During the first day of an antitrust hearing that likely will last all week, U.S. District Judge Frederick Motz gave mixed signals about what he was thinking, saying that Sun's suggestion was "attractive" but could be unduly self-serving.
Bundling a Java interpreter with Windows XP, Motz said, would be a "wonderfully elegant and simple, although dramatic" remedy that could be better than turning the solution over to a clutch of economists from each side.
But Motz also said "it does give Sun the benefit over others," a reference to recent court decisions saying that U.S. antitrust law must help consumers, not competitors. "If you've got (Java) widespread and you've got the better product, why do you need parity?" Motz asked Sun's attorneys.
During opening arguments, Sun attorney Rusty Day of Day, Casebeer, Madrid and Batchelder said Microsoft had tried to kneecap Java because it poses a threat to Windows and, now, to the company's .Net strategy.
"The order Sun seeks merely affects a portion of the competitive advantage illegally seized by Microsoft," Day said.
Java is a "cross-platform" programming language that permits a developer to write an application that will run on many different operating systems without having to be rewritten for each one. Because a Java program can run, for instance, on an IBM mainframe, a Sun Solaris server or on a Dell computer under Windows, it represents a potential threat to Microsoft's operating system hegemony.
After settling an earlier lawsuit with Sun in Jan. 2001, Microsoft dropped Java from Windows when it introduced Windows XP last year. That meant Windows users had to download Java independently, if it hadn't already been separately installed by the PC maker or dealer from whom they purchased their machine. Microsoft then reversed itself and said it would include its own Java interpreter in a Windows XP update, but only until 2004.
"On the face, it looks ironic, paradoxical: You want a runtime (Java interpreter); you don't want a runtime," Motz told Sun's attorneys. But Sun claims Microsoft's Java interpreter doesn't actually adhere to the standard.
In his opening argument, Microsoft attorney David Tulchin systematically assailed Sun's case, saying its rival was asking for an unprecedented remedy that "has never before been granted in any antitrust case" and that a similar proposal had been considered and rejected by U.S. District Judge Colleen Kollar-Kotelly in another antitrust case.
Tulchin, a partner at Sullivan and Cromwell who successfully represented Microsoft in a 1998 case filed by Bristol Technology, said "the artificial promotion of Java runs afoul of the goal of preserving competition."
Because the alleged antitrust violations took place circa 1997, Tulchin said, "this is ancient history and cannot form the basis of a preliminary injunction. No case has ever reached that far back in time."
Sun has asked for a preliminary injunction that would replace what it says is Microsoft's outdated Java virtual machine with Sun's current Java version and include that version in Windows XP and Internet Explorer.
In addition, Sun has asked for a permanent injunction that could be granted after an as-yet-unscheduled full trial. That injunction would order full disclosure of all Microsoft's proprietary interfaces; the unbundling of products like Internet Explorer, .Net, and Active Directory from Windows; unspecified damages; and attorneys' fees.
This week's hearing is not directly related to the many other legal proceedings against Microsoft. Scores of class action lawsuits against Microsoft have been consolidated and are pending in Baltimore federal court, while the U.S. Justice Department and half of the states involved in a 1998 DOJ suit have agreed toOn Monday, West Virginia said it would join Massachusetts in their long-running pursuit of the computing giant. a Nov. 1 decision from Judge Kollar-Kotelly regarding the 1998 suit. Kollar-Kotelly approved the federal settlement with Microsoft and rejected the nonsettling states' effort to go further, that attempt an "unjustified manipulation of the marketplace" and a brazen attempt to help competitors.
In the Baltimore federal courthouse's ceremonial courtroom, the two teams of lawyers seem to be reenacting the drama that lay at the heart of the federal lawsuit against Microsoft. In both cases, Microsoft has been accused of trying to strong-arm a competitor into submission in order to move into a new market control it.
Microsoft's legal team highlighted Kollar-Kotelly's decision from last month, quoting a passage that said: "The evidence establishes that Sun does not consider it worthwhile to obtain distribution through the (computer manufacturer) channel and would prefer, instead, to use this litigation as a means by which to obtain ubiquity."
"I don't feel like we heard anything new. We heard the same witness say the same things that he did in Kollar-Kotelly's courtroom that she found uncompelling," said Jonathan Zuck, head of the trade group
Zuck is talking about Sun Vice President Rich Green, who testified for about six hours on Tuesday. Green, who also testified before Kollar-Kotelly's remedy proceedings earlier this year, accused Microsoft of intentionally polluting Java by making it no longer useful as a cross-platform programming environment.
"Over time, Microsoft diverged from the compatible space and began doing things that were outside the definition of compatibility," Green said.
During cross-examination, Microsoft tried to establish that Java was such a success that an injunction would be irrelevant and unnecessary. Microsoft's Tulchin highlighted speeches by Green in which he said that Java grew 40 percent in 2001 and would make dramatic gains in the next few years.