Java decision could sway DOJ case

WASHINGTON--Although an outcome in the Microsoft antitrust trial is months away, a decision in another lawsuit that is expected any day could have a profound effect on how proceedings here take shape, legal experts said.

In early May, Sun Microsystems expanded its suit against Microsoft to include claims that the software giant competed unfairly when it created its own flavor of Java, the programming language Sun designed to run on any computer regardless of its platform. A week later, the Justice Department (DOJ) and 20 states echoed those allegations in broad antitrust suits. Like Sun, they claim that the software giant sought to "pollute" Java because it threatened Microsoft's dominant position in the market.

Sun, which claims Microsoft's version of Java is not cross-platform compatible, is seeking a court order requiring Microsoft to alter the Java code it includes in every copy of its Windows operating system and Internet Explorer browser. U.S. District Judge Ronald Whyte of San Jose, California, is expected to rule on the matter soon. Whatever the decision, three antitrust experts agreed, it is likely to have a pivotal effect on the ultimate outcome of the government's antitrust case.

"If Whyte issues an order that rejects [Sun's] request and says Microsoft effectively has a right to do what it does with Java, it pretty much takes Java off the table as an example of bad action by Microsoft," said Rich Gray, an antitrust attorney at Bergeson, Eliopoulos, Grady & Gray. In light of such a ruling, he added, "all that stuff about polluting Java can be relegated to locker-room talk."

William Kovacic, a visiting professor at George Washington University law school, agreed, noting that a ruling favorable to Microsoft would make "it harder for [the government] to show that the company's choice of strategy was unreasonable."

Conversely, a finding that Microsoft used its implementation of Java to compete unfairly against Sun "will be a significant setback" to the software giant, added John Steele, an attorney with Fenwick & West. Either way, said Steele, who has represented Sun in the past, the decision is likely to be "highly significant," to U.S. District Judge Thomas Penfield Jackson, who is presiding over the antitrust case.

The government contends that Microsoft viewed Java as a threat to Windows. Executives allegedly worried that if Java gained momentum, software developers would prefer to write their applications for the Java platform because it would run any computer. By contrast, Windows runs largely on Intel-based machines.

To stem that perceived threat, the government and Sun allege, Microsoft created a version of Java that runs best only on Windows. The plan, according to internal Microsoft email entered into evidence in both cases, was to "kill cross-platform Java" by "polluting" it with a Windows-specific version.

The government alleges that Microsoft's Java strategy is part of a pattern of conduct that violates antitrust law. A ruling from Whyte that Microsoft did nothing wrong in creating a Windows-optimized version of Java could be Microsoft's biggest win to date, Gray said.

The government already suffered a major setback in June, when a federal appeals court overturned a ruling against Microsoft in a related case. It held that the folding of Internet Explorer into Windows was likely to pass antitrust muster, as long as there was a "plausible benefit" to consumers. Although the ruling formally applied only to the earlier case, the government recognized it as a threat to its current case, which had emphasized actions Microsoft took to allegedly knock Netscape Communications out of the market.

Not everyone agrees, however, that Whyte's decision will have a significant effect on the case under way here. Steven Salop, a professor at Georgetown University Law Center, said there are big differences in the cases filed by Sun and the government. "I think [Whyte's decision will be] relevant, but I don't think it's going to decide the case one way or the other," Salop said.

George Washington's Kovacic conceded that each side will have room to maneuver no matter how the ruling turns out. A win for Microsoft, for instance, "would not preclude the government from saying the company's specific use of its contractual rights had a deliberately exclusionary purpose," Kovacic said. By the same token, a ruling that Microsoft breached its contract with Sun would not automatically prove that the software giant violated antitrust law.

Still, the decision--if issued before Sun executive James Gosling takes the stand--could strongly affect his testimony. It also has the potential to be extremely important in other respects. For one thing, it could affect the government's efforts to prove that Microsoft hurt competitors' abilities to distribute products--something it must do to prevail in the landmark antitrust case. And for another, it could carry weight if the case ultimately is appealed, which most observers agree is almost inevitable.

"If Microsoft wins, I'm going to be saying that that's a more important victory than the court of appeals victory," Gray said.

After a break for the Veteran's Day holiday, Microsoft's antitrust trial in Washington is set to resume today with more testimony from Intel senior vice president Steven McGeady. On Tuesday, Microsoft attorneys showed videotaped deposition from McGeady's boss that contradicts McGeady's claims that Microsoft pressured Intel to drop development of software that threatened Windows. The cross-examination is expected to continue today.