Microsoft Loses Round in Java Case - Washington Post

Microsoft Loses Round in Java Case
Judge to Grant Injunction to Sun

By Jonathan Krim
Washington Post Staff Writer
Tuesday, December 24, 2002; Page E01


Microsoft Corp. must include an arch rival's software when it distributes its dominant Windows operating system for personal computers, a federal judge ruled yesterday, dealing a surprising blow to the software giant's efforts to put its antitrust cases behind it.

The decision by U.S. District Judge J. Frederick Motz is a major victory for Sun Microsystems Inc., which developed a programming language known as Java that allows computer applications to run on virtually any operating system and across computing platforms.

Motz, based in Baltimore, said he would approve Sun's request for a preliminary injunction requiring Microsoft to include Java, after working out the details with lawyers for the companies. Sun is suing Microsoft for billions of dollars in damages following rulings by two federal courts that Microsoft violated antitrust laws in part by undermining Java.

Sun argued in a special hearing early this month that in the two years that it probably will take for that lawsuit to be tried, Microsoft's competing software, known as .Net, could easily overwhelm Java because Microsoft will be able to include it with Windows, which is used by more than 90 percent of computer owners. Sun asked for the injunction to ensure a level playing field until the case is decided.

The stakes are high because Java and Microsoft's .Net efforts are likely to be the primary software platforms on which a host of emerging technologies will run, including "smart" cell phones, handheld organizers and other Internet-based mobile devices. Microsoft has called .Net its most important initiative for the future, while opponents say it could provide another opportunity for the company to preserve its hammerlock on personal computing software.

Sun officials said they expect Motz to issue the injunction next month. The decision benefits Sun indirectly, because Java is distributed free as "open source," but many of Sun's new hardware and software systems are based on Java and its wide distribution.

Microsoft intends to appeal the decision to the U.S. Circuit Court of Appeals for the 4th Circuit, and is likely to seek a stay of the order pending the appeal, Microsoft spokesman Jim Desler said. He said the company is disappointed by the ruling and is still studying it.

Legal experts had been skeptical of Sun's chances of winning the injunction, noting a reluctance by the courts to make decisions that directly influence the marketplace before a trial is held. The legal threshold for such injunctions is high: A party must show that it will likely win the case at trial, and that it will suffer irreparable harm if the injunction is not granted.

Motz agreed with Sun on both counts, showing little patience for Microsoft's protests that the injunction would benefit Sun at the expense of Microsoft's fledgling .Net platform, which has yet to be rolled out in full force.

In great detail, he recounted Microsoft's numerous previous attempts to kill Java, including quashing the Netscape browser that was Java's primary distribution platform and creating its own, incompatible version of Java that it distributed with Windows.

"Microsoft has succeeded, through its antitrust violations, in creating an environment in which the distribution of Java on PCs is chaotic," he wrote. "The 'must-carry' remedy Sun proposes is designed to prevent Microsoft from obtaining future advantage from its past wrongs and to correct distortion in the marketplace that its violations of antitrust laws have caused."

He also wrote that although Java enjoys primacy in the market today, due largely to its distribution with many software programs that power computer servers -- an area Microsoft does not dominate -- that balance could tip quickly once .Net is widely distributed via Windows.

At that point, Motz said, the competition for the "mindshare" of developers who write applications based on what platform is most popular would swing to Microsoft.

Motz's conclusions are in stark contrast to a recent decision by another federal judge, who approved a deal between Microsoft and the Justice Department to settle the government's case against the company.

A coalition of state prosecutors had argued that the deal was inadequate, and they proposed requiring that Microsoft carry Java as one of several additional sanctions. But federal Judge Colleen Kolar-Kotelly roundly rejected the states' proposals as overreaching and being pushed at the behest of Microsoft rivals who did not want to compete in the marketplace.

Motz ruled that his obligations in a private lawsuit for damages are different than what was appropriate in a government-imposed antitrust decree.

Andrew Gavil, an antitrust professor at Howard University, said that Motz's ruling indicates that in cases involving fast-moving technology, "it's hard to put the market back where it was, and hard to quantify damages." As a result, he said, the Sun case might be viewed as one in which a preliminary injunction is more appropriate.

Motz said he also will issue an injunction barring Microsoft from actions that Sun claims infringes on its Java copyright.