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Bark bites by mail, Marc start-up for sale

We at the Rumor Mill love the holiday season and even in snowless San Francisco, the seasonal spirit is palpable.

We at the Rumor Mill love the holiday season. Even in snowless San Francisco, the seasonal spirit is palpable with the scent of freshly cut fir trees strapped to emissions-spewing SUVs, the satisfying swoosh of credit cards in retail venues all over town, and the comforting arrival of my Grandma DuBaud for the duration of the winter holidays.

"Single on Christmas again, mon ami?" snapped my grandmother in her inimitable rural French Canadian twang as she burst through the front door in a clatter of suitcases and oddly shaped packages. "I'd sooner marry off Compaq Computer than an old hack like you." My Jewish friends, commiserating about their own family gatherings, reminded me of their traditional saying that only a friend can become an enemy--your relatives already are from the start.

Capitol Hill antitrust trial watchers hoping for a holiday family reunion of their own were disappointed Wednesday when browser-war veteran and former Netscape CEO Jim Barksdale was booted from the Senate Judiciary Committee's list of those testifying on the proposed settlement between Microsoft and the federal government. In his place, outside lawyers and other unknowns spoke, rousing suspicions of a holiday Microsoft snow job.

The proceedings were a far cry from the all-star lineup that appeared before the Senate three years ago, including then-Microsoft CEO Bill Gates, Sun CEO Scott McNealy and Barksdale, but antitrust warriors said Microsoft's rumored maneuvers backfired badly as Barksdale made more of an impact in absentia than he could have in the flesh.

Skinsiders and published reports say the low-key lineup was no accident. Fearing another humbling encounter with its foes and the government on national television, Microsoft is said to have threatened to boycott the hearings unless Barksdale was cut from the witness list.

"Because he was not there, his letter really framed the central issues for the committee," said one Capitol Hill Skinsider. "Because the letter was so powerful, it was in effect the leadoff witness. It was referenced by the statement of Chairman Leahy and the ranking minority member, and the first question asked of Chairman James."

In the wake of the incident, staffers are lodging vehement complaints to their senators for turning away Barksdale.

"There were a number of committee staff people who protested to their bosses and the majority staff," said one Skinformant. "They said, 'Why wouldn't we have the most obvious witness, and how does the defendant in a court case get to choose the witnesses for our committee?'"

No one disputes that the committee issued Barksdale an invitation and then rescinded it. But Microsoft vehemently denies The Wall Street Journal's assertion that Barksdale was disinvited at Microsoft's request.

"That perception is simply wrong," Microsoft representative Jim Desler told the Rumor Mill. "Any reservations we had about participating in this hearing were related to our concerns about the appropriateness of having a hearing while this settlement agreement is going through Tunney Act review"--part of the public review process.

Desler did acknowledge that Microsoft negotiated its participation in the hearings with the Senate staff.

"In the end, in the interest of being responsive to the committee and cooperating with the committee, we decided to participate," Desler said. "In the conversations, we expressed (to) the committee our desire to have the hearing be as balanced as possible."

Did Jim Barksdale's name come up at all in those discussions?

"Not that I'm directly aware of, no."

Meanwhile, on Capitol Hill, those same Senate staffers are fuming over an opposing version of events that correlates more closely with the media's. By the staffers' accounts, Microsoft issued an ultimatum that resulted in the cancellation of Barksdale's act. Then, adding insult to injury, Microsoft wound up sending, as its representative, not someone as high-profile as Bill Gates or as entertaining as Steve Ballmer, but a lawyer from an outside firm.

It's all a transparent attempt, say Redmond's adversaries, to give the hearing the lowest possible profile.

As one Capitol Hill attorney put it, "Whatever happened to subpoenas? Is Microsoft so powerful they can tell the Senate what to do?"

Because the antitrust all-stars missed out on their Washington reunion, we are happy to be able to furnish another reunion of sorts, in this column, between two thirds of the old Netscape troika Marc, Bark and Clark.

The last time we checked on the trio, the Marc Andreessen-backed Octopus, hawking a method of tying together various information sources into a single interface, was rumored to be one suction cup short of a tentacle in the funding department.

This week brings published rumors that the company--backed also by Redpoint Ventures, Ron Conway's Angel Investors and Amicus--has gone out of business.

Andreessen, Octopus CEO Steve Douty and other company executives still left at the start-up did not return the Rumor Mill's calls. But a Redpoint representative denied the company had gone out of business, and said instead that it was negotiating the sale of its core technology. An announcement was promised "relatively soon."

Redpoint went on to say that the company, having realized a few months ago that its value was in that technology, had kept engineers and cut loose much of the rest of the company.

Skintelligent analysts expressed some surprise at the software octopod's demise.

"I had heard rumors, and I had my suspicions given that they really seemed to be struggling," said Nathaniel Palmer, analyst with the Delphi Group. "But they did have some blue-chip backers and I would be surprised...if they let them fall by the wayside unless they had run up serious debts that we didn't know about." Every week I am in serious debt to you and your rumors.