Sun Gets Injunction in Microsoft Case

By Darryl K. Taft  |  Posted 2002-12-23

Sun Gets Injunction in Microsoft Case

A federal judge gave Sun Microsystems Inc. a big Christmas present and Microsoft a coal in its stocking Monday afternoon, by granting Sun the preliminary injunction the company asked for in its private antitrust lawsuit against Microsoft Corp.

U.S. District Judge J. Frederick Motz ruled that Microsoft both infringed on Suns copyright for its intellectual property and that Microsoft must ship a Sun-compatible Java Virtual Machine (JVM) with each copy of its Windows operating system and Internet Explorer browser.

Mike Morris, vice president and special counsel at Sun, said: "Today the court granted both Suns copyright infringement and Java-Must-Carry motions for preliminary injunction in Sun vs. Microsoft. We are very gratified by the Courts decision and we are thankful for the opportunity to be heard and for the promptness of the courts ruling."

The judges ruling is a temporary condition that Microsoft must adhere to until the case goes to trial.

"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," Morris said. "The full trial will include this and all of the other antitrust claims that Sun has brought against Microsoft."

Further, Morris said: "This decision is a huge victory for consumers who will have the best, latest Java technology on their PCs, and it is a victory for software developers who will write applications to run on those PCs. The decision helps ensure that current, compatible Java technology will be included on every consumer desktop and will put an end to Microsofts practice of fragmenting the Java platform.

"This decision changes the dynamics of the distribution channel for the Java technology. Its a victory for the Java Community, including developers, consumers and system vendors. Sun and its partners are working to make the best and latest Java technology available worldwide to anyone who wants it—for free. 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."

Microsoft spokesman Jim Desler said in reaction to the ruling: "We are disappointed with todays ruling and still need to review the details of the courts decision. Microsoft intends to appeal todays ruling and will ask the Court of Appeals to hear it on an expedited basis."

Jonathan Zuck, president of the Association for Competitive Technology, a Microsoft-backed industry trade group, in Washington, said:

"We are extremely disappointed and puzzled by the decision today to force Microsoft to carry Suns Java product. Over the past few years, our industry has been mired in litigation that ultimately does not benefit the industry or consumers. Sun Microsystems, in particular, has taken a leading role in this litigation and lobbying frenzy. Rather than improve their own products and put their resources in research and development, they continue to look for ways to have the government and courts do their work for them.

"Where Java stands to make the most progress is in the enterprise where heterogeneous networks are a reality and where wide scale deployment is simple. The reason Java hasnt taken off in that environment doesnt have to do with the absence of the Java VM on a PC, it has to do with least common denominator functionality that doesnt fully exploit the Operating System and performance.

"What our industry needs is more competition and innovation, not more lawsuits and regulations that force companies to carry their competitors product. We are hopeful that as this litigation moves forward, this order is reversed."

Page Two

: Judge to Rule on Sun-Microsoft Battle">

Motz heard arguments on the issue for three days during the week of Dec. 1, 2002, in his courtroom at U.S. District Court in Baltimore.

At the end of the hearing, Motz praised both sides for having put on strong cases and said the two legal teams had him going "back and forth" on the issue and that he had not made up his mind as of the end of the hearing.

During the hearing, Motz made several comments that could be construed as leaning toward Sun, although he admonished those in the courtroom not to take any direction from comments he had made.

Calling the skirmish both a "social" and "moral" issue, Motz said he believed "Java people have pride," just as Microsoft developers do, and have the right to see their technology get a fair shake in the market.

Motz also, owing to the Sun legal team, made a comparison likening Sun to Nancy Kerrigan and Microsoft to Tonya Harding:

"Nancy Kerrigan is deprived of the opportunity to compete on two good knees," he said. "Is there a social value on being able to participate in a market undistorted by your competitor?"

However, although many press reports cited the comments coming straight from the judge, Motz made the comments based on direction from the Sun legal team and witnesses.

In fact, Rick Ross, president of Javalobby Inc., first made the Nancy Kerrigan comparison in eWEEK last June. Ross, who was a witness for Sun in the case, told eWEEK that the quote became part of Suns legal strategy. In his opening statement, Suns lead attorney on the case, Lloyd "Rusty" Day, of the law firm of Day Casebeer Madrid & Batchelder, spoke of Microsofts "kneecapping" Sun. And Sun continued to make references to Microsoft having taken out Suns knees throughout its arguments, including Rick Rosss testimony.

Sun filed its 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. Sun charges that Microsoft intentionally sought to fragment the market for Java by seeding it with incompatible software.

This suit is the second Java-related suit filed by Sun. The first, filed in October 1997, was a contract dispute over Microsofts distribution of Java compatible technology, which the parties settled in January 2001.

However, this latest suit, which is scheduled to go to trial next year, has both sides digging in. Microsoft is fueled by recent rulings in the landmark government case against the software giant, in which U.S. District Judge Colleen Kollar-Kotelly did not accept recommendations that Microsoft should be forced to distribute Suns technology.

At the hearing earlier this month, Sun called three witnesses: Rich Green, a Sun vice president; Rick Ross, founder of Javalobby Inc.; and Dennis Carlton, an economist and professor at the University of Chicago Graduate School of Business.

Microsoft called four witnesses: Chris Jones, vice president of Microsofts Windows Client Group; Andrew Layman, director of XML Web services standards at Microsoft; Sanjay Parthasarathy, corporate vice president of Microsofts Platform Strategy Group; and Kevin Murphy, an economist and also a professor at the University of Chicago.

In addition to the pre-trial hearing on the preliminary injunction, Motz also will be hearing class action lawsuits against Microsoft and other private lawsuits against the software giant filed by Be Inc., AOL Time Warner Inc. and others. A second hearing before Motz is scheduled for Jan 10, 2003, where Microsoft will argue its motion to dismiss these private claims.

(Editors Note: This story has been modified since its original posting to add reactions from Sun, Microsoft.)

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