Despite several hours of arguments and testimony from attorneys and witnesses, the judge hearing the preliminary injunction arguments in the Sun Microsystems Inc. versus Microsoft Corp. antitrust case managed to win the day at closing as much as he had at the start of the day.
At the end of a very long day in his court, U.S. District Judge J. Frederick Motz took the opportunity to ask a few summarizing questions of Rick Ross, president of the Java Lobby Inc., of Cary, N.C., a witness for Sun who said he was in court representing Java developers.
“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.
Ross began his testimony describing his early experiences with Java and his enthusiasm over hearing that Microsoft lined up to license and support Java in 1996, only to be disappointed when the software giant began to distance itself from Java the following year and delivered an incompatible JVM (Java Virtual Machine) into the market, which he said fragmented Java.
Sun sued Microsoft back in March over what it perceived as anti-competitive acts that hampered the adoption of Java and the illegal use of its desktop monopoly in subverting Javas opportunity to succeed.
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The parties are in U.S. District Court in Baltimore this week to argue Suns motion for a preliminary injunction that would force Microsoft to ship a copy of Suns compatible JVM with every copy of Windows XP and Internet Explorer. Sun maintains that this is the only way the company can recoup the opportunity it lost when Microsoft hobbled Java by creating and shipping an incompatible version.
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.
Rich Green, Suns vice president of developer tools, testified that he dismissed the “suggestion” that Sun could achieve that kind of distribution, but that Sun has over the past six months implemented several plans that he expects will boost Javas desktop distribution.
Green testified that Sun needs the injunction to remain competitive with Microsoft and its .Net strategy. Indeed, he said, Sun must achieve “prevalence” in desktop distribution.
Motz then mused that he didnt know why, if a company had a good product that was reliable and had “widespread” distribution of 70 percent or more, that was not enough.
Green said it was because developers tend to support the platform that is dominant and Microsofts is dominant.
“For developers, prevalence is extremely important,” he said. In addition, the expense to develop for a platform is formidable “and the opportunity to recoup that is linked to how many copies you can sell.”
When asked the same question, Ross said: “Well, you cant do everything. You cant be a master of all. If one platform is ubiquitous, most developers arent going to support both, especially in a down economy like this. Im here because I believe the remedy Sun is seeking is crucially important to the tens of thousands of developers I represent.”
However, Tulchin pointed out that Ross testified that he developed for the Macintosh, which at its highest point represented a market share in the teens.
“Yes, and I had to abandon it when the numbers shrank,” Ross said.
In his opening statement, Rusty Day, lead attorney for Sun on the case, said the burden for Sun to achieve the injunction is to prove immediate and irreparable harm. But he said the harm had already been done when Microsoft foreclosed Javas distribution channels with anti-competitive acts.
He later asked Green what effect a denial of Suns motion for the injunction would have on Sun.
Green 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.”
Ross, who submitted a slide that highlighted six key ways that Microsoft fragmented Java, said, “I dont think weve ever yet seen this Java technology have a chance to compete on the merits.”
Tulchin attacked Suns tough talk at its JavaOne conference about how well Java is doing, though Green pointed out that the success is primarily on servers and devices. Tulchin also cited an analyst report that said 63 percent of developers would be supporting the .Net platform and 61 percent supporting Java—with some developers supporting both next year.
Ross ended the day after an often testy cross-examination of Tulchin, where at one point, Motz paused to admonish the attorney. “It would probably save a little time if you didnt keep trying to score points,” he said.
To close his testimony, Ross took the opportunity to interject his opinion of what the judge should do, to the objection of Tulchin.
“I could care less if its Suns Java,” Ross said. “I just want a remedy thats not obsolete, but is performant and compatible with the standards.” He said it could come from any company or even from the Apache open source software foundation.
The sides also argued the issue of copyright infringement, with Sun claiming Microsoft is infringing on Suns copyright by continuing to distribute an incompatible version of Java. But Tulchin said that is a moot point because the parties signed an agreement saying Microsoft could continue to distribute the old version of Java on successor products, and Windows XP Service Pack 1 is such a product.
Sun went first with its case and said it would call three to four witnesses, but only got through two Tuesday—and at that the day ended close to 8 p.m. At the outset of the day, Suns attorneys said the company would get through all of its witnesses in one day. Testimony will resume Wednesday morning with Dennis Carlton, an economist witness for Sun.
