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Microsoft Appeals Java Order
Posted by James Grimmelmann on Thursday, January 23 @ 14:51:15 EST
Contributed by HowardGilbert
Antitrust
HowardGilbert writes "Microsoft requested the Fourth Circuit to stay the order that it ship Sun's Java runtime with Windows and stop distributing its own Java runtime. In the text of its motion, Microsoft makes the ususal injunction arguments (that Sun will not be harmed by a stay, that Microsoft will be harmed if one is not granted, yada yada). The core of the argument, however, is somewhat more interesting.

US antitrust law protects competition but not competitors. Therefore, in the Federal antitrust case, the DOJ did not claim that Sun had been harmed by Microsoft's actions with respect to Java. Rather, it claimed that the ability of some future operating system (say Linux) to compete with Windows is reduced if fewer application programs are written in platform neutral languages like Java. Findings on this claim were the basis for the current order. Yet Judge Motz indicated that the primary reason for an injunction was to level the playing field between Java and .NET competing over the next few years for distributed application development. Microsoft raises a valid point in logical reasoning. Past action that supposedly harmed a future Linux in the OS market is not a basis for injunctive relief to Sun (non Linux) in a future market for application runtimes (not operating systems).

Which is not to say that the "must carry" provision for Java is not good policy, or that a level playing field between .NET and J2EE would not be desirable. However, US antitrust law must be applied following some resonable and consistent logic."

 
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Re: Microsoft Appeals Java Order (Score: 1)
by HowardGilbert on Thursday, January 23 @ 16:13:35 EST
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After thinking about the argument, I believe I can explain the problem in terms of the legal issues:

The DOJ claimed in the Federal case that Microsoft violated Sections 1 and 2 of the Sherman Antitrust Act by incorporating browser function into the operating system and by making extensions to the Java programming language. They argued that integrated browser function violated the rule against Tying a product in a distinct market (the browser) to a product in which the company has monopoly power (Windows). It also argued that browsers and Java undermined the "application barrier" preventing new operating system vendors from competing with Windows, thereby illegally Maintaining the monopoly.

The appeals court ordered that the Tying claim had to be retried. On Sep. 6, 2001 the DOJ dropped this claim and proceeded only with the Monoploy Maintenance charges. [Subsequently the "non settling states" not only tried to get a remedy for the Tying claim they had dropped, they also tried to add additional examples of "tied" products like Media Player. Their effort failed.]

The DOJ claims failed because operating system software and components seem to fall into the cracks between Tying and Maintenance. A pure Tying claim fails because the operating system is not really unrelated to a browser that exposes a way to program the user interface based on Web standards. A pure Maintenance claim requires a threat to the Windows operating system, that can only be provided by another OS. Browsers and Java do compete to be selected as the strategic technology used for future application designs. Therefore, although Tying and Maintenance have problems argued individually, there is some plausible claim you might make drawing on both theories that, in the special case of computer systems, there are strategic markets in which not completely unrelated products compete not for the survival of the OS, but for the important part of its future. The decision not to argue any novel claims precluded such an approach, and the two conventional arguments failed on their own.

This brings us back to the logical problem in the Sun injunction. To get an injunction before the trial, Judge Motz based his order on Findings established in the Federal case. That way he didn't have to wait for new evidence in the new trial. However, his wish to level the playing field in the contest between Java and .NET was really a new Tying claim. As the DOJ claimed in its case that IE was tied to Windows in a way unfair to Netscape, the new order really claims that .NET is potentially tied to Windows in a way that is unfair to Java. The "must carry" provision instead ties both .NET and Java equally to Windows.

The Federal case never included Java in the Tying part of the case. Only IE was mentioned in Tying (and that charge was eventually dropped), while Java was mentioned only in Monopoly Maintenance. To show Maintenance, you have to have a threat to Windows monopoly. The threat has to come from another operating system. Thus the fiction that Linux, not Java was harmed.

If you believe that Java "must carry" is a good policy, and that its absence gives Microsoft an unfair advantage, you still have to admit that you are making a Tying claim. The points of law established on Java in the Federal case applied to a different charge, different theory, different type of harm to a different party. That is not to say that you cannot plausibly make the Tying claim. Remember that in the Federal case, Tying was dropped, not reversed. However, if you want to make the claim, almost nothing in the previous case will really be on point. Motz is trying to take a shortcut around the evidence that isn't logically available to him. This is a new claim about a new market that will develop in a new decade.


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Re: Microsoft Appeals Java Order (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, February 03 @ 22:18:00 EST
Today (Feb 3) the Fourth Circuit granted Microsoft's request for a stay of the injunction pending resolution of the appeal. A news story [news.com.com] is available.


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