Microsoft Loses Bid To Get Tapes

Microsoft lost a legal battle Thursday to get what it hoped would serve as powerful evidence to stymie the federal government's antitrust lawsuit - access to interviews by two professors with Netscape executives.

Professors David Yoffie of Harvard University and Michael Cusumano of the Massachusetts Institute of Technology had refused to hand over tapes and documents in which Netscape executives admit mistakes in their efforts to compete against Microsoft.

U.S. District Judge Richard Stearns ruled against Microsoft, saying the professors had shown the tapes were made in confidence.

"This is, in fact, a significant victory for academic freedom," Yoffie said after the ruling.

Stearns did say, however, that Microsoft lawyers had not been on a "fishing expedition" when they sought the tapes to use as evidence in their own antitrust defense. And he reserved the right to release sections of the tape, if necessary, once the antitrust case against Microsoft goes to trial in Washington this month.

Microsoft spokesman James Cullinan said the company will consider an appeal. He said the court fight wasn't about academic freedom, but about access to evidence Microsoft needs to defend itself.

Microsoft lawyers had argued the tapes cut to the heart of the U.S. government's antitrust case: Did the software giant use unfair tactics to dominate its competitors?

To win the mammoth antitrust case, the government must show that Microsoft crossed the line from innovation to calculated schemes that choked rivals and hurt consumers. It must prove that Microsoft used its dominance in operating systems to force PC makers into installing its Internet browser software and exclude competitors.

Microsoft is eager to find evidence that may show Netscape's own business blunders, not its allegedly illegal conduct, caused Netscape's Internet browser software to founder while Microsoft's grew in popularity.

The professors' book, Competing on Internet Time: Lessons from Netscape and its Battle with Microsoft, is scheduled to appear in stores just days after the start of the trial.

The several hours of tapes, which include interviews with Netscape Chairman Jim Barksdale, company co-founder Marc Andreessen, and more than 40 other employees, contain off-the-record comments, private conversations, and admissions of strategic missteps, Cusumano said.

The professors had said the tapes were made with the understanding that they would be used for their book, not a lawsuit by a rival company.

Written by Dave Howland