In an 83-page legal brief, the Redmond, Wash.-based company asked the 4th U.S. Circuit Court of Appeals to toss out a Jan. 21 order from a Baltimore federal judge in an antitrust suit that Sun filed last year. On Feb. 3, the appeals court the injunction on hold while it reviews the case.
"The district court improperly discounted the serious harm to Microsoft resulting from the must-carry injunction," Microsoft said in its brief. "Microsoft should not be forced to distribute with Windows a product created by one of its fiercest competitors."
On Jan. 21, U.S. District Judge J. Frederick MotzMicrosoft to do two things: Distribute Sun's version of Java with Windows and stop distributing its own implementation. Motz agreed with Sun that Microsoft's conduct during the mid- to late 1990s violated antitrust laws by trying to squelch Java and that Microsoft's new .Net framework will complete the deed.
"It is not necessary to use Windows to distribute software widely on PCs," Microsoft wrote. "Software companies have succeeded in distributing hundreds of millions of copies of their software on PCs without any assistance from Microsoft. Apple Computer Inc., for example, distributed more than 125 million copies of its QuickTime media player (which competes with the Windows Media Player component of Windows) in a single year by Internet download alone."
To win a preliminary injunction in federal court, a plaintiff generally needs to prove that there is an imminent threat of irreparable harm and also that it is likely to win the case in the end.
Microsoft argued the injunction should be denied because there is little chance .Net will best Java without it. "There was no evidence...that software developers believe that .Net 'will become dominant' or that interest in Java is decreasing," it said. "In 2002, three million software developers used Java. Sun expects this number to increase by 40 percent this year, to 4.2 million."
While the appeal is ongoing, Microsoft said, it will begin to make Sun's version of Java available through its Windows Update mechanism and the Service Pack 1 upgrade.