Java ruling can't be ignored in DOJ case

As previously reported, U.S. District Judge Ronald Whyte of San Jose, California, yesterday sided with Sun Microsystems in its battle with Microsoft over the programming language, which is designed to run across multiple computer platforms.

In a motion filed in May, Sun claimed Microsoft competed unfairly against Sun by creating a Windows-specific flavor of Java while at the same time restricting the distribution of other companies' so-called 100-percent versions. The Justice Department (DOJ) and 20 states, who sued Microsoft in May, claim Microsoft's attempts to "pollute" Java are part of a broad pattern of conduct that violates antitrust laws.

Microsoft has denied those allegations and said it now is considering an appeal of yesterday's decision. A top Microsoft attorney today said that, in any event, the decision was irrelevant to the ongoing antitrust case here.

"This ruling is a narrow ruling and actually will have very [few] implications on the case here in Washington, D.C.," said Tom Burt, Microsoft's associate general counsel, noting that the decision "dealt with a very narrow contract interpretation of a very technical and complicated contract."

But DOJ lead prosecutor David Boies disagreed with that conclusion. "This is an important development and obviously the finding of the federal court in California is a material help to what we're trying to establish here," he said outside court today. Boies added that Whyte's ruling concerning Microsoft's alleged engagement in "Java pollution or trying to destroy the cross-platform aspects of Java helps inform what's going on here."

Because Java allows software developers to write applications that can run on many operating systems, Microsoft came to view the technology as a serious threat to its Windows operating system, documents in the case show. Sun and government attorneys allege that Microsoft responded by using its monopoly to crush the threat.

Boies declined to speculate as to what effect Whyte's ruling will have on the antitrust case here. "This is an important development...that will affect this case, but exactly what that effect will be is something that is entirely up to the judge."

Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady & Gray who is not involved in the case, says the decision is a clear win for the Justice Department. Java, he explained, is the most important technology that Microsoft is accused of trying to blunt, and a win for the software giant would have posed a serious threat to the government's claims concerning the technology.

"If Microsoft had won this preliminary injunction hearing, they would have argued to Judge Jackson that their efforts in the Java area were totally legitimate because all they were doing was what Sun's license agreement allowed them to do," said Gray. The ruling, he added, would have relegated colorful internal Microsoft documents to "locker room talk." Gray was referring to Microsoft email, now in the government's possession, that suggested "killing cross-platform Java by polluting it."

To be sure, Microsoft still has wiggle room in its antitrust case here. For one thing, Whyte's ruling is not final. It still can be appealed, and it is also subject to change pending a trial, which may happen next year. Also, Whyte's analysis of the unfair competition claims is limited to practices that have yet to be cited in the antitrust case here, and include Microsoft contract restrictions no longer in place.

Whyte also appeared to agree with Microsoft's central Java defenses, that its Java products will create and run 100 percent pure Java applications better and faster than any competing products. As long as a programmer does not use any of the Windows-specific features in Microsoft's Java, Whyte wrote in his decision, "source code will properly compile with any Java-compatible compiler and run on any Java virtual machine." While that argument may not be germane in a dispute over a contract, it may carry more weight in an antitrust case.

But Whyte's decision nonetheless takes air out of Microsoft's sails at a critical time, making it harder for the software giant to argue here that it has a right to create its own Windows-specific flavor of Java. It also puts Whyte's sanction on claims that some of Microsoft's Java contracts, whether or not they're still in place, constitute an unfair business practice.