Sun sues Microsoft over Java, antitrust issues

Sun Microsystems Friday said it has filed a private antitrust lawsuit against Microsoft over what it says are past and continuing efforts by the software giant to undermine Java. Sun claims that Microsoft engaged in a campaign of anticompetitive conduct.

In part, the suit stems from Microsoft's decision to eliminate a Java Virtual Machine from Windows XP. Sun said the suit is based on past actions by Microsoft, but also accuses the company of current practices that restrict competition and threaten developers who depend on open software.

Sun is seeking a preliminary injunction requiring Microsoft to distribute Sun's current binary implementation of the Java plug-in as part of Windows XP and Internet Explorer, and to stop distribution of Microsoft's Java Virtual Machine through separate downloads.

The company is also seeks a permanent injunction requiring Microsoft to disclose and license proprietary interfaces, protocols, and formats and to unbundle tied products, such as Internet Explorer and the .Net framework. Sun has asked for treble damages.

Sun noted in the suit, filed in the U.S. District Court in San Jose, that a U.S. federal court of appeals in June last year upheld a finding that Microsoft had been guilty of abusing its monopoly power, in part because of its dealings with Sun and the Java platform.

"It (the new Sun lawsuit) is about determining the extent of that damage, how to fix it and not to stop it from reoccurring," said Michael Morris, senior vice president and general counsel at Sun, during a conference call with press and analysts. "I don't think this comes as a surprise to anyone."

Sun claims that Microsoft's "ultimate goal" is to dominate access to the Internet to the point where users would have to use a Microsoft product every time they connect to the Web. With its desktop and server operating systems, browser and .Net technology, Microsoft would be able to create "choke points" for using the Internet, Morris said, during the conference call.

"That would be a tragedy for the industry as a whole and for consumers," Morris said.

Morris was asked to confirm reports in which he was quoted as saying that the Sun suit seeks damages of more than US$1 billion. While Morris declined to give an exact figure, he said "substantial damages are provable" and that parts of Sun's hardware business had suffered due to Microsoft's actions.

The companies' legal battle over Java goes back to 1997, when Sun filed a lawsuit against Microsoft in which it made similar claims. As part of a settlement in that case reached in January last year, Microsoft agreed to pay Sun $20 million and adopted a new Java licensing agreement that greatly limited the way in which it could use Java. It was also barred from using the Java logo on its products.

Sun said that its new lawsuit is broader in scope that the breach-of-contract suit it filed in 1997. Terms of the settlement reached in the original lawsuit "specifically provided that Sun did not release any of its claims under antitrust laws," the company said in a statement on its Web site.

The new lawsuit expands the sanctions against Microsoft being pursued by the U.S. states that have yet to reach a settlement with Microsoft in its antitrust battle with the U.S. government, Sun said. In that case, the U.S. Department of Justice and nine of the suing states have agreed to settlement terms with Microsoft, while a further nine states plus the District of Columbia are pushing for harsher sanctions.

"This private antitrust lawsuit is intended to restore competition in the marketplace by removing unlawful barriers to the distribution of the Java platform and to interoperability between Microsoft software and competitive technologies," Sun said in its statement Friday. "The achievement of these goals will allow for greater innovation and increased customer choice.''

A Microsoft spokesman said the company has not had time to review the lawsuit, but had several immediate points to make.

"It's time to move past these issues, many of which are related to a lawsuit the parties settled last year," said Jim Desler, a Microsoft spokesman.

"Sadly, the real losers in this type of litigation are software developers. The industry is at its best when we focus on innovation and developing great products."

Desler said any lack of acceptance of Java is Sun's responsibility.

"Millions of consumers using Windows easily access and use Java technology every day. Java technology is widely used and any lack of consumer acceptance of Java is due to Sun's own failures and not actions by Microsoft."

In the new lawsuit, Sun charged, specifically, that Microsoft tried to fragment the Java platform by "flooding the market" with Java Runtime Environments that are incompatible with Sun's technology. It accused Microsoft of forcing other companies to distribute or use incompatible products, and also said the company is guilty of copyright infringement for distributing an unlicensed version of Java.

Since it filed its original lawsuit in 1997, Sun has argued that Microsoft sees Java as a major threat to the hegemony of Windows, in large part because Java programs can run on any operating system. Microsoft distributed its "polluted" version of Java in a bid to break Java's cross-platform capabilities and limit its popularity, Sun has argued. Microsoft has vehemently denied any wrongdoing, saying that it stuck to the letter of its licensing contract with Sun.

Sun additionally claims, however, that Microsoft designed its .Net technology as a response to Java, and made it more difficult for users to access Java, hoping that it could "buy time" for building out .Net, Morris said.

Sun joins operating system vendor Be and AOL Time Warner's Netscape division, which also filed private antitrust suits against Microsoft in the wake of the federal courts' finding that Microsoft is a monopoly company that broke antitrust laws.

"This is Sun going to its last resort," said David Smith, senior analyst at Gartner Inc. "They're not liking what the legal system has produced in terms of the antitrust case, and not having any other choice but to go after them (Microsoft) in a private suit. I'm not the least bit surprised."

While the court battle is likely to be a lengthy one, some legal experts said the Appeals Court ruling against Microsoft could help Sun prove its case.

"To the extent that the facts are relevant to Sun's lawsuit, they are already established and the policy is that federal courts shouldn't spend time establishing the same set of facts," said Dana Hayter, an attorney for Howard, Rice, Nemerovski, Canady, Falk & Rabkin, in San Francisco. "They still have facts they need to prove (but the monopoly finding) takes them a long way."

Additional reporting by Network World's John Fontana.

The IDG News Service is a Network World affiliate.