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Subpoena tips Microsoft defense

In asking for materials used in a forthcoming book about the browser war, Microsoft also raises First Amendment concerns.

In asking a federal judge to order two professors to turn over materials used in a forthcoming book about the browser war, Microsoft today tipped the hand it is likely to play in defending itself against a landmark antitrust suit that's set to begin in two weeks.

Microsoft is seeking tapes and notes that Michael Cusumano of the Massachusetts Institute of Technology and David Yoffie of Harvard University made when researching their upcoming book, to be called Competing on Internet Time: Lessons from Netscape and the Battle with Microsoft, arguing that the information is "fatal" to the prosecutors' case.

The company first sought the material in mid-September, but the professors refused to hand it over, asserting that the "academic freedom" provided by the First Amendment immunizes research materials from civil subpoenas. Today's brief makes a strong case for why the scholars should be required to turn over their research materials.

In lawsuits filed in May, the Justice Department and 20 states claim that Microsoft used its dominant Windows position to compete unfairly against Netscape Communications and other companies.

Prosecutors "contend that Microsoft 'effectively foreclosed' the ability of Netscape to supply its Web browsing software to consumers through various channels of distribution," Microsoft argued in today's brief. "In their interview with Messrs. Cusumano and Yoffie, Netscape personnel candidly concede that many of Netscape's problems are of its own creation, not the result of any allegedly anticompetitive actions taken by Microsoft."

The brief goes on to argue that under both federal and state laws the professors have no "scholar's privilege" to refuse Microsoft's subpoena. For one thing, the attorneys argue, the professors have no anonymous sources to protect, since the book identifies by name the Netscape employees who provided the information. One of the most compelling reasons for courts to block the release of unpublished research materials is to protect unnamed informants.

Microsoft also claims that any privilege the scholars may have is superseded by "Microsoft's compelling need for the information ... which cannot be obtained from any other source."

Neil Shapiro, a Landels, Ripley & Diamond attorney specializing in First Amendment and media law, said Microsoft appears to be on solid legal footing. Massachusetts is not among the many states that have so-called shield laws immunizing journalists from disclosing unpublished materials in most cases, he explained.

Massachusetts judges have "an enormous amount of discretion in trying to strike the proper balance between the need to protect the free flow of information and the need to provide a litigant with information necessary to his case," Shapiro said. "As a general rule, if the litigant can show that the information goes to the heart of the case and cannot reasonably be obtained elsewhere, he will likely defeat any claim" of immunization.

Microsoft's brief also provides the best glimpse yet of the book, due to hit stores this month. According to Microsoft attorneys, it reflects the "shortsighted manner in which Netscape conducted its business."

Among other things, the brief claims that former Netscape vice president Ram Shriram said that America Online's decision to use Microsoft's Internet Explorer rather than Netscape's Navigator was "Netscape's own fault." Antitrust prosecutors have claimed that AOL believed Microsoft's browser was inferior to Navigator but chose to use it anyway in exchange for AOL software being included with Windows.

But that assertion appears to be contested by AOL's chairman and chief executive, Steve Case. During a recent address, Case said he elected IE because it was free and because AOL would be promoted prominently in return.

The brief also cites claims made by Michael Toy, a Netscape employee responsible for new versions of Navigator, who said that the browser code was "slapped together originally and had never been fixed." A Microsoft attorney goes on to claim that "the latest versions of Netscape's Web browsing software are still built on the original code base, which had severe deficiencies made worse by tacking on additional functionality over time."

All of these admissions "are flatly inconsistent with claims being advanced by the DOJ and the states in their actions against Microsoft," the brief argues. "Candid concessions by senior Netscape personnel that their own mistakes are responsible for the declining popularity of Netscape's Web browsing software are fatal to the government's contention that Netscape's problems can be laid at the feet of Microsoft."

"If Microsoft's defense to their illegal and anticompetitive behavior is that Netscape made decisions that business school professors might have made differently in hindsight then that is a very weak defense," Netscape attorney Christine Varney said through a spokeswoman. "In fact, the authors of the book were recently quoted as saying that Microsoft crossed the line."