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 Home > News > Technology > Article
Judge Suggests Trial in Sun Vs. Microsoft
Wed December 4, 2002 09:17 PM ET
By Peter Kaplan

BALTIMORE (Reuters) - Go directly to trial. Do not attempt for now to collect more than $1 billion in damages.

A federal judge on Wednesday essentially used that variation on the classic "Monopoly" board game's option of "Do Not Pass Go, Do Not Collect $200" when he suggested that Sun Microsystems Inc. SUNW.O go directly to trial on whether to force Microsoft Corp. MSFT.O to carry Sun's Java program.

U.S. District Judge J. Frederick Motz said Sun, in its antitrust suit against Microsoft, might want to drop its request for a preliminary injunction to require Microsoft to carry Java. He also suggested that Sun set aside for now a damage claim of more than $1 billion against the software giant.

Motz did not elaborate on why he made this suggestion.

Rusty Day, a lawyer for Sun, said the company would consider the idea.

On Nov. 1, U.S. District Judge Colleen Kollar-Kotelly endorsed a settlement of the federal government's charges that Microsoft abused its monopoly in personal computer operating systems. Two states -- Massachusetts and West Virginia -- are appealing that settlement, saying it's too weak.

Santa Clara, California-based Sun claims Microsoft views its Java software as a threat because it can run on a variety of operating systems -- not just on Microsoft's Windows.

Sun charges Microsoft has tried to sabotage Java by a series of actions, most recently dropping it from Windows XP, which was introduced last year.

Microsoft later reversed itself and said it would start including Java in a Windows XP update, but only until 2004.

To get a preliminary injunction, Sun has to show that Microsoft presents immediate and irreparable harm to Java.

Sun's antitrust lawsuit is one of several currently before Motz that have been filed in the wake of Microsoft's long-running antitrust fight with the U.S. Justice Department.

WHY BOTHER?

Andy Gavil, a law professor at Howard University who has closely watched Microsoft's big government antitrust battle, said Motz may feel: "'Why go through the extra process?' He may feel like liability is pretty much established."

In court on Tuesday, Motz seemed sympathetic to leveling the playing field between Sun's Java and Microsoft's .Net Internet services strategy, saying it was more "elegant" than having economists later calculate what "would have been."

On Wednesday, an expert witness called by Sun said Microsoft was overstating the advantage Java already had over .Net due to Java's earlier distribution via Windows.

Economist Dennis Carlton said much of the Java already in the market was a version promoted by Microsoft that was incompatible with Sun's version.

Judge Motz agreed, interjecting: "Not only does it overstate it, I would think that having noncompliant Java machines would be a detriment."

MICROSOFT CITES LIABILITY ISSUE

Microsoft attorney Michael Lacovara challenged Carlton for testifying that it would be relatively inexpensive for Microsoft to resume carrying Java in Windows.

Lacovara charged Carlton didn't know the true cost and his testimony amounted to saying, "let's force Microsoft to carry bad technology and burden consumers."

Chris Jones, vice president of Microsoft's Windows Client Group, testified that forcing Windows to contain Java could cause "significant harm."

Microsoft, he noted, could be liable for problems with Java and there might be no limit on the size of the Java program.

"It could grow without bounds," Jones told Motz. "It could have unintended consequences on the rest of the operating system and we wouldn't know."

Sun filed its antitrust lawsuit in March, after a federal appeals court upheld a lower court ruling in the government case that Microsoft had broken U.S. antitrust laws and illegally maintained its monopoly in PC operating systems.

Motz also is overseeing cases filed by AOL Time Warner AOL.N unit Netscape Communications, Be Inc. and Burst.com BRST.OB , as well as class-action lawsuits filed by attorneys suing on behalf of consumers.

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