Judge to States: Stay On Track

A U.S. District Court judge on Tuesday warned the states that have not settled with Microsoft Corp. not try to stretch their complaints into a brand-new liability case.

WASHINGTON—A U.S. District Court judge on Tuesday warned the states that have not settled with Microsoft Corp. not try to stretch their complaints into a brand-new liability case.

"I think that some of the areas the plaintiffs (are) starting to go into, there is going to be a problem," said Judge Colleen Kollar-Kotelly. "Youre taking a very broad view of same or similar conduct." If the states continue in this vein, the judge added, "then were in a liability trial, not a remedy."

Kollar-Kotelly also told the states attorneys that they needed to cull some of their direct testimony more thoroughly and prepare their witnesses better in order to keep the case on track.

The judges admonishment came at the end of testimony by Richard Green, vice president of Java software for Sun Microsystems Inc. Sun earlier this month filed suit against Microsoft saying that the Redmond, Wash., software giant is using his monopolistic power to sabotage Java. Much of Greens testimony on Tuesday followed that line.

But Microsoft attorney Steven Holley warned that debate over whether Microsoft should have included its own version of Java in Windows is "marching down a new liability path." And if the District of Columbia and nine states that refused to settle with Microsoft continue down that path, Microsoft will seek the right to introduce new "pro-competitive" evidence for doing what it did, Holley told the court.

But while the judge agreed with Microsoft on that issue, she did not grant Microsofts request to throw out all of Greens testimony that dealt with Windows XP and incompatible Java Virtual Machines. Instead, she took the matter under advisement. She also indicated she was disinclined toward allowing Microsoft to add new evidence at this point.

"I dont want to go down that road because its a waste of time," Kollar-Kotelly said.

The judges remarks came toward the end of a day of wrangling between Microsoft attorneys and representatives of two of the companys staunches rivals: Sun and American Onlines Netscape subsidiary.

Holley produced a number of documents, marked "Sun confidential," which he used as a basis for questioning Green on the level of commitment to Java—by customers, enterprise software vendors, and even Sun employees.

One such internal Sun document, dated August 2001, detailed the results of a customer road show Sun conducted with clients such as Reuters, Merrill Lynch and Thompson Financial. When asked if they considered Java an open system, according to the document, Merrill representatives said they considered Java proprietary and found Microsofts development tools easier and cheaper to deploy, manage. Green took exception to what he termed a comparison of unrelated entities, and said this was the first time he had heard of corporate customers voicing these types of opinions.

Holley also used internal Sun e-mail exchanges over PeopleSoft Inc.s decision to dump its Java projects after being burned by a client Java effort that went wrong in 1997. According to the e-mails produced by Holley, "PeopleSoft pitches no Java as a competitive advantage." Among the problems cited: buggy Java Virtual Machine; strange deployment bugs; low quality graphical-user-interface (GUI) tools.

Holley tried to question the supposed "write-once/run-anywhere" promise of Java using an April 2001 memo that allegedly discussed internal Java incompatibilities. The various versions of Java developed by Sun to run on different form factors, such as Java Browser, p-Java (personal Java), J2ME (Java 2 Micro Edition) and J2SE (Java 2 Standard Edition) are not compatible, according to the document, said Holley. Green retorted that J2ME applications are not designed to run on J2SE.

Holley also hammered on other Sun documents, trying to show that Sun was aware of a number of alleged weaknesses in Java, including performance, size, memory leaks and lack of tools. Holley used a January 2002 Sun memo to try to show that Sun had tailored Java to run best on Solaris and its SPARC processor. Throwing back at Green a criticism often levied at Microsoft, Holley asked if there was any kind of wall separating Suns Solaris and SPARC teams from its Java group. Green told him there is no formal wall.

Following Green, former Netscape CEO James Barksdale took the stand, facing his old nemesis, Microsoft attorney John Warden. The pair spent most of their time quibbling over simple definitions. Warden tried to focus on the issue of middleware and the extent to which Microsoft would be able to remove elements like the Windows Media Player and still provide the same level of stability and functionality.

But Barksdale wouldnt give an inch. Despite the fact that he attested in his written testimony that "most OEMs would refuse to support more than one middleware product that performs the same function," he told the court that removing, testing and deploying non-Microsoft middleware in Windows would not be a burden.

The remedy phase of the state trial is expected to last up to eight weeks. The nine dissenting states that are pushing ahead with the remedy hearing are California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia. The District of Columbia is also part of this group. While the current remedy hearing proceeds, Kollar-Kotelly is examining, in a separate proceeding, whether the settlement agreed upon by the Justice Department and nine other states in November best serves the interests of the public.

For more on the Microsoft antitrust case, check out eWEEKs special report, "Microsoft vs. DOJ."