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Judges deny Sun's must-carry Java bid

Microsoft off the hook for now

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A three judge panel has ruled that Microsoft is not required to ship Java with its PC operating system, but the decision hardly seems to matter anymore.

The Fourth Circuit Court of Appeals Thursday overturned a previous ruling that would force Microsoft to carry Sun Microsystems' JVM with the Windows OS and Internet Explorer browser. The three judges said the earlier decision was too broad in its scope and did not show enough of an imminent threat to Sun to warrant a preliminary injunction against Microsoft.

While the recent ruling tips a cap in Microsoft's favor, it will likely do little to impact Java' adoption on the PC given recent events. Earlier this month at JavaOne, HP and Dell agreed to ship Sun's Java technology with their PCs and laptops. That gives Sun the world's largest PC makers, and the company claims smaller players are to follow.

Java already enjoys strong server software market share and crushes Microsoft on cell phones. With companies such as Dell, HP, Yahoo! and AOL helping push the technology, the desktop should be okay regardless of how the Sun/Microsoft legal drama plays out.

It took awhile for Dell and HP to help their customers, but Uncle Sam isn't going derail the train now.

In the earlier ruling, a district court judge argued that Microsoft could use its PC operating system monopoly to undermine Sun's Java technology. The judge noted that the must-carry provision was unprecedented but deemed it necessary to keep Microsoft from using brute force to capture part of the middleware market.

In the recent decision, however, the judges said it was unclear that rulings against Microsoft's PC operating system monopoly carried over to the middleware market.

"It is undisputed that the middleware market identified by the parties and the district court has not yet been defined for antitrust purposes," the judges wrote.

They also argued that the district court failed to prove that Sun faced immediate harm were Microsoft to boycott Java.

"Sun failed to meet this immediacy requirement," the judges wrote. "Its own expert stated, in testimony relied upon by the district court in its written opinion, that even he could not be sure whether tipping was more likely than not. And as previously noted, the district court concluded that 'I do not find that at this precise moment there is an imminent threat that the market for general purpose, Internet-enabled distributed computing platforms will tip in favor of .NET.'"

The judges did, however, side with Sun on one important point. They backed earlier rulings that stated Microsoft was wrong to ship a version of Java that strayed from Sun's license.

"We are extremely pleased with the Appellate Court's ruling today affirming the copyright infringement injunction," said Lee Patch, vice president, legal affairs at Sun. "This decision confirms that Microsoft violated our prior settlement agreement, and that it did so in a way that continued to fragment the Java platform on PCs." ®

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