Microsoft limbers up for a legal long haul

Software giant flexes its muscles in fight against arch-rival Sun and court battle with US government over Internet Explorer.

Microsoft went gunning for its enemies last week after filing aun and court battle with US government over Internet Explorer. countersuit against Sun Microsystems in the ongoing Java dispute and telling a court that it needs to be free of interference from the US government.

Last month Sun sued Microsoft for breach of contract for bundling what it alleged was not 100 per cent Pure Java in Internet Explorer 4 (PC Dealer, 17 September). But last week Microsoft hit back with a 35-page document in which it accused Sun of breach of contract, breach of good faith and unfair competition.

The software giant was seeking a dismissal of the Sun suit, a ruling that Sun is in breach of the licensing agreement, unspecified financial damages and a revocation of Sun's rights to the Microsoft implementation of Java.

Sun's official response was to dismiss Microsoft's latest move as a 'garden variety legal tactic', but the countersuit ups the stakes in an increasingly bitter war between the two companies.

Tom Burt, associate general counsel for Microsoft, said: 'We are disappointed it has come to this, but we have upheld our end of the bargain. Sun has not.'

Microsoft outlined its accusations against Sun in a statement posted on its Web site. It claimed Sun failed to deliver upgrades of Java which were compatible with earlier versions, and failed to inform Microsoft promptly of modifications to Java.

'Despite Microsoft's demands that Sun replace the upgrade with one that would pass all the test suites, Sun has refused to do so,' MS claimed.

It went on to allege that Sun had made a series of false statements, including that all Java licensees have the same terms, that Microsoft's software development tools are incompatible and that IE is both incompatible and has failed to pass the tests it is required to undergo.

Microsoft also insisted that the agreement it signed with Sun did not oblige it to 'market, sell, license or otherwise distribute the Java technology, or derivative works thereof, either alone or in any product'.

The company added: 'Other than with respect to Internet Explorer 3, Microsoft, not Sun, would determine whether to include the technology in Microsoft products.'

Finally, MS claimed that under the terms agreed with Sun, Microsoft could produce technology similar to Java or which 'performs the same or similar functions as the technology in addition to, or in lieu of, the technology'.

Sun has not acted in good faith, alleged Microsoft. 'Sun has failed to live up to its obligations, even after Microsoft helped it on numerous occasions with technical assistance and other resources,' claimed the statement.

'The public is right to be suspicious of Sun's claims,' it added, 'since it has never made any test suites publicly available as required by the agreement so that people could test for themselves.'

Meanwhile, at the first federal court hearing of the Justice Department's suit against the software giant for contempt and breach of consent decree, Microsoft lawyers argued that it needed to be free of government interference and to retain 'liberty to design products to meet customer demand'.

The company also openly questioned whether it should be subject to government scrutiny at all. In a letter to the court, Microsoft argued: 'The Justice Department's petition raises extraneous issues that do not warrant plenary consideration by the court.'

The Justice Department was concerned that Microsoft's bundling of IE with W95 created an unfair competitive advantage. But Microsoft argued that the government's case was based on 'amorphous considerations such as the perceptions of competitors and customers about whether Windows 95 and IE are separate products'.

The software giant insisted the Justice Department was perfectly aware that IE was going to be part of W95. 'Windows 95 has contained internet browsing features since it was provided to computer manufacturers in July 1995 - more than two years ago and one month before the consent decree was entered into,' it argued.

'The DoJ clearly knew Windows 95 would include browsing functionality before the consent decree negotiations began.'

The next hearing is expected to be held at the end of November.