Microsoft does lawsuit hat trick

Lawsuits embroiling the software giant filed by Bristol, Caldera, and Sun all move forward.

5 min read
It was a busy day for Microsoft attorneys, as three separate lawsuits embroiling the software giant all moved forward.

From opposing a motion that would require the company to turn over highly confidential source code for Windows NT to accusing Caldera of contempt of court, Microsoft's legal team appeared to be everywhere.

The most important event today was the release of a Microsoft court brief opposing a request by Bristol Technology for a ruling that would require Microsoft to turn over Windows NT source code.

The Danbury, Connecticut-based maker of cross-platform tools for software makers sued Microsoft in August, alleging unfair competition under federal antitrust laws. In its brief released today, Microsoft called the action a "strange form of brinkmanship."

Filed in U.S. District Court in Bridgeport, Connecticut, the suit accuses Microsoft of inducing Bristol to enter into an agreement to port certain Windows-based solutions to the Unix and Macintosh platforms.

But by 1997, after Bristol claims it had "bet its future" on the three-year relationship, Microsoft abandoned the project by radically changing licensing terms for Windows NT, the suit alleges. Attorneys for Bristol said the switch invokes antitrust laws because it was designed to destroy Bristol along with a competitive threat to Microsoft's dominant Windows position.

But in its brief filed Friday and made public today, Microsoft characterizes the case as a simple contract dispute and as an attempt by Bristol to "negotiate by litigation." According to the filing, Microsoft agreed in 1994 to license "source code for specified older Windows products for only three years, until September 1997" and that code for Windows NT versions 4.0 and 5.0 was never part of the agreement.

"Bristol simply cannot demonstrate any injury of the sort that the antitrust laws seek to prevent, and it also lacks antitrust standing to assert its claims," the brief asserts. "Bristol also asks the court to write a new software licensing contract giving Bristol more favorable terms than it has so far negotiated."

Microsoft pointed to a Windows NT license it negotiated with Bristol competitor Mainsoft, carrying many of the same terms Bristol claims are anticompetitive.

Bristol is the maker of a product known as Wind/U, a tool that allows software developers to "port," or translate, Windows code to the Unix platform. Microsoft said it agreed to "assist" Bristol in the effort by entering into a source code licensing program known as Windows Interface Source Environment, or WISE.

"Bristol has grovelled [sic] at Microsoft's doorstep over the intervening year, offering any reasonable accommodation to avoid the damage to its business and reputation that will inevitably result from filing this action," Bristol attorneys argued in bringing their suit. "All that Microsoft has offered was a poison pill, certain to destroy Bristol."

The suit seeks a preliminary injunction requiring Microsoft to turn over Windows NT source code to Bristol. U.S. District Judge Janet Hall, who is presiding over the case, is expected to schedule a hearing on Bristol's motion within the next week.

On a separate front, Microsoft today accused Caldera of violating a protective order that requires the bulk of the documents filed in the bitter antitrust case between the two to remain confidential. (See related story.)

Also in that suit, a federal magistrate judge in Utah gave Microsoft an additional 30 days to collect evidence, but refused to delay the start of trial, now set for June 1999. Microsoft had asked that the trial be delayed by 120 days so it could take more depositions.

Microsoft spokesman Jim Cullinan said attorneys filed their request after Caldera submitted a witness list that exceeded limits set by the court.

"We're pleased that the court gave us additional time to complete our discovery process and we will move forward to complete [depositions] as quickly as possible," Cullinan said. "We're trying to make sure that...we have the ability to develop our defense." The spokesman added that "Caldera has not been the most forthcoming" in handing over evidence.

In addition, U.S. Magistrate Ronald Boyce of Salt Lake City ruled that a confidential deposition taken in the case should be not be released to the public. Representatives for both sides declined to discuss the nature of the deposition testimony.

Caldera chairman and chief executive Bryan Sparks would say only that the deposition--taken of a former Microsoft employee Stephanie Reichel--was "important" to the case. It is believed to contain testimony that evidence in the case was destroyed.

Privately, a source affiliated with Microsoft said that the deposition testimony concerns the deletion of email that is not relevant to the dispute with Caldera.

"We're pleased that the court will continue to enforce both parties to adhere to the protective order which was put in place to ensure that this information is used in the most appropriate manner," said Cullinan. "We have some questions about how this information is being received in the public when it's supposed to be protected," he said.

On a third front, a federal judge in San Jose, California, appears close to releasing a more detailed transcript of a hearing that took place earlier this month. The case pits Microsoft against Sun Microsystems over its Java programming language. In a heavily redacted (or edited) version of the transcript, U.S. District Judge Ronald Whyte said he believed the dispute was contractual in nature.

Even after today's events wind down, Microsoft attorneys will need to be in court tomorrow for a hearing in a fourth case filed by the Justice Department and 20 states.

At the hearing, scheduled for 11 a.m. ET, Oracle is expected to ask U.S. District Judge Thomas Penfield Jackson, who is presiding over the case, for a protective order to seal documents subpoenaed by Microsoft.

Earlier this month, Microsoft subpoenaed documents from a number of companies, including Oracle, in connection with the government's suit. Trial is set for October 15.

Oracle had no immediate comment.

Part of the government's case turns on Microsoft's alleged attempts to crush Java, and officials from Bristol have said that government attorneys have inquired about the contents of its suit.

Reuters contributed to this report.