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Sun judge says ‘unfair business practice’ key to Microsoft injunction

So the Sun case starts to converge on the antitrust one...

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Sun has won a preliminary injunction against Microsoft over Microsoft's attempt to subvert Java (Related Story). Federal Judge Ronald Whyte of the San Jose district court said that Sun was "likely to prevail" at trial and that Microsoft must make its Java offering compliant with Sun's specification within 90 days. Microsoft has 15 days to tell the court how it intends to do this -- and it means changing Windows 98 and IE, but not a recall. Microsoft spokesman Greg Shaw said that Microsoft plans to appeal. No date has been set for the main trial, but it would not be before the current Microsoft trial in Washington ends. Sun has "demonstrated a reasonable likelihood" that the contract "does not authorise Microsoft's extension of the Java language and its corresponding modifications to the Java language compiler". But perhaps the most important revelation was Judge Whyte's comment that "The court finds that negotiating for or enforcing the… licensing terms constitutes an unfair business practice. Microsoft does not argue that these licensing provisions bear any utility which outweighs the harm asserted by Sun." The "unfair business practice" identified by Judge Whyte was Microsoft's requirement that its licensees must use and distribute only Microsoft's version of Java. This result is of major consequence for the Washington trial because the practices that Microsoft has used against Java are at the core of the DoJ's accusations against Microsoft. The strongest part of the DoJ's case is in fact the allegation that Microsoft deliberately takes draconian steps to extinguish any technology that might challenge its Windows monopoly -- and Java is of course the strongest challenger. Microsoft developers who have been using Microsoft's Java tools will be upset by the ruling. But the key point has yet to be made in the Washington court - that Microsoft's compelling reason for wanting control of the browser was as much to stop the distribution of Java technology as extinguish Netscape. The DoJ Complaint does specifically mention this: "Non-Microsoft browsers are perhaps the most significant vehicle for distribution of Java technology to end users. Microsoft has recognised that the widespread use of browsers other than its own threatens to increase the distribution and use of Java, and in so doing threatens Microsoft's operating system monopoly. For this reason, a presentation to Microsoft CEO Bill Gates on January 5, 1997, on how to respond to the Java threat emphasised 'Increase IE share' as a key strategy. (MS7 005529-44)." Microsoft must now support Sun's Java Native Interface (JNI) in the JVM, and will have to turn off those Microsoft-specific keywords in its developer tools that were used to create incompatibility and pollute Java. Sun is of course hoping that Microsoft will decide to include its own Java, which would be a better PR move for Microsoft in the circumstances, although Microsoft's basic instinct is more likely to be to snuggle up to HP's version. Microsoft VP Paul Maritz said in a conference call last night that "the option of not supporting Java is open to us" but this is seen to be sour grapes rather than a realistic option. If the preliminary injunction is upheld at trial, this indicates a possible direction for remedies, if Microsoft loses the first round of the current case in Washington. Microsoft's great fear about Java has been that it would have the effect of "commoditising the [Windows] platform", as Microsoft email put it. This is one direction that could be reinforced by Judge Jackson. The other (and more effective) measure would of course be for the court to declare that Windows is an "essential facility" (there's a great deal of case law about this, and it was cited recently when Intergraph won its preliminary injunction against Intel) and put the source code in the public domain, including the documentation of all interfaces. Legally, the interim Sun decision tells Judge Jackson that Microsoft did have an intent to monopolise. The result is more important than if the same assertion had just been made in court by Java-creator John Gosling who will be appearing as a witness, since the San Jose result is a judicial finding that carries more weight. Gosling will now have to reinforce the arguments and will have less need to prove the issues. The timing could hardly have been better for the DoJ, especially with John Soyring of IBM currently giving evidence, and Comdex at its peak in Las Vegas. IBM is effectively the major proponent of Java applications, as documents just released by Washington court show: In an email on 6 November 1997,Microsoft VP Joachim Kempin said that "the Java religion coming out of the [IBM] software group is a big problem… "Overall we will never have the same relationship with IBM that we have with Compaq, Dell and even HP, because of their software ambitions. I could deal with this just fine if they weren't such rabid Java backers." Furthermore, the timing of the release of the San Jose decision may not be accidental. US courts are far more political than in the UK, and the release of the ruling yesterday is quite probably a coded message by the judge. It does not bode well for Microsoft, but Sun, IBM and the Java lobby will be pretty happy. ® Complete Register trial coverage

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