Will Forcing Microsoft to Carry Java Create an Even Playing Field?

US District Judge J. Frederick Motz recently granted Sun Microsystems a preliminary injunction in its antitrust lawsuit against Microsoft, requiring the software giant to bundle Sun's Java programming language in Windows OSs. The ruling was unprecedented in the technology industry, although the judge pointed to legal precedent in other industries in his 42-page ruling.

As Microsoft Chairman and Chief Software Architect Bill Gates once complained about a similar proposal involving Netscape, bundling Java with Windows is like "asking Coke to include a can of Pepsi in every six pack." However, Judge Motz is interested only in leveling the playing field and undoing the damage Microsoft wrought when it illegally attacked Java. Will this ruling level the playing field?

To understand this complex case, you need to look back to Microsoft's December 1995 announcement that it would license Java from Sun, which the companies finally accomplished in March 1996. Microsoft said at the time that it would include Java in Windows, Internet Explorer (IE), and other products, and would develop its own Java implementation, including a Java programming environment called Visual J++.

However, as was later demonstrated in Microsoft's epic antitrust battle with the US government and 19 states, Microsoft never intended to be a good Java licensee. Instead, the company plotted internally to "wrest control of Java away from Sun," according to court documents, by creating an incompatible Java version that worked only on Windows and wasn't a cross-platform program. This strategy was in conflict with Sun's "write once, run many" mantra for the Java environment. Microsoft's scheme was simple, as court documents prove: By dividing the market for Java between Windows and non-Windows implementations, Microsoft could stall Java's growth while it prepared a competing technology that, in 1996 and 1997, wasn't even on the drawing boards. That technology, of course, became known as .NET.

Microsoft performed other illegal acts to hamper Java's success. Because Sun's main distribution mechanism was bundling Java with the then-successful Netscape Navigator Web browser, Microsoft struck anticompetitive deals with ISPs that forced the ISPs to provide IE, rather than Navigator, to their customers in return for free Microsoft server and desktop software.

In March 1998, Sun sued Microsoft and charged the company with unfair competition, claiming that Microsoft infringed on Sun's intellectual property and violated Sun's trademark for Java. Like the wider antitrust trial, the resulting Java trial proved damaging to Microsoft's credibility, and the companies eventually settled the case, with Microsoft paying Sun $20 million.

At this point, the situation gets murky. Microsoft agreed as part of its settlement to stop making changes to Java and was forced to ship only an outdated Java version in its products. And by this time, of course, its .NET initiative—originally known as Next Generation Windows Services (NGWS)—was in full swing. Microsoft had a Java killer waiting in the wings: the .NET Common Language Runtime (CLR) environment, XML-based Web services, and C#, a Java-like language.

For Sun, the legal victory was bittersweet because the damage had already been done. Although millions of developers supported Java, the program would see only a smattering of success on Windows, the dominant desktop and server platform. Without a viable Windows offering, Sun could see Java eventually become a niche player like Borland Software's Delphi development environment or the Novell NetWare server product.

The Turning Point
The turning point in this battle was when Microsoft lost its federal antitrust case. During that trial, Judge Thomas Penfield Jackson established a set of legal facts, later upheld on appeal, proving that Microsoft illegally hindered the distribution of Java. Any party could use these facts in independent lawsuits against Microsoft, and Sun responded with a $1 billion suit against the software giant in 2001. As part of this suit, Sun asked the courts to require Microsoft to bundle Sun's Java technology with Windows and IE, in the way Microsoft was starting to bundle .NET. According to Sun's argument, because Microsoft acted illegally to limit Java's distribution, the company should be forced to make Java available by using the same distribution method Microsoft uses for .NET.

Judge Motz apparently agreed with this argument. In his ruling, the judge wrote that Sun's remedy proposal "is sound ... and appropriate." And on December 23, 2002, he ruled that Microsoft would bundle Sun's Java with Windows within 90 days of the ruling. Microsoft, of course, is appealing the ruling, and the two companies will eventually meet in court to determine whether the injunction will be permanent.

Motz wrote in the ruling, "Confronted with an innovative product \[Java\] for which it had no substitute (even on the drawing board) and which threatened its monopoly in the \[OS\] market, Microsoft devised and implemented a strategy to deprive Sun of the benefits of Sun's ingenuity and to deprive the consuming public of the full benefits of Sun's invention. Microsoft embraced Java for the purpose of destroying it. At the least, Microsoft bought itself time (seven years, as it turned out) to develop its own competitive product, and it is now bringing that product \[.NET\] to a market its own antitrust violations have substantially distorted. This conduct ... fully justifies denying Microsoft a competitive advantage obtained by its antitrust violations."

Although you can't argue against the merits of the .NET Framework—the technology is excellent, according to programmers—Judge Motz's characterization of Microsoft's behavior regarding Java is accurate and supported by the legal record. I believe that forcing Microsoft to bundle Java alongside .NET is fair. If .NET is truly the superior technology—as I believe it is—then Microsoft has nothing to fear. If, however, .NET is nothing more than Microsoft's shallow attempt to usurp Java from Sun, perhaps .NET deserves an ignoble fate. I'm interested in what you think: Is this ruling fair? Does Microsoft deserve to be punished? Drop me a note and let me know.

TAGS: Windows 8
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