federal appeals court gave Microsoft
a reprieve yesterday by sweeping aside a lower court injunction that
ordered the company to distribute the Java software of its rival Sun
Microsystems.
Microsoft's victory was qualified, however. The three-judge panel
of the United States Court of Appeals for the Fourth Circuit in
Richmond, Va., upheld a second preliminary injunction by the lower
court that told Microsoft to stop distributing its version of Java
technology because it probably violated Sun's copyright on the
software. The second opinion, legal experts said, suggests Sun has a
fairly strong case in its private antitrust suit against Microsoft.
The appeals court ruling means Microsoft will not be forced to
include a competitor's technology in its Windows operating systems
for personal computers. That removes a potential headache for the
company and echoes the stance taken by the court overseeing the
remedy phase of the government's antitrust suit against Microsoft.
In that case, brought by the Justice Department and several
states, Judge Colleen Kollar-Kotelly rejected a proposal from some
states that Microsoft be required to distribute Sun's Java.
Yet the practical effect of yesterday's ruling on the computing
marketplace — and Sun's lawsuit in general — is quite limited,
industry analysts said.
After the preliminary injunction was issued by Judge J. Frederick
Motz of Federal District Court in Baltimore last December, Microsoft
stopped distributing its version of the Java software, a practice
that Sun said violated its copyright and license rights. So
Microsoft is already complying with the other injunction that was
upheld yesterday.
Earlier this month, personal computer makers including Dell and
Hewlett-Packard,
the market leaders, announced they would load Sun's Java software on
their machines. Sun says it expects most PC makers to license Java.
So the Java technology is being distributed on personal computers
without a court order.
"History and market forces have largely passed this case by,"
said Dwight B. Davis, an analyst at Summit Strategies, a research
firm.
There was barely a ripple of reaction on Wall Street to the
appeals court ruling. Shares of Microsoft rose 49 cents, to $25.75.
Sun fell 10 cents, to $4.79 a share.
A Microsoft spokesman, Jim Desler, called the appeals court
decision "a positive step" in what he said promises to be "a long
legal process." No date has been set for a trial in the private
antitrust case, but it is expected to be sometime in 2005.
Sun applauded the court's ruling to uphold the injunction on the
copyright and license issues. "We feel pretty darn good about our
chances," said Lee Patch, Sun's vice president for legal
affairs.
Sun executives insist that its suit can still have an effect
beyond the $1 billion in damages it is seeking from Microsoft. Java,
they say, can be a force for greater competition and innovation in
the PC software business.
Sun's private suit against Microsoft was a follow-on case, filed
after the 2001 ruling in the government antitrust case. In that
landmark decision, a federal appeals court found Microsoft was a
monopolist that repeatedly violated antitrust laws.
Two companies, Netscape Communications and Sun, were the featured
corporate victims in the narrative of that suit. Netscape's browser
software and Sun's Java technology — software that runs on many
different operating systems — posed a threat to Microsoft's PC
operating system, the suit contended. Several tactics in Microsoft's
campaign to thwart the Netscape-Sun challenge to Windows were
illegal, the court ruled. Netscape's parent, AOL
Time Warner, settled its private suit against Microsoft in May,
receiving $750 million.
Sun's argument for an injunction forcing Microsoft to carry Java
focused on a developing market for software beyond the PC operating
systems — a middleware layer for distributed computing, linking many
machines, using Internet standards. The Microsoft initiative in this
market is called .Net, which is closely tied to Windows. Several
other companies including Sun and I.B.M.
are building middleware using Java.
Sun argued that unless Microsoft was forced to carry Java it
would use its market power to give it an unfair advantage in the
market for distributed middleware.
Judge Motz agreed with Sun that there was a "serious danger" that
Microsoft could use its power to "tip" the market to .Net and stifle
Java. But in its 28-page ruling, the appeals court ruled yesterday
that Judge Motz had been "unable to find immediate and irreparable
harm" to an emerging market where Microsoft does not hold a dominant
position.
So, the appeals court decided, a must-carry injunction to give
Java a helping hand was not justified.