Microsoft takes hostages for next anti-Java legal round

New lawyers, please

Rick Ross, founder of the JavaLobby community forum was deposed by Microsoft attorneys last week and his account of the session gives a glimpse into Microsoft's next round of legal warfare against Sun.

Microsoft is homing in on what's a sore point for Sun - as a trawl by The Beast's attorneys through Sun's confidential memos has already revealed. Trial exhibits indicate that Sun was keenly aware that the size of the Java run-time was a barrier to adoption, and more damagingly, that Sun's customers don't see Java as a neutral play. For the first accusation, see this memo, in which a redacted J2SE product manager laments:

"The J2RE download size is simply too large for many developers. Upgrades and patched releases also require a full JRE download… there are issues with RAM footprint, performance, reliability and compatibility".

That's what we'd been hearing this from Java developers too - some even started a 'slim-Java' petition. The memo we refer to is dated April 2001 - but when we asked Sun about it at JavaOne here two months later - the response was 'Good Lord, how could you think such a thing?' It wasn't a problem - official.

Which just goes to show, as Claud Cockburn, the legendary British journalist, once said, you shouldn't believe anything until it's been officially denied.

But Microsoft lawyers think they're onto a winner. It's vital that they prove that competitors had alternative distribution channels for rival Windows 'platforms'. If they can do that, then the PC OEM business no longer looks like a monopoly. And Microsoft is handed a get out of jail free card. But the Microsoft lawyers need to turn some somersaults before they can get there.

"Learning the whole truth did not seem to be the primary objective of the exercise," Rick writes.

"The Microsoft attorney had strange priorities. He spent a lot of time trying to force me to answer a question about how long it would take to download a JRE [Java run-time environment] using DSL or cable broadband. I asked him repeatedly to give me the specific size of the JRE in question and the specific speed of the DSL or cable broadband connection, but he just didn't seem to understand that you cannot calculate download time without knowing these two simple facts."

Well, he's a lawyer.

"He seemed to think that if he just pressed me harder for an answer, then I would provide one despite the impossibility of performing the calculation without adequate data about the assumptions. His impatience grew more apparent every time I said I couldn't answer his question and asked him to give me the specific information I would need to answer it."

"This attorney tried very hard to make me describe how I would approach the task of finding alternative ways to achieve ubiquitous distribution of the JRE if the preliminary injunction Sun is seeking is not granted. He...seemed to feel that Macromedia Flash was the key to getting Java widely distributed, but I truly cannot fathom how he expected this distribution strategy to work?"

We can.

Because Flash - which is typically a 300k download - is ubiqutious - the shyster was trying to goad Ross into acknowledging that Java should be just as widely adopted. And here The Beasts' earlier trawl through Sun's confidential memos rather defeats its latest parry. Sun can refer the honorable gentlemen, as they say at Prime Minister's Question Time in Britain, to the previous answer.

Ross also points out that Flash is widely bundled - far more widely bundled than a Java run-time, but the Microsoft attorney didn't seem to be aware of the fact:

"Whether he knew or not, he definitely didn't care."

Now the Unsettling States' remedy hearings have been distinguished by poor legal work from both sides. But it's ironic that the prosecution will be able to rebut - with some ease, we suspect - Microsoft's next line of defense by using the very memos that Microsoft unearthed to discredit Sun.

The words hoist and petard spring to mind. ®

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