Sun vs. Microsoft: Harding vs. Kerrigan Revisited

In appeals hearing, Sun reintroduces Harding/Kerrigan analogy, while a judge challenges Sun's role in the PC operating system market.

RICHMOND, Va.—Is Sun Microsystems Inc. really a force in the PC operating system market? That question was the crux of the hearing Thursday before the U.S. Court of Appeals for the Fourth Circuit here.

Judge Paul Niemeyer took control early in the hearing in which Microsoft sought to appeal a federal district court ruling that it must ship Java with every copy of Windows the software giant sells. Niemeyer challenged Suns lead attorney, Lloyd "Rusty" Day, almost immediately when he stood to argue for Suns right to the "must-carry" Java provision, noting that that the remedy Sun is seeking is not suited to the claim it made in the courts.

Niemeyer said Sun laid its claim of existing harm by Microsoft on the issue of Microsofts illegal maintenance of its monopoly position in the PC operating system market, yet the preliminary injunction ordered by U.S. District Judge J. Frederick Motz addresses potential harm Sun would face from Microsoft in the middleware market, an "emerging" market where Suns Java competes with Microsofts .Net platform.

"If your concern is about the PC operating system market and your client is not in that market, why do you care?" Niemeyer asked Day after setting the tone with two initial questions about Suns claims.

"First of all, we are in that market," Day claimed, saying that Sun sells Solaris on the Intel platform.

"Well, the district court judge got it wrong, right?" Niemeyer asked, driving in.

"No, he didnt get it wrong," Day attempted.

Niemeyer then said: "In order to get relief, you have to be injured in the relevant market …"

As Day continued to struggle to make his point, Niemeyer laid bare the Sun case and cut the Sun attorney short several times. Microsoft and Sun argued before a three-judge panel consisting of Niemeyer, H. Emory Widener, Jr., and Roger Gregory.

Day later reintroduced the Tonya Harding/Nancy Kerrigan analogy, saying, "Its an absolute certainty that Microsoft hobbled Java. Microsoft has hobbled Suns ability to compete." Day argued that Motz based his findings on the fact that the "potential" harm from Microsoft could be deferred by his injunction.

"You just gave it away there!" said Niemeyer said. "A potential competitor—you have to be a competitor there" in the relevant market to be granted relief, the judge said.

Later, Judge Gregory, the only other judge to question the attorneys in the case, said to Day: "Your argument is Microsoft is being found guilty of discharging a firearm in the direction of human beings, but its a slow-moving bullet and now we have to see where it lands?"

Day responded, "Yes, and Microsoft was shooting at Suns knee. What Microsoft did is what Tonya Harding did."

Niemeyer quipped: "But what you did is asked for a remedy to fix her elbow and not her knee."

Microsofts attorney, David Tulchin, argued that a preliminary injunction such as the one Sun is seeking is unprecedented as a remedy before a case has been tried. "Never before has a preliminary injunction been used in an antitrust case to alter dramatically the status quo in a market, and here to benefit the dominant form in that market." Tulchin noted that Sun holds more than 90 percent of the server operating system market and is a leader in the platform market for cell phones, PDAs and other devices with its Micro Java implementation.

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