Microsoft fails to net academic freedom in its fishing expedition

IN A VICTORY FOR ACAdemic freedom, a federal appellate court ruled that two professors do not have to turn over to Microsoft tapes of interviews with Netscape executives, effectively giving academics the same protection journalists enjoy regarding the confidentiality of their sources.

David Yoffie of Harvard University and Michael Cusumano of the Massachusetts Institute of Technology tape-- recorded off-the-record interviews with Netscape chair Jim Barksdale and company co-founder Marc Andreessen for the professors' forthcoming book, Competing on Internet Time: Lessons from Netscape and Its Battle with Microsoft. In the interviews, the executives admit to making strategic mistakes while competing with Microsoft.

Microsoft's lawyers say the tapes were subpoenaed to help prove that it was not Microsoft's illegal conduct that caused Netscape's Internet software to lag behind, but Netscape's own business blunders, which allowed Microsoft's Internet Explorer to ascend in the market.

Citing academic freedom, and arguing that the tapes were made in confidence solely for use in their book, the professors refused to hand over their research. The AAUP supported the professors, stating that Microsoft's demand for the tapes could have a chilling effect on faculty scholarship if faculty members began to limit their areas of work to noncontroversial topics. Having to yield to the demand could also hinder researchers' ability to promise confidentiality to those they interview.

In its decision, the appellate court affirmed that the district court that made the first ruling in the case "balanced the right array of factors, and acted well within its discretion in determining that the scales tipped in favor of preserving confidentiality and against the wholesale disclosure of investigative materials gleaned in the course of prepublication academic research."

Copyright American Association of University Professors Jan/Feb 1999
Provided by ProQuest Information and Learning Company. All rights Reserved