Teleconference Statement on the Sun vs. Microsoft Hearings held at US District Court September 8-10, 1998

Motion for Preliminary Injunction: Unfair Competition
Motion for Preliminary Injunction: Copyright Infrigement
See Also: Lawsuit Information


Thursday, September 10, 1998 - 1:30 p.m. PDT

Operator: Ladies and gentlemen, thank you for standing by. Welcome to the Sun Microsystems conference call.

I would now like to turn the conference over to Miss Lisa Poulson of Sun.

LP: Thanks operator. Joining me on the call today we have Rusty Day. He's our lead counsel, the senior partner at Day, Casebeer, Madrid, Winters & Batchelder, the firm representing us in this case.

Let me go over a couple of housekeeping items. First of all there will be a playback of this brief conference call. The playback number is 800-633-8284; the reservation number is 4707935; and the playback will be available until noon Pacific time Friday, September 11.

Secondly, for anyone who needs background on this case, go to

Thirdly, I know many of you who are calling in were those who hoped to attend the hearing this morning, which was closed to the public. A redacted transcript will be available at the courthouse presumably after 2 o'clock tomorrow Pacific time--that's what the Judge's order stated. We will do our best to get that transcript up on our Web site as soon as possible after that, but consider that if we just have a paper copy, it will take us a bit of time. So I wouldn't anticipate it being up on our web site until some time next week.

Lastly, we are only going to take very few minutes here--probably about 15 minutes in total, which leaves us time for just a few questions. Let me introduce Rusty Day who will spend a few minutes characterizing what happened this morning in whatever manner he thinks is appropriate. Shoot, Rusty!

Lloyd (Rusty) Day: Good afternoon. The Judge held a argument this morning that went for about two and one-half hours. Each side argued for 45 minutes and then we had a short break. The Judge caucused with his staff and came back and asked three questions and then adjourned around 12:30 or so this afternoon.

From my perspective I think the arguments went extremely well for Sun. I think the Judge was very attentive, as he has been throughout this proceeding. He took particular note of a number of the points that we made. He also took note of some of the points that Microsoft made. He understands I believe that this is a very urgent matter and I expect that he will get to it as quickly as he can and that we should have a decision in the not too distant future.

As far as I'm concerned I think the hearing went extremely well for Sun and the Judge has got now a complete and full record in front of him... and we're just waiting for his decision.

LP: Rusty, can you give us -- because I forgot to do this at the beginning of the call--can you brief us on what the motion was that we are seeking?

LRD: Sure. Sun has brought two motions for preliminary injunctive relief. And let me distinguish them and then clarify what relief we're seeking.

We've brought one motion for unfair competition under California State law. And that motion is predicated on the claim that Microsoft is seeking to wrest control of the Java technology away from Sun -- by fragmenting the development environment for Java, by creating a non-conforming, polluted version of the Java language and the Java technology, which it has been distributing in volume through its developer toolkits and its run-time environments, the purpose of which is to establish a non-conforming, fragmented version of Java that will run programs only on the Microsoft implementations of the technology running on Windows. And we've presented the Judge with a voluminous record of information, documents and depositions obtained in the course of discovery to substantiate that claim.

In addition, we have brought a second motion for preliminary injunction based upon copyright infringement. Microsoft is distributing product that fails to pass Sun's compatibility test suite. That product is unlicensed and therefore not protected by the license granted to Microsoft. And the product Microsoft is distributing is therefore an infringement on Sun's copyrights because it includes extensive source code that was developed by Sun and transferred to Microsoft to allow it to develop and distribute Java-compatible products.

The Judge heard argument on both motions today. Both motions are now fully argued, briefed, all the evidence is before the Judge; the record is closed and the matter is now in his hands for decision.

The relief we're seeking in both motions is similar. We are seeking an injunction that would require Microsoft within 90 days to modify its implementation of the Java run-time environment in Windows 98 and in Internet Explorer 4.0 to conform to and pass Sun's compatibility tests. In particular we're asking that Microsoft be ordered to implement in its run-time implementations a native method interface called J-N-I, which is a standard virtual machine interface specified by Sun and implemented by each of its other licensees in their implementations of the Java run-time.

In addition, we are asking for an injunction against the distribution of Microsoft's VJ++ 6.0 development environment and their Software Development Kit for Java versions 2.0 and 3.0, both of which include compiler implementations that have effectively extended, and altered Sun's implementation of the Java programming language by adding unspecified, non-conforming compiler directives and keywords that cause applications written using Microsoft's extensions, to break--that is, fail to run on any Java-compatible implementation. And we are asking that with respect to those tools, the court enter an injunction against their further distribution until such time as Microsoft modifies the toolkits to bring them into conformance with Sun's compatibility test suites.

LP: Okay, I think that's about it. I hope that's very clear to everyone. We've got about five minutes for questions.

Operator, let's take a few now.

Operator: Miguel Helft, San Jose Mercury News.

Q: Rusty, you said that things went fairly well. I was wondering if you can give us any details about what the arguments or why do you think things went well? And also you mentioned the Judge asked three questions: Could you tell us what those questions were?

LRD: I'm afraid I can't until the record is unsealed because I'm under a protective order that requires me to keep that confidential until...

Q: Everything confidential or just some of the documents that were being presented?

LRD: The Judge ordered the hearing sealed, and so until both sides have the opportunity to review it, I would be in violation of the order if I gave you details about it.

Q: Okay, so we can't know anything about what actually happened until the partially unsealed record comes out tomorrow?

LRD: I think that's the Judge's order. I wasn't at the hearing this morning regarding the closing of the hearing, but I don't want to transgress the order, so I think that was his order.

LP: Yea, it's best for us to be conservative on this. Operator, another question?

Operator: Debbie Gage with Smart Reseller.

Q: My question was actually the same as Miguel's. If you can't tell us exactly what went on in the hearing, is there any way you can characterize what the key issues were that were honed-in on or...?

LRD: I wouldn't want to try and characterize the key issues. I'll tell you that I argued extensively with respect to our motion for unfair competition and also made a number of points regarding the contract. Microsoft argued with respect to its points in the contract and tried to rebut our arguments on unfair competition. But as to the details of the argument, I really have to wait until the court unseals the record, which will be at 2 o'clock tomorrow.

Operator: Marie Gordham.

Q: I just want to know what the scheduling is, Rusty? You mentioned the Judge will make a decision shortly? I'm just trying to get a sense of what are the next steps?

LRD: Well that of course is entirely within the court's control and discretion. Judge White is extremely busy. He's very dedicated, he's very able, and I believe based on everything I've seen that he's going to get to this quickly. But there's no guarantee when that will happen. I really have no idea when he's going to decide the motion. It's just my impression based upon my experience with the Judge and my knowledge of him that he will try to get to this as quickly as he can and get a result out. My expectation is that we will see it soon. That may mean a month from now; it may mean two months from now. I would be surprised if it were longer than that.

LP: Thanks everyone for calling in.

[end of call]