No Motz vs. Motz in Microsoft Appeal

By Darryl K. Taft  |  Posted 2003-03-31

No Motz vs. Motz in Microsoft Appeal

When the U.S. Court of Appeals for the Fourth Circuit Thursday hears Microsoft Corp.s appeal of a federal judges ruling calling for the company to ship Java with Windows, it will do so without at least one of its members.

The court will hear the appeal of the ruling of U.S. District Judge J. Frederick Motz in the Microsoft case, but his wife, Judge Diana Gribbon Motz—who sits on the Richmond, Va.-based appeals court bench—will recuse herself, say court officials.

Judge Diana Gribbon Motz, a member of the Fourth Circuit, will not sit for the Microsoft appeal because she routinely recuses herself from hearing appeals of rulings made by her husband.

In what amounted to a Christmas present to Santa Clara, Calif.-based Sun Microsystems Inc., Motz granted a preliminary injunction request by Sun and ruled in late December that

Microsoft must provide a Sun-compatible Java virtual machine with each copy of Windows and the Microsoft Internet Explorer browser.

Judge J. Frederick 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 made 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.

However, Motz showed some signs of which way he was leaning, even early in the proceedings. Motz called the legal skirmish between Sun and Microsoft a "social issue" and then a "moral issue" and said he believed "Java people have pride," just like Microsoft developers, and have the right to see their technology get a fair shake in the market.

Motz also made reference to former Olympic ice skaters Tonya Harding and Nancy Kerrigan, likening Sun to Kerrigan and Microsoft to 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?"

Sun filed its private antitrust suit against Microsoft in March 2002 claiming the software giant used its desktop operating system monopoly to slow and sidetrack Javas momentum as an alternative platform for the hearts and minds of developers. Sun is charging 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.

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 granted—a must-carry provision as an interim remedy—is 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.

"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."

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 wrong—even 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.

MS Other Legal Battles

In other moves, Motz denied Microsofts requests to dismiss antitrust cases filed by Be Inc. and, saying he believed the claims warrant further discovery and are sufficient to go forward.

Meanwhile, despite the appeal, Microsoft is fueled by rulings in the landmark government case against it, where U.S. District Judge Colleen Kollar-Kotelly did not accept recommendations that Microsoft should be forced to distribute Suns technology.

Early in his hearing, Motz said he was "surprised by the vehemence" with which 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.

But last week, the Federal Court of Appeals for the District of Columbia agreed to hear the appeal of two prominent industry associations that were seeking to join the states of Massachusetts and West Virginia in appealing the settlement between Microsoft and the Department of Justice.

Ed Black, president and CEO of the Washington-based Computer & Communications Industry Association, said the appellate court Thursday announced that it would hear the case of the CCIA and the Washington-based Software and Information Industry Association, who had initially combined to ask Kollar-Kotelly for the opportunity to appeal the settlement. Kollar-Kotelly, who presided over the case of non-settling states that were seeking more stringent penalties for Microsofts antitrust violations, denied their request to appeal. The bulk of those non-settling states later settled after months of hearings, with West Virginia and Massachusetts opting to appeal the settlement decision.

The D.C. Court of Appeals also said it will consider hearing the CCIA/SIIA appeal "en banc," or with all members of the court present. The last time the court met en banc in a Microsoft-related issue was when Microsoft appealed U.S. District Judge Thomas Penfield Jacksons ruling to break Microsoft in two. The court overturned that ruling, scolded Jackson and remanded the case to Kollar-Kotelly. Meanwhile, the appellate court said it will hear the West Virginia/Massachusetts appeal en banc as well, and will schedule the CCIA/SIIA appeal for the same days.

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