Judge gives Microsoft 120 days to ship Java

A U.S. federal judge on Wednesday ruled that Microsoft Corp. has 120 days to begin shipping Sun Microsystems Inc.’s Java technology with its Windows PC operating system.

At a hearing in Sun’s private antitrust suit against Microsoft, Judge Frederick Motz also ruled that Sun can proceed with all 16 of its antitrust claims against the software maker. Last Friday Motz granted a Microsoft motion to dismiss two of those claims, but he overruled himself Wednesday, saying that he initially had misunderstood the scope of those claims. [Please see Judge denies MS bid to dismiss lawsuits.]

But Motz also granted Microsoft’s motion to delay his Java order so the company could appeal his decision. Motz stayed his order for two weeks so that the U.S. Court of Appeals, Fourth Circuit, has a chance to look at his decision.

Lawyers for the two sides argued in a Baltimore courtroom Wednesday over how to word Motz’s Dec. 23, 2002, order forcing Microsoft to distribute Sun’s Java in operating systems that also include Microsoft’s competing .Net Framework.

Sun has accused Microsoft of using its monopoly power in the desktop operating systems market to derail the use of Java, which competes with Microsoft’s .Net software. Microsoft has done this, according to Sun, by distributing Java software that is incompatible with Sun’s, thereby restricting its ability to run across multiple computer platforms.

Microsoft has said it plans to appeal Motz’s preliminary injunction requiring it to carry the Java code, known as a Java Virtual Machine (JVM). The two sides spent most of Wednesday hearing arguing about how details of the order should be implemented.

Microsoft lawyer Steven Holley argued that Sun’s wording of the “must-carry” order is vague and could require Microsoft to carry Sun’s JVM in its server operating systems, a market in which Microsoft does not have a monopoly, he said.

He also expressed concerns that the order would require Microsoft to carry Sun’s Java on older versions of Windows other than Windows XP and in the Internet Explorer browser. The .Net Framework is an optional install for original equipment manufacturers in the newer operating system.

Holley also argued that Sun only offers its Java software in nine languages, while Microsoft’s Windows is distributed in 34 languages. He suggested that Microsoft should not be required to distribute Sun’s Java unless Sun could provide it in all 34 languages because the discrepancies would cause confusion among Microsoft’s non-U.S. consumers. “(Sun has) asked to be part of Windows, that’s the cost of the ride,” Holley said.

The Microsoft attorney asked Motz to give Microsoft up to 180 days to offer Sun’s Java in an upcoming service pack for Windows XP.

Holley had suggested that Microsoft should be able to phase in its compliance with Motz’s order. The first step would be to offer Sun’s Java for download from the Web within 30 days. Within 60 days Microsoft would deliver Sun’s Java to PC makers for use in their systems, and then within 180 days it would deliver the technology with a Windows XP service pack.

“This is very, very messy, very, very complicated,” Holley said.

At one point, Motz asked Microsoft’s lawyers why they were raising about 60 pages of concerns about his Java order more than nine months after Sun asked for the preliminary injunction.

“I’m reminded of a sentence I took out of my opinion,” Motz said. “When Microsoft has the will to achieve, the achievement is great, and when it has the will to obstruct, the obstruction is complete.”

Sun lawyer Rusty Day argued that while Microsoft seeks to defer the order, Sun’s Java is losing ground to Microsoft’s .Net Framework. He asked Motz to require Microsoft to incorporate and distribute Java within 90 days. He said Microsoft’s proposed language of “making available” the Sun version of Java is too vague and wouldn’t achieve the distribution parity with .Net that Sun needs.

Motz effectively split the difference between the two sides, ordering that Microsoft distribute the Sun software within 120 days.

The two sides also clashed over when the clock should start ticking on Motz’s order. Sun asked the judge to set a firm deadline based on the date of his final order, while Holley wanted the deadline to be based on when Sun delivered working Java code to Microsoft.

“We’re not trying to be obstructionist, but it’s not in anyone’s interest for us to install some code in our operating system that doesn’t work,” Holley said.

Motz asked the two sides to work out their remaining differences by Monday and deliver to him their agreed upon language in a new “must carry order” that also resolves other outstanding issues raised in Wednesday’s hearing.

Microsoft lawyer David Tulchin said he’s not sure if the two sides can resolve all the remaining issues by the judge’s deadline. “We’re not going to be happy with any order, and that’s why we’re going to the court of appeals,” he added.

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