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Sun win knocks wheels off Microsoft Java plans

A ruling forcing Microsoft to purify its Java may undermine Redmond's fragmentation strategy

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Sun claimed a major victory over Microsoft yesterday when a California judge granted a preliminary injunction forcing Microsoft to stop shipping its version of Java, and ordering it to start shipping Sun's. On the evidence that's come out of the Sun-Microsoft case so far it looked like Microsoft had a good chance, but District Judge Ronald Whyte has decided the reverse. The judge has granted the preliminary injunction because he feels Sun is "likely to prevail on the merits" in the main court action, which is scheduled to take place next year. If he hadn't thought Sun had a good case, then he would not have granted 'injunctive relief' in this way. The evidence from the case does not necessarily support this view, however, and the injunction may well be vulnerable to appeal, as the preliminary injunction granted to the DoJ almost a year ago was. Microsoft has argued in the case that its contract with Sun gave it permission to modify Java, while Sun has produced evidence which indicates that Microsoft's intent in modifying Java was to 'pollute' and fragment it, thus neutralising it as a threat. The Register, incidentally, has some theories as to why this strategy will be unsuccessful anyway, and we hope to get around to publishing them soon. Some of Microsoft's strongest evidence came from emails written by Sun executives who, on reading the contract, concluded that Microsoft was indeed being given the right to change Java, and that Sun's negotiators had therefore screwed-up. In deciding that Microsoft probably does not have that right, it seems the judge has taken intent into account, and discounted the narrow legalistic approach Microsoft has taken. If Sun didn't mean the contract to say that, then…. Well, then what? In its legal battles over the past year, Microsoft has repeatedly turned to the fine print and eschewed the big picture. This worked in the case of the DoJ preliminary injunction, as although the judge granted it on a similar basis to the one used by Judge Whyte, the appeal court ruled in favour of the narrow legal interpretation. The DoJ didn't mean it to say Microsoft could integrate whatever the hell it liked in Windows, but nevertheless that's what the consent decree said. So Microsoft may get the Sun injunction overturned as well. That however doesn't help it in the long run, again as the DoJ action is showing. The major problem facing Microsoft now is that, although it can defend on a narrow legalistic basis, arguing that its many contracts allow and require this, that and the next thing, it's vulnerable to the big picture. In the antitrust case the DoJ simply has to establish a pattern of anti-competitive behaviour, and this could easily be done via a web of contracts which individually may be perfectly permissible. The evidence produced by Sun, although not necessarily much use in a line-by-line argument over contracts, does seem to indicate a cynical, anti-competitive plan to destroy a rival in order to maintain Windows' dominance. So it's sauce for the DoJ, if not for Sun. Judge Whyte's injunction will have no obvious effect on Microsoft immediately. It has 90 days to stop shipping its version and start shipping Sun's, and it doesn't have to recall product. But the real effect, if Microsoft doesn't get it overturned swiftly, is that it will knock the wheels off of Microsoft's destabilisation campaign. Its non-pure Java development tools now have a limited shelf life. The plan was to use Windows momentum in order to get developers producing Windows Java apps in preference to general Java apps, but if they can't see continuity in the Microsoft Java strategy, developers won't buy that. So if Microsoft can't get the injunction overturned fast, Sun has won, whether it wins next year or not. ® Complete Register trial coverage

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