Judge Steals Show in Sun-Microsoft Duel

By Darryl K. Taft  |  Posted 2002-12-03

Judge Steals Show in Sun-Microsoft Duel

BALTIMORE—U.S. District Court Judge J. Frederick Motz stole the show during Tuesday mornings preliminary injunction hearing in the Sun Microsystems vs. Microsoft antitrust case here.

The judges questions to lawyers representing the two sides—Rusty Day of Day Casebeer Madrid & Batchelder, Suns lead counsel, and David Tulchin of Sullivan and Cromwell, for Microsoft—stood out during the opening statements.

The two companies are battling over Suns call for a preliminary injunction that would force Microsoft to ship a standard version of the Sun Java Virtual Machine in Windows. Sun wants the judge to force Microsoft to distribute Suns JVM with each new copy of Windows and Internet Explorer.

Sun filed this private antitrust suit against Microsoft in March claiming the software giant used its desktop operating system monopoly to slow and sidetrack Javas momentum as an alternative platform for developers.

Right off the bat, Motz expressed "surprise by the vehemence" with which U.S. District Judge Colleen Kollar-Kotelly had struck down a similar request to include Java with Windows. Kollar-Kotelly rejected that remedy, which was proposed by the U.S. Department of Justice and nine state attorneys general, as part of her November ruling on remedies in the federal antitrust case against Microsoft.

Microsofts Tulchin defended the "vehemence" by saying that the DOJ and states had been looking for a permanent injunction. Microsoft officials have pointed to Kollar-Kotellys ruling as evidence that Suns injunction would be no good for competition or consumers.

Day told the court that Sun will be irreparably harmed going forward unless the court grants Suns sought-after preliminary injunction. He said that harm already has been demonstrated, and thus doesnt need to be shown.

Tulchin countered by citing the 1996 agreement by which Microsoft licensed Java from Sun. He said that Microsoft did not agree to distribute Java as part of that agreement.

Page Two

: Judge Steals Show in Sun-Microsoft Duel">

Motz mused aloud that compelling Microsoft to carry Java would be a "wonderfully elegant and simple, although dramatic" remedy that would be nicer than calling in a bunch of economists to try to figure out "what might have been in the make-believe world of what would have happened."

Tulchin claimed that harm to Sun has yet to be shown. He noted that at the most recent JavaOne conference in March, Sun claimed that 96 percent of application servers are currently Java-based, and that by 2004, there would be more than two billion Java devices operating around the planet.

Tulchin also cited Suns plans to distribute its Java virtual machine as a kind of "plug in" via OEMs. Sun projected such a plan would cost the company $4 million a year, which, in the grand scheme, was not a lot of money.

"Sun is not exactly the 98 pound weakling," Tulchin quipped. Sun doesnt need the courts help to circulate Java, he said.

Day also cited Sun and Microsofts cantankerous history in his opening presentation.

"Microsoft distributed incompatible runtimes and tools that fragmented the Java platform," he said. "That act, as (Microsoft Chairman Bill) Gates testified last spring, destroyed the platform for developers and users. And by undermining, Microsoft seized for itself an ill-gotten advantage."

Day said Microsoft ended up using .Net as a way to "kneecap" Java.

"That should be enough for relief," Day added. He said Sun only wants the court to address the distribution of the Java runtime —"the same distribution Microsoft grabbed for itself."

The preliminary injunction hearing is expected to run through Thursday. Both sides are slated to call a handful of witnesses with Sun going first. Each side will get at least six hours of witness testimony and then be allowed 90 minutes each for closing arguments Thursday. The actual suit isnt slated to begin until next year.

Rocket Fuel