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Microsoft loses tapes battle
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October 8, 1998: 7:42 p.m. ET
Judge rules professors will not have to turn over interview transcripts
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NEW YORK (CNNfn) - A federal judge on Thursday ruled that two professors will not have to turn over to Microsoft Corp. tapes and transcripts of interviews with Netscape Communications Corp. executives.
Harvard Business School Professor David Yoffie and Massachusetts Institute of Technology Professor Michael Cusumano are authors of a forthcoming book on the battle between the two rival software companies.
During their research, the professors recorded private interviews with Netscape (NSCP) executives in which company officials apparently acknowledge mistakes in their efforts to compete.
Separately, in an interview Thursday Netscape executive vice president Mike Homer confirmed that Microsoft offered to make a 15-to-20 percent investment in Netscape in exchange for Netscape's promise not to adapt its Internet browser for Windows 95.
He said the offer was made in June 1995, and Netscape turned it down. The details of that meeting is expected to feature significantly in the government's pending antitrust case against Microsoft.
Microsoft (MSFT) had issued a subpoena to force the professors to hand over the tapes and transcripts for use as part of its defense in its upcoming antitrust case.
The company hoped the interviews would contradict the government's argument that Netscape's problems, including its loss of Internet browser market share, resulted mainly or entirely from Microsoft's abuse of its monopoly power in the operating system market.
The professors argued the interviews were confidential information. U.S. District Court Judge Richard Stearns said he was not convinced Microsoft's request for the documents met the required tests to force the professors to relinquish the transcripts:
- That the information sought is not available elsewhere
- That the material is relevant to Microsoft's antitrust case
- That the information requested is in the public interest
Stearns did say, however, that he reserved the right to release sections of the tape if necessary once the trial begins.
Greg Shaw, a Microsoft spokesman, said the company believes its subpoena met those requirements, adding that the company is "reviewing its options."
"We think the information in the book and tapes as we understand it are extraordinary and exculpatory," he said.
The case is scheduled to start Oct. 15, though both Microsoft and government attorneys have asked Judge Thomas Penfield Jackson to postpone the start until Oct. 19. 
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