A Conservative Court
Now, more than a year after Sun initially filed suit, a key ruling is up for appeal in one of the most conservative courts in the country, observers say. And some handicappers see that as a positive for the software giant, which has argued that the type of relief Sun is seeking, and that Motz granteda must-carry provision as an interim remedyis unprecedented in a case like this. At the Fourth Circuit, federal cases from Maryland, Virginia, West Virginia, North Carolina and South Carolina are appealed. Democrat Diana Gribbon Motz is a Clinton appointee; President Reagan appointed J. Frederick Motz, a Republican, to the federal bench. A conservative court, consisting of seven Republican conservatives and five Democrats, one of which routinely votes with the conservative majority, the Fourth Circuit could be a welcome stop for Microsoft, some say.During the proceedings in his court, Motz told Lloyd "Rusty" Day, an attorney for Sun, during his closing remarks: "Theres still something about this. I called it a social issue, but its even a moral issue. You could be paid for your damages and the loss of your market but its also about pride and product." Further, Motz said: "Something seems to me to be wrongeven if you could end up being paid a lot of money that youre denied selling your product. Java people have pride, too." Day seized the opportunity. "The purpose of the antitrust law is to take away the kings monopoly," he said. In another exchange, Day asked Rich Green, Suns vice president of developer tools, who was sitting as a witness in the case, what the impact would be on Sun if Motz denied the companys motion for a preliminary injunction. Greene responded: "The harm to Sun would be very significant, and I dont see a mode in which it could be connected going forward. The distribution of the Java platform has been radically hindered. Without this type of relief, thered be a big shift away from Java to .Net." Rick Ross, president of Javalobby Inc., of Cary, N.C., who also served as a Sun witness representing the developer community, said, "I dont think weve ever yet seen this Java technology have a chance to compete on the merits." However, Andrew Layman, director of XML and Web services standards at Microsoft, who testified for the Redmond, Wash., software giant, said Web services obviate the need for the must-carry Java remedy. And Christopher Jones, Microsofts corporate vice president in charge of Windows client development, gave five primary reasons why doing so could actually harm Microsoft: The order would jeopardize Windows ship dates; it would expose Microsoft to the risk of intellectual property litigation and damage; the order doesnt place bounds on what Sun could put into the JVM"it could grow without bound," Jones said; it could impact the quality and security of Windows and Microsoft software; and it represents a support burden and could cost Microsoft. Motz showed himself to be a quick study on the core issues and asked several questions of both attorneys and witnesses. "Would the world as you see it have reached fruition if one platform was speaking to PCs and the other to devices?" Motz asked Ross. Motz was referring to the notion that Java is more prevalent on devices and Microsoft, with its .Net platform, is dominant on the desktop, as both sides established in court. Added Motz: "The whole vision was that these platforms were going to be compatible for everything. If Microsoft continues to dominate the PC market, and assuming they develop the technology to interact with handheld devices, assuming it was dominant in the PC market, would that over time affect its ability to win the whole field?" To this Ross replied, "Yes, even though the software will run on a cell phone, the development will take place on a desktop machine." He added that developers building on a desktop with Microsoft tools are likely to write to a Microsoft-based platform, such as Microsofts .Net Compact Framework. Microsofts attorneys maintain that Sun is already largely successful with Java in the server and devices spaces and that the company is looking for the court to do what it has been unwilling to do to build its presence in the desktop space. David Tulchin, an attorney for Microsoft, introduced evidence that a Sun employee had devised a plan for Sun to gain distribution for Java first on 70 percent of the PC market, and then on 95 percent, but that the company did not want to pay the $4 million a year it would take to do so.
"Certainly that [a conservative court] would favor Microsoft more because youve got an interim remedy fashioned by a district court judge, and its put in place before a complete trial on the merits," said Robert Lande, an antirust law expert and professor at the University of Baltimore School of Law. "Thats not done all the time; in fact that is kind of unusual," Lande said. Although, he added, "I thought Sun made a very strong case."