The Empire Strikes Back: Microsoft Countersues Sun

If you had any doubt that the Sun and Microsoft legal battle over Java and .NET was going to get uglier, then consider the latest developments in the case, which has been generating headlines since a federal judge ordered Microsoft to bundle Sun's Java technology in Windows. Last week, Microsoft countersued Sun, alleging that the company broke a contract with the software giant that granted Microsoft the ability to distribute its own Java version.

Microsoft contends that the contract, issued in the days after the companies settled their previous Java lawsuit in January 2001, included an agreement that let Microsoft distribute its Java Virtual Machine (JVM) through 2008. Microsoft isn't specifying damages in the suit but instead asks Judge J. Frederick Motz to determine an appropriate amount at trial. In Sun's current suit against Microsoft, the company alleges (among other things) that Microsoft has no right to distribute any Java versions other than Sun's.

The language in Microsoft's 51-page brief says much about the animosity between the two companies. "For nearly a decade, Sun has instigated lawsuits against and governmental investigations of Microsoft based on alleged violations of antitrust and copyright laws in an effort to impede Microsoft's competition with Sun in the marketplace," the counterclaim reads. "Sun has no product strategy to counter Microsoft's investment in creating innovative and useful software, and therefore attempts to obstruct Microsoft through litigation."

Microsoft's legal case is interesting. By forcing Sun to formally respond to the Microsoft JVM issue, the software giant is putting Sun in two contradictory legal positions. According to its pending lawsuit, Sun says Microsoft must be forced to bundle Java technology in Windows because Microsoft previously harmed the technology. But in responding to the current countersuit, Sun must argue that Microsoft cannot bundle its Java technology in Windows. Though the disparate opinions are explainable--Sun will argue that Microsoft's Java version is incompatible with Sun's version and thus pollutes the Java market--Sun still seems to be in a precarious legal position.

Microsoft's case against Sun also goes beyond simple legal semantics. In addition to the previously mentioned charge, Microsoft also says that Sun has purposefully filed its antitrust case against Microsoft "willfully and deliberately with an intent to cause competitive injury to Microsoft and to aid Microsoft's competitors." In other words, Microsoft says that Sun is "seeking to relitigate the United States government's action against Microsoft."

The whole Java mess is, of course, reminiscent of Microsoft's browser wars with Netscape. I've recently revisited the browser wars through various books about Netscape and an interesting PBS documentary called "Code Rush." One message that's come through loud and clear, with the benefit of hindsight, is that Netscape never really had a chance. Not only was its technology rushed to market, poorly written, and overly aggressive in its practice of side-stepping existing standards, but the company lacked the talent and infrastructure to deal with the threat from Redmond.

This analysis doesn't change the fact that Microsoft acted illegally to defeat Netscape. But there is little doubt now that the result would have been the same: Netscape was destined to surrender the browser market to Microsoft. Looking at Sun and Java, I'm beginning to have lingering doubts about whether this legal posturing will change the underlying technical challenges Sun faces in getting Java established as a Web services standard. Compared with .NET, Java is woefully inadequate in many areas, despite its years-long head start. And it's hard to imagine the outcome of this battle being demonstrably different from what happened to Netscape half a decade ago.

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