Court Questions Suns Java Stance

Sun Microsystems Inc.s position as a force in the PC operating system market was in question last week at a hearing before the U.S. Court of Appeals for the Fourth Circuit.

Judge Paul Niemeyer took control early in the hearing here, in which Microsoft Corp., of Redmond, Wash., sought to appeal a federal District Court ruling that it must ship Java with every copy of Windows it sells.

Niemeyer challenged Suns lead attorney, Lloyd "Rusty" Day, almost immediately when he stood to argue for Suns right to the "must-carry" Java provision, saying that the remedy Sun is seeking is not suited to the claim it made in the courts.

Niemeyer said Sun, of Santa Clara, Calif., based its claim of existing harm by Microsoft on Microsofts operating system monopoly. The preliminary injunction ordered by U.S. District Judge J. Frederick Motz addressed potential harm Sun could face from Microsoft in the "emerging" middleware market, where Suns Java competes with Microsofts .Net.

"If your concern is about the PC operating system market and your client is not in that market, why do you care?" Niemeyer asked Day.

"First of all, we are in that market," Day responded, saying that Sun sells Solaris on the Intel Corp. platform.

Microsoft and Sun argued before a three-judge panel consisting of Niemeyer, H. Emory Widener Jr. and Roger Gregory.

Later in the hearing, Day reintroduced the Tonya Harding-Nancy Kerrigan skating-attack analogy, saying, "Its an absolute certainty that Microsoft hobbled Java. Microsoft has hobbled Suns ability to compete."

Microsofts attorney, David Tulchin, argued that a preliminary injunction such as the one Sun is seeking is unprecedented as a remedy before a case has been tried.

"Never before has a preliminary injunction been used in an antitrust case to alter dramatically the status quo in a market and [used] here to benefit the dominant force in that market," Tulchin said.