Microsoft's lawyers on Wednesday pecked away at Sun Microsystems Inc.'s claim that it needs a judge to level the Web services playing field, suggesting that Sun's actions -- rather than Microsoft's -- have affected Java's ability to compete.
As part of its private antitrust lawsuit against the software giant, Sun is asking U.S. District Judge Frederick Motz to order Microsoft to carry a Sun-authorized version of Java with the Windows operating system and Internet Explorer browser.
But during the second day of testimony in the preliminary injunction hearing, Microsoft lawyer Michael Lacovara produced an internal Sun memo from early this year, saying the company needed to make improvements to its own Java Virtual Machine (JVM) in order to compete better with Microsoft's version of the product.
The memo, titled "Java Desktop Client Strategy," recommended Sun improve its JVM's graphics performance, address stability problems and reduce its startup time and footprint to better compete with Microsoft's JVM, which Sun contends is out of date and incompatible with the version of Java being used elsewhere by the industry.
Sun lawyers are asking Motz to order Microsoft to stop distributing its JVM because, they claim, the Microsoft version is incompatible and is causing confusion among developers.
Lacovara tried to get Sun witness Dennis Carlton, an economics professor at the University of Chicago, to admit that factors such as Java's performance issues may have held back the acceptance of Java and hindered its ability to compete with Microsoft's .Net platform for developing Web services.
Lacovara suggested that .Net would enjoy the advantage of being distributed through the dominant Windows desktop operating system even if Microsoft hadn't been found guilty in 1999 of federal antitrust violations.
"So you would agree with me that even if Microsoft had not acted illegally it would have a distribution advantage?" Lacovara asked. "You know for certain Java is in a worse position because of the bad acts?"
Carlton wouldn't bite.
"All I'm saying is ... no matter what (Sun) has done, these acts I've described as bad conduct have worsened the position of Sun," he said.
Carlton testified earlier that the Web services marketplace -- in which Java and .Net are the two main rivals -- is susceptible to"tipping," when one development platform steamrolls over its rivals because everyone wants to write to the platform that is distributed most widely. He said without the judge's intervention, .Net could trounce Java in the same way that Windows and Internet Explorer pushed out competing products.
"The more applications that are specific to an operating system, the more demand for that operating system," Carlton said.
Motz asked why the Web services market couldn't support multiple development platforms. Carlton said that's a possibility, but said it is less likely to happen without the judge ordering Microsoft to distribute Sun-compatible Java.
Microsoft witness Andrew Layman, the company's director of XML Web service standards, testified, however, that the expanding Web services market will allow developers to deliver applications to a variety of computing devices using a variety of technologies, without end users knowing what development platforms are being used. Because of that interoperability, the Web services market is less likely to have one platform dominate, Layman argued.
Developers are then "motivated by a lot of other factors than the software that's running on the computer you want to use," Laymansaid.
Microsoft witness Chris Jones, vice president of the Windows Client Group, argued that the Sun injunction would cause severalproblems for Microsoft. He said the proposed order, which would require Microsoft to add the current version of Java to any new operating system 90 days before it ships, could take longer than 90 days to integrate into Windows, thus pushing back its shipping date.
Jones also said the order could expose Microsoft to any intellectual property disputes that arose against Sun's Java. For example, he said, it could allow Sun to include other programs in the JVM code it gives to Microsoft, and because the order wouldn't allow Microsoft access to the JVM source code, it could expose Windows to security problems.
Sun lawyer Robert Galvin questioned whether Jones and Microsoft had tried to hurt Java by creating its own JVM. He produced a memo written by Jones from September 1995 recommending Microsoft "jump on the Java bandwagon and take control" of its class libraries and runtimes.
Galvin suggested this "embrace and extend" tactic was one way for Microsoft to stifle the growth of Java. "Based on your experience, if two platforms offer similar functionality, developers will choose the platform with the little bit larger market share, won't they?"
Jones admitted he'd that made a similar remark in a deposition, but added, "no platforms ever have the same functionality."
Microsoft witnesses disputed Sun's claim that Microsoft tried to kill Java by distributing an incompatible JVM. Sanjay Parthasarathy, corporate vice president of Microsoft's platform strategy and partner group, said the Microsoft JVM was distributed because of an agreement between Sun and Microsoft in a copyright lawsuit settled in January 2001. Parthasarathy said Sun agreed to give Microsoft a limited license to distribute the Microsoft JVM until January 2008.
The preliminary injunction is one of a variety of remedies that Sun is seeking, including monetary damages and a permanent injunctionthat would require Microsoft to license certain proprietary software interfaces to other companies and to "unbundle" products such as Internet Explorer and the IIS Web server.
These remedies are similar to those sought by the U.S. states that declined to sign on to a settlement agreed to between Microsoft and the U.S. Department of Justice. Microsoft also faces private lawsuits filed by Be Inc., AOL Time Warner Inc., which owns Netscape Communications Corp., and Burst.com Inc. These suits are being coordinated and presided over by Motz.
Final arguments in the injunction hearing are scheduled for Thursday.