's Windows 95 with its OS/2. But IBM has also been notable for its failure to produce a wide variety of software programs that can hold their own in the PC market. Lacovara asked Warren-Boulton to name one "competitive" IBM program other than OS/2. Warren-Boulton said he could not.
Likewise, Lacovara asked Warren-Boulton how many different programming interfaces were included in Linux, an operating system which Microsoft has at times positioned as a competitor to Windows. Warren-Boulton, who previously said it lacked interfaces needed to be competitive with Windows, said he could not. Lacovara challenged Warren-Boulton: "What makes you competent" to say Linux cannot compete with Windows, he demanded. "Microsoft documents and testimony by others that say it is impossible to develop a set of (interfaces) that are compatible with Windows," he shot back. "If the people at (Linux developer) Caldera (Inc.) tell me it is impossible, I don't think I necessarily need to know how many APIs are exposed by Linux."
In its original complaint against Microsoft Corp. last May, government attorneys said the company wanted to eliminate competition from that company's browser since it posed a "platform" for which software developers could write applications regardless of the operating system it ran on. Likewise, the Java technology included with it held out the promise -- still not entirely fulfilled -- of programs that could be written once and then run on almost any operating system.
Warren-Boulton said in written testimony that Microsoft had tried to stop the Java movement by producing versions of it that unfairly encouraged developers to write "Java" applications that, in fact, ran only on Windows. Microsoft has countered their version of Java is simply better since it takes advantage of unique abilities of Windows.
Lacovara pressed Warren-Boulton to concede that Microsoft had simply written its version of Java to run better and not to undermine the Java philosophy. After all, Lacovara insisted, Microsoft's Java would always run better on Windows since Java used only the most basic functions common to all operating systems.
Warren-Boulton said his argument made no sense, since the very premise of Java was that programs written with it would run almost anywhere, unlike Microsoft's "Windows only" approach to Java. What's more he said, it was clear enough Java wasn't doomed to run slowly forever. Otherwise, he said, "it's hard to see why companies are expending so much effort on it and Microsoft is so concerned about it."
The trial is now in recess for the Thanksgiving holiday and resumes Monday. As the day's questioning was ending, however, Judge Thomas Penfield Jackson told Lacovara he had only until the end of Monday to finish Warren-Boulton. Microsoft has so far taken six weeks to cross-examine only seven of the government's 14 scheduled witnesses. The government estimates it will need one month to cross-examine Microsoft's witnesses.
James Gosling, a vice president at Sun and a creator of the Java programming language, is expected to take the stand next.