At the end of a second day of hearings in Sun Microsystems' lawsuit against Microsoft, a federal judge unexpectedly recommended that Sun consider easing its complaint against Microsoft and let the case go to trial. Although Judge J. Frederick Motz didn't explain the comments further, he suggested that Sun consider dropping its preliminary injunction to force Microsoft to bundle Java with Windows and set aside its claim for more than $1 billion in damages. Sun said it would consider the advice. If the judge had granted Sun a preliminary injunction, Microsoft would have been forced to bundle Sun's Java version with Windows immediately, but Sun would first have had to show that Java would suffer immediate and irreparable damage because of Microsoft's actions.
Because the damage claim would require lengthy hearings, legal experts believe that Judge Motz is basically offering Sun a way to fast-track its case against Microsoft. And, as Judge Motz noted in a previous decision, the US District Court for the District of Columbia already established Microsoft's liability through the Findings of Fact in the company's wider antitrust case, much of which Judge Motz ruled is applicable in the Sun case.
In 2 short days of hearings, Judge Motz has been decidedly friendly toward Sun's request that Microsoft be forced to bundle Sun Java with Windows. Tuesday, for example, Motz said the bundling plan was an "elegant solution."
In yesterday's hearing, economist Dennis Carlton, a Sun witness, said that Microsoft is overstating Java usage in the market because much of the installed base uses Microsoft's outdated, incompatible version. Interjecting at that point, Judge Motz did a decent Judge Thomas Penfield Jackson impersonation when he noted, "Not only does \[Microsoft's incompatible Java version\] overstate \[Java's installed base\], I would think that having noncompliant Java machines would be a detriment \[to Sun\]."
Microsoft argued that forcing the company to bundle Sun's Java would be prohibitively expensive for Microsoft, especially if Sun weren't limited as to the size of the bundled technology. "Let's force Microsoft to carry bad technology and burden consumers," Microsoft Attorney Michael Lacovara sarcastically suggested. "Either in economics or in law, you don't have a right to piggyback on somebody else just because they're successful."