UPDATE: Day two in remedy hearing, MS comes out swinging

ITworld.com –

A Microsoft Corp. attorney opened day two of the U.S. states' antitrust remedy hearing by attempting to show that Sun Microsystems Inc.'s Java programming environment has not lived up to its promises.

During the remedy hearing, which is expected to last at least six weeks, District Court Judge Colleen Kollar-Kotelly will hear arguments on remedy proposals from nine states and the District of Columbia, which have rejected the antitrust settlement proposed by Microsoft, the U.S. Department of Justice, and nine other states.

In its opening statement Monday, Microsoft made clear its plans to focus its evidence on Java and Netscape Communications Corp.'s Navigator browser and show that these middleware products were not victims of Microsoft anticompetitive behavior.

An appeals court last year upheld the district court's decision that Microsoft violated antitrust law by extending its monopoly in the desktop operating system market into the middleware market. The appeals court, however, overturned the remedies imposed by Judge Thomas Penfield Jackson, which included a breakup of Microsoft, and sent the case back down to another district court judge.

Microsoft lawyer Steven Holley Tuesday morning showed the states' witness Richard Green, a Sun vice president and general manager of Java and XML software internal Sun documents that pointed out shortcomings of the company's Java technology. These shortcomings included the inability of Java in its different forms to run applications consistently, performance problems of Java running on desktop PCs, and customer complaints that Java is a proprietary technology.

An attorney for the states, Kevin Hodges, later questioned Green regarding Java's current position in the market, to which Green answered that the technology is suffering due to Microsoft's actions. Hodges also asked about Microsoft's omission of the Java Virtual Machine in Windows XP, a line of questioning that led Kollar-Kotelly to later warn the states that she may consider the topic to be beyond the scope of the case.

Green refuted many of Holley's assertions, saying that comments from Sun's internal memos were taken out of context, or were inconsistent with Green's own perceptions.

At one point Holley read form a Sun document that said Sun itself doesn't use Java in many of its own internal applications.

"This statement I believe is inaccurate," Green said.

When asked to explain a Sun document saying the company should take advantage of Microsoft's decision to exclude the Java virtual machine from Windows XP to expose Microsoft's unfair business practices, Green responded that Sun was making lemonade from lemons.

Microsoft's decision regarding Windows XP, which Green claims violated a contract between the two companies, has "damaged drastically Java's success on the desktop."

Later, when Hodges asked him to assess Java's current standing in the market, Green expanded his statement. "Java has flourished in all areas where Microsoft doesn't have a controlling or monopoly position," he said. Microsoft has a monopoly position on the desktop PC market, but its dominance also extends to the server market, he said. Because Microsoft has not included a Java Virtual Machine in Windows XP, server applications that use Java but also require Java to be present on the desktop will not run if the desktop virtual machine is not present, he said.

Following the states' attorneys questions, Microsoft lawyer Holley moved to strike all of Green's written and oral testimony regarding Microsoft's exclusion of the Java Virtual Machine in Windows XP, claiming that such testimony was "marching down a new liability path." Microsoft has argued that the scope of the hearing should be limited to remedies for its anticompetitive behavior as defined by a court of appeals' finding last year, an opinion which has gained some support from Kollar-Kotelly.

Much of Green's testimony went toward trying to show new liabilities, Holley argued, and if such testimony continues Microsoft will be forced to offer its own evidence as to why its actions that the states are bringing up but that are outside the scope of the court of appeals' findings were not, in fact, anticompetitive. Holley urged the judge to rule on the issue soon.

The judge responded that she will not rule on the scope of the case until both parties have filed all relevant briefs, for which the deadline is Wednesday. "This is not an issue I'm going to ... do off the top of my head," she told the attorneys.

However, she did agree with Microsoft that some of Green's testimony could be construed as attempting to build a case of new liabilities, and if that continues "there is going to be a problem," she said.

The states' attorney claimed Green's testimony related to the inclusion of the Java Virtual Machine in Windows XP was designed to support the states' proposed remedy that Microsoft be forced to include such software in its operating system, not to establish new liabilities. The states are "presenting evidence of the current status of Windows XP," which does not include the virtual machine, Hodges said.

Kollar-Kotelly appeared unconvinced that the states were not trying to establish new liability, and told their lawyers to cull written depositions a little more carefully to remove testimony that appears to address new liabilities. She also told the states' lawyers to coach future witnesses so that they stick to the scope of the case at hand.

Sun and Microsoft's legal battle over Java goes back to 1997, when Sun filed a lawsuit against Microsoft in which it claimed Microsoft violated a Java contract agreement. As part of a settlement in that case last year, Microsoft agreed to pay Sun US$20 million, and adopted a Java licensing agreement limiting the way in which it could use Java.

ITWorld DealPost: The best in tech deals and discounts.
Shop Tech Products at Amazon