During a preliminary injunction hearing on the issue in Richmond in April, the court seemed less than sympathetic to Suns cause. Microsoft and Sun argued before a three-judge panel consisting of H. Emory Widener, Jr., Paul Niemeyer, and Roger Gregory. Judge Paul Niemeyer, who wrote Thursdays opinion, took control early in the hearing in which Microsoft sought to appeal a federal District Court ruling that it must ship Java with every copy of Windows the software giant 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, noting that that the remedy Sun is seeking is not suited to the claim it made in the courts."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 after setting the tone with two initial questions about Suns claims. 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 here to benefit the dominant form in that market." Tulchin noted that Sun holds more than 90 percent of the server operating system market and is a leader in the platform market for cell phones, PDAs and other devices, with its Micro Java implementation. Thursdays ruling may mean less in the overall scheme as Sun has recently proven that it can ensure broad deployment of Java on its own. At its JavaOne conference in San Francisco earlier this month, Sun announced deals with Hewlett-Packard Co. and Dell Computer Corp. whereby both major PC suppliers will ship the latest version of the Java runtime on all new computers they sell. In the courts, Microsoft argued that Sun should have done this in the first place.
Niemeyer said Sun laid its claim of existing harm by Microsoft on the issue of Microsofts illegal maintenance of its monopoly position in the PC operating system market, yet the preliminary injunction ordered by U.S. District Judge J. Frederick Motz addresses potential harm Sun would face from Microsoft in the middleware market, an "emerging" market where Suns Java competes with Microsofts .Net platform.