Microsoft went gunning for its enemies on Monday, filing a countersuit against Sun Microsystems in the ongoing Java dispute and telling a court that it needs to free of interference from the US Government.
Last month Sun sued Microsoft for breach of contract for bundling what it alleges is not 100% Pure Java in Internet Explorer 4.0. On Monday Microsoft hit back with a 35 page document in which it accuses Sun of breach of contract, breach of good faith, and unfair competition.
The company is seeking the dismissal of the Sun suit, a ruling that Sun is in breach of the licence agreement, unspecified financial damages, and a revocation of Sun's rights to the Microsoft implementation of Java.
Although Sun's official response was to dismiss Microsoft's latest move as a 'garden variety legal tactic', the counter suit ups the stakes in what is an increasingly bitter war between the two firms. Tom Burt, associate general counsel for Microsoft, said: "We are disappointed it has come to this, but we have upheld out end of the bargain. Sun has not.'
In a statement posted on the Microsoft Web site, the company outlined its accusations against Sun. It claims that Sun failed to deliver upgrades of Java which were compatible with earlier versions and failed to inform Microsoft promptly of modifications to Java. In the suit, Microsoft accuses Sun: 'Despite Microsoft's demands that Sun replace the upgrade with an upgrade that would pass all the test suites, Sun has refused to do so.'
It goes on to claim that Sun has made a series of false statements including that all Java licensees have substantially 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 pass.
Microsoft also insists that the agreement that it signed with Sun does not obligate to 'market, sell, license or otherwise distribute the [Java]technology, or derivative works thereof, either alone or in any product.' It adds:' Other than with respect to Internet Explorer 3.0, Microsoft, not Sun, would determine whether to include the technology in Microsoft products.' Finally it claims that under the terms agreed with Sun, Microsoft can produce technology that is 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 acted without good faith, alleges Microsoft. 'Sun has failed to live up to its obligations, even after Microsoft helped Sun on numerous occasions with technical assistance and other resources,' says the statement.
'The public is right to be suspicious of Sun's claims,' it adds, 'since they have 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 for contempt and breach of consent decree, Microsoft lawyers argued that the company needs to be free of 'government interference' and to retain 'unfettered liberty to design its products to meet customer demand.'
It also openly questioned whether it should be subject to such government scrutiny at all. In a letter to the court, t Microsoft argues that: 'The Justice Department's petition raises extraneous issues that do not warrant plenary consideration by the court.' The Justice Department is concerned that Microsoft's bundling of IE with Windows95 creates an unfair competitive advantage. But Microsoft argued that the government's case is based on 'amorphous considerations such as the 'perceptions' of competitors and customers about whether Windows95 and IE are separate products.'
Lawyers for the Justice Department asked US District Judge Thomas Penfield Jackson to order Microsoft to be more flexible with the non-disclosure requrements of its licences. Although the software supplier has said that companies with government contracts may speak to the Justice Department, this is not enough for the government. "The problem is for the rest of the world who don't know about [it],' said the Justice Department legal team.
Microsoft won a little more time to prepare its case. Attorney General Janet Reno had given the company 11 days to respond to the department's allegations. But Judge Jackson ruled that the company should have ten more days, followed by a further ten day period when the Justice Department would be expected to file its own response.
Microsoft filed a statement with the court over the weekend which insists that the Justice Department's petition cannot be resolved by agreement and that further discovery procedures are needed. Microsoft attorney Richard Urowsky explained: 'There are major areas of factual dispute in this case. The first is the nature of the technology at issue: when it was developed, when it was introduced, and what the government knew about it.' Resolving this will require access to documents drawn up at the time the 1995 consent decree was drafted.
The software supplier insists in its statement that the Justice Department was perfectly aware that IE was going to be part of Windows95. It argues: '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. Indeed, the DOJ clearly knew that Windows 95 would include 'browsing' functionality before the consent decree negotiations began.'
Judge Jackson said he expected the next hearing to be at the end of next month and that until then any discovery actions could only take place with mutual consent.
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