Judge Calls Sun-Sought Injunction 'Attractive'

Sun counters that the software giant is harboring an "illegitimate competitive advantage' by shipping its system--used on more than 90 percent of the world's personal computers--with an outdated version of Java that is inconsistent for its users.

Developers are turning to Microsoft's competing language, .Net, instead of gambling on the company's spotty distribution of Java, Sun attorneys told U.S. District Court Judge J. Frederick Motz Tuesday.

Sun attorney Lloyd R. "Rusty' Day said "the harm is happening now,' because Microsoft continues to ship Windows without the latest version of Java, software that runs small applications and designed to be compatible with virtually all operating systems.

By the time Sun catches up, after its $1 billion antitrust lawsuit against Microsoft is settled, it will be too far behind to catch up, attorneys argued.

Sun says antitrust violations by Microsoft, which it accuses of intentionally creating incompatibilities with competitors' products, forced other companies to distribute or use products incompatible with Java. Even wireless computers of the future need a common programming language on desktops to operate, Sun spokeswoman Lisa Poulson said.

But that argument is misleading, said Microsoft attorney David Tulchin, who accused Sun of trying to "engineer the marketplace' by seeking the injunction.

"They don't tell you they expect to have dominance in cell phones, handheld devices and application servers,' Tulchin said as he held up his Blackberry. "They want you to leave their dominance in the rest of the market alone.'

Motz, who is overseeing other antitrust lawsuits against Microsoft by Netscape Communications, Be Inc., and Burst.com, interrupted attorneys for both sides to ask questions, including what would be the effect of the injunction as computing moves off desktop PCs to wireless devices.

He asked Microsoft attorneys if the injunction sought by Sun could be an "attractive remedy.'

"It's so much nicer than trying to have economists come back after the fact and try to figure out what would have been,' Motz said.

Rich Green, a Sun vice president, testified that the injunction is necessary because Microsoft delivers its programming with a version of Java that's five years old.

"It's not only incompatible, it's out of date,' Green said. "Web services, new graphics packages--none of that is in there for application developers.'

Tulchin pointed out a speech Green gave to a conference of software developers in March, when he said at least 56 percent of developers use Java, and a billion wireless communication devices would be using it by 2006.

"That's what the future looked like? Pretty rosy?' Tulchin asked Green.

The request for an injunction is part of a Sun lawsuit filed in March in federal court in San Jose, Calif., and transferred in August to Maryland. The hearings this week are expected to last through Thursday.

The Sun case is one of four private antitrust lawsuits that followed a federal judge's ruling in a suit brought by the Justice Department that Microsoft had acted as an illegal monopoly based on its dominance in desktop operating systems.

Last month, U.S. District Court Judge Colleen Kollar-Kotelly approved a settlement in that case that bars Microsoft from retaliating against or threatening computer manufacturers.

The settlement also compels the software giant to share key technical data with competitors that allow their programs to run more smoothly with Microsoft operating systems.

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