Microsoft ordered to carry Java

By Paul Festa, Staff Writer
CNET

December 23, 2002

The preliminary injunction issued by Judge J. Frederick Motz in Baltimore is a double-barreled victory for Sun. The company won preliminary injunctions on a copyright infringement claim and on an order to compel Microsoft to carry the latest version of Sun's Java Virtual Machine software.

"I find it an absolute certainty that unless a preliminary injunction is entered, Sun will have lost forever its right to compete, and the opportunity to prevail, in a market undistorted by its competitor's antitrust violations," Motz wrote in the 42-page ruling.

Sun is suing Microsoft for allegedly violating antitrust law in dropping Sun's version of Java and including its own version, which Sun alleges to be incompatible with its technology.

Java is a programming language designed to work regardless of what operating system a computer has installed. Microsoft has long viewed Java as a competitive threat to its Windows operating system, which the courts have ruled a monopoly.

Motz cast his decision in stark competitive terms, contending that Microsoft's actions benefited its own .Net products at Java's expense.

"Unless Sun is given a fair opportunity to compete in a market untainted by the effects of Microsoft's past antitrust violations, there is a serious risk that in the near future the market will tip in favor of .Net, that it is impossible to ascertain when such tipping might occur in time to prevent it from happening, and that if the market does tip in favor of .Net, Sun could not be adequately compensated in damages."

Sun applauded the decision.

"This decision changes the dynamics of the distribution channel for the Java technology," Mike Morris, Sun's vice president and special counsel, said in a statement. "It is the technology and the business model surrounding it that promises to open the markets now monopolized by Microsoft to the benefits of robust competition and unrestrained innovation...the preliminary injunctions we sought are intended to temporarily address some of the damage that Microsoft has inflicted until a full trial can be conducted."

Microsoft said it planned to appeal Monday's injunction.

"We're disappointed with today's ruling," said a Microsoft representative. "We still need to review the details of the court's decision. But based upon our initial review, we intend to appeal and we'll ask the Court of Appeals to hear it on an expedited basis."

In his decision, Motz cited numerous instances in which Microsoft had worked to undermine Java.

"While...deliberately fragmenting the Java platform to make it less attractive for developers and users, Microsoft also successfully embarked upon a campaign to destroy Sun's channels of distribution," Motz wrote. "Microsoft has succeeded, through its antitrust violations, in creating an environment in which the distribution of PCs is chaotic and the Java runtimes on PCs are incompatible."

The ruling can hardly be a surprise to Microsoft. Motz gave some clue to his thinking earlier this month when he compared Microsoft's treatment of Sun to figure skater Tonya Harding's 1994 attack on competitor Nancy Kerrigan in advance of the Olympic Games.

It will be at least a year before Sun's lawsuit against Microsoft goes to trial, Lee Patch, Sun's vice president and associate general counsel, said in a conference call on Tuesday. He said attorneys for Sun and Microsoft will meet with Motz early in January to discuss the next step in the case.

In the decision, the judge cited Sun's request that Microsoft "set up Sun's most current Java runtime environment to be installed by default on any product containing .Net, including Windows XP...and Internet Explorer."

While granting Sun's request for an injunction in general terms, Motz held off on determining exactly which of Microsoft's software titles will be affected. He ordered attorneys for both sides to work that out over the holidays, according to Sun.

Sun filed a private antitrust lawsuit against Microsoft in March, seeking "remedies for the harm inflicted by Microsoft's anticompetitive behavior with respect to the Java platform and for damages resulting from Microsoft's illegal efforts to maintain and expand its monopoly power."

One legal expert called Monday's decision "an incredible victory for Sun."

"The judge had a fair amount of discretion in fashioning an appropriate remedy," said Eric Goldman, an assistant professor at Marquette University Law School in Milwaukee and former chief counsel for Epinions. "But the one he gave was a fantastic remedy that may be better than Sun could have achieved in the open market. They got this judge to give them what they were unable to get from the judge in the government case, and from their settlement negotiations. Sun gets distribution that they could only have dreamt about."

But the Association for Competitive Technology, a trade group with close ties to Microsoft, took a dim view of the injunction, calling it anticompetitive.

"The central issue in this case is who is responsible for the failure of Java, and it is clear to anyone in our industry that Sun is responsible for that failure, not Microsoft," said the group's president, Jonathan Zuck. "Rather than take responsibility, they turn to the courts to pin the blame on others and force Microsoft to carry their product."

News.com's Jeff Pelline contributed to this report

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