MS trial: How truth is lighter than air

For the second consecutive day, Microsoft's lead defense attorney failed to shake the testimony of David Colburn, a vice president at America Online Inc., who may go down in history as the Anthony Ulasewicz of the Microsoft antitrust case.

Ulasewicz, for anyone too young to remember Watergate, was the New York City cop-turned bagman whose Damon Runyon testimony before a Senate investigating committee became the source of much hilarity during the summer of 1973.

Bringing down the house
Colburn, who is also a lawyer, repeatedly brought down the house, injecting some unexpected levity to Judge Thomas Penfield Jackson's courtroom. The Microsoft lawyers sat there stone-faced, but the rest of the crowd had a rocking good time watching Colburn muffle each of Warden's missiles in a fog of wonderfully befuddling qualifications, amplifications and obfuscations.

Each time Microsoft's pit bull pointed him to a memo quoting one or another AOL executive about Netscape and demanded a simple yes or no, Colburn took his interrogator on a transcontinental detour that left Warden belching smoke.

Even though he may not look the part, Colburn is a sharpie. Time and again, he refused to hand Warden what he sought -- even when presented with a memo whose author clearly rated Microsoft over Netscape.

And we quote ...
What do you make of that? Warden thundered at him.

I wouldn't make anything of it, Colburn said. The words speak for themselves.

So, when you receive a memo, you don't use your brain to interpret what it means? Warden wanted to know.

When this went nowhere, Warden tried another tack.

Isn't it true, he pressed, that AOL users have unfettered access to use Netscape Navigator?

Yes, Colburn said. If they can figure out how to get to it.

That one brought down the house -- including the good judge, who only gets this animated when the clock strikes 12:30 and he breaks for lunch. As for Colburn, he betrayed no emotion with a face that bore an endearing resemblance to the cartoon character Deputy Dog.

Not a complete loss
It wasn't a complete loss for Microsoft, however. Warden made hay when he showed AOL to be as untrustworthy as the next guy. Seems that even after the company had salted away a deal with Microsoft, AOL was still sniffing around Netscape -- just in case things didn't work out.

Colburn's explanation: Hey, it's business, and you need to plan your options. Machiavelli would have appreciated that one.

The brutal reality is that AOL chose Microsoft because it was an offer too good to refuse.

AOL was looking to extend its reach. How could it turn down a premium place on the Windows desktop? Don't forget that Netscape also blew this deal by being way late to market with a Web browser that AOL could easily integrate with its own software.

Warden entered evidence into the record to demonstrate that Netscape treated AOL's requests with little urgency. That's an understatement. Netscape simply didn't feel the need to react promptly.

At the time, the company was riding the wave of Internet mania. And wasn't the Web going to render proprietary online services such as AOL obsolete anyway?

So it went.

If there's one truth that has emerged from this trial, it's this: Even if Microsoft was a bully, Netscape still had itself to blame.

Indeed, the issues AOL may have had with Netscape's browser were not isolated. Netscape developed a poor reputation among third-party software developers, who sought to integrate the company's Navigator browser with their applications.

A rap that sticks
Some say it was arrogance on Netscape's part. Though things have since improved, it's a rap that sticks to this day.

In fairness, the record should note that Netscape, founded in 1993, was then a very young company, growing like topsy. More often than not, software developers didn't get the help they needed because Netscape was just too disorganized.

But that's still a big reason why AOL went to Microsoft.

Listening between the lines to what Colburn said about Microsoft, you have to wonder about AOL, too.

Warden played a video late in the day showing AOL CEO Steve Case bestowing sloppy kisses on Microsoft at a conference in 1996. But based on the evidence unfolding in court, it's clear AOL has little love for Microsoft. It continued to play for Netscape's favor -- even after it picked Microsoft as its main ally in the browser wars.

But beyond that, not much else is clear in this trial. Wily witnesses such Colburn, with his very lawyerly qualifications and legerdemain, are seeing to that.

And they're succeeding in creating a body of evidence that for Microsoft's Warden is as weighty as a helium-filled balloon.