By Siobhan Kennedy in Connecticut
An attorney for Bristol Technology Inc yesterday used a series of damning emails and internal documents to try and prove that Microsoft Corp deliberately made changes to its Wise program to boost its presence in the server market while refusing to listen to Bristol’s pleas for negotiation.
During the cross examination of Redmond’s first witness, the company’s senior VP Jim Allchin, Bristol’s lead attorney Patrick Lynch forced Allchin to admit that he wanted to reduce the volume of source code given to developers so that they could not port their applications to other, rival platforms. Allchin, who took the stand for the first time Wednesday, explained that he was concerned that Microsoft’s cross-platform mentality, which he referred to as a disease, was leading to the extermination of Windows. In an email to CEO Bill Gates and fellow VP Paul Maritz, Allchin said: I worry about it every day when I run, eat, shower, etc. Paul knows how worried I am but I don’t think I have told you [Gates] before.
Although Allchin denied his comments were in any way related to the Wise agreement, it was the IE [internet explorer] team….they weren’t spending enough time developing or concentrating on Windows, he explained, the SVP later conceded, I was confused about the Wise program and whether the next license for our source code should be done on the same terms.
Allchin said he wanted to change the program so that it only gave developers the code to write client-side applications. At one point, Lynch produced an email entitled NT server technology that we’d prefer not to see on Unix. In that note, Allchin had given instructions to two members of his team, Dan Neault and Morris Beton, to come up with a list of technologies that should be removed from the Wise program so that ISVs would no longer be able to write server-based applications. You did instruct Neault and Beton to change Wise into a client-side program, not a client/server program, that’s right isn’t it? Lynch asked. I wanted the Wise thing to focus on clients, Allchin admitted to the courthouse.
That was at the end of summer 1997, yet Allchin had earlier testified that the first time he had read the Wise program was in March 1998, prior to his deposition in the Bristol case. It was also in the same time frame as Bristol was trying to renegotiate the terms of its contract with Microsoft, which Redmond has professed, on numerous occasions, that it was more than happy to do.
You said you’d never read the Wise program till March, five or six months after the lawsuit was filed, Lynch said, However, you’d already had multiple meetings in which you’d decided to restructure Wise. Did you ever ask Neault what was said to the public about this? I can’t remember, Allchin replied. Lynch then drew his attention to a press release which Microsoft had issued when it signed its next Wise contract with Mainsoft. In it, Microsoft told the public it would make its Windows APIs a standard for developing applications on both Windows and Unix platforms. In other words, you were telling them [the ISVs] that they could rely on the APIs for the continued development of applications, Lynch said, You didn’t say this program is limited to those of you who want to write client applications did you? No, an embarrassed Allchin replied.
In another damning piece of evidence, Lynch produced an August 1997 letter from Bristol’s CEO Keith Blackwell, to Allchin. In it, Blackwell pleaded with Allchin to do something to address Bristol’s case. Three months had passed since he last wrote to Allchin and nothing, bar a meeting with Neault and Beton, had happened since, the CEO said. At the end of the letter, Blackwell asked Allchin to call him and confirm he had received the letter. But there was no response. When asked why he had not done as Blackwell had requested, Allchin said that he hadn’t seen the last paragraph. Nor, it turns out, did anyone who attended the emergency meeting which Allchin hurriedly convened to address the issue. Just weeks later, on August 18, Bristol filed its law suit against Microsoft.
In another embarrassing revelation, Lynch showed that sworn evidence given in court by Neault contradicted Allchin’s testimony. Neault had testified that Microsoft was willing to negotiate a new license fee with Bristol that would give the software company rights to Windows NT server technology, alongside the client offering. But not once did Allchin refer to those same conversations with Bristol. You never had a discussion with Bristol in which you said we’ll license you all of NT 5.0 if you pay a license fee, Lynch said. During the lunch recess, Keith Blackwell was adamant he had never had any conversations with either Neault or Allchin about paying a fee to gain access to the full NT source code. They never mentioned it to me once, he said, Microsoft is just trying to turn the argument around to pricing issue. Name the right price and we’ll give you the code you need, but that never happened.
But a spokesperson for Microsoft denied that was the case. He said Blackwell had been present in a meeting where Microsoft had spelled out higher royalty rates for different amounts of code. Allchin was clear. NT represents the most valuable intellectual source code the company owns, he said, It’s not willing to give away all 29 million lines of code for free. Moreover, the spokesperson argued that Bristol knew all along the negotiations with Microsoft would never lead to it having full access to NT source code. For nine months, Bristol negotiated with the fundamental agreement that they weren’t going to get all the source code. Proposals went back and forth with specific lists…but it was only once they’d sued Microsoft that they started claiming they wanted all the source code. They weren’t negotiating in good faith.
Speaking to ComputerWire at the end of the day’s proceedings, Bristol attorney John Altieri said the day’s events were significant because they clearly supported Bristol’s main antitrust claim; that Microsoft had refused to deal with the company and instead followed its own agenda, regardless of the effect it would have on Bristol’s business – an assertion which Microsoft vehemently denies: Keith Blackwell himself testified under oath, in the court room, that Bristol received as good, if not better, a deal than was offered to Mainsoft, a Microsoft spokesperson said, I don’t know how in the world that supports a refusal to deal claim.
