DOJ Goslinggreenspun.com : LUSENET : MS-DOJ : One Thread
Before I get into what DOJ and Microsoft have established through Gosling's testimony, I want to briefly discuss what Judge Jackson appears to have understood of the testimony. Mr. Burt (attorney for Microsoft) began his cross-examination by asking Gosling to explain the basic Java concepts in laymen's terms - which Gosling did. However, after this initial stage, Burt began to use a number of product names, trade terms and abbreviations (e.g., JNI, VM (Virtual Machine), HotJava, Java Beans, Javagator, compiler, etc.) in his questioning and likewise Gosling used these terms in his answers. Judge Jackson appears to have been lost during most of this testimony. On redirect, Mr. Boies (DOJ's attorney) asked Gosling to explain the cross-platform features of Java and the reasons that this was important in the marketplace. This time, Boies and Gosling went through the explanation in simpler terms using the illustration of buying software off the shelf. Judge Jackson interjected with questions which suggest that he understood their points. Judge Jackson then stated that he understood the gist of Mr. Burt's argument to be that Microsoft was just faster at implementing improvements to Java and that Sun was upset that it was getting beat in competition. At this point Gosling reiterated a point that he frequently made during Mr. Burt's cross-examination: Sun was not upset that Microsoft was making improvements in its version of the Java VM. Sun was upset because some of the changes that Microsoft made created incompatibilities with other platforms - destroying the goal of cross-platform interoperability. Gosling also explained that part of the reason that Microsoft could implement its improvements so quickly is that MS was acted unilaterally, whereas Sun was trying to implement changes to Java through a community-standards process. Gosling acknowledged that the latter process was slower, but argued that in the long term the latter approach reached a better outcome. When I discuss the points covered in Gosling's testimony (particularly what was discussed in cross-examination), keep in mind that Judge Jackson might not have understand all of the points - or their significance.
WHAT DOJ ESTABLISHED
1. Unlawful preservation of a monopoly (i.e., defensive monopolization under Sherman Act '2)
The bulk of Gosling's direct testimony mirrors the discussion that we had in class about Java and its potential for opening the PC OS market to competition. Gosling first described the barriers to porting software to different platforms and how this led developers to write apps for the OS with the largest market share. He described how this problem effected Sun; Sun had trouble convincing developers to port Window's apps to Solaris. Gosling then claimed that this problem has reinforced the dominance of Windows in the market for operating systems on Intel x-86 hardware. Gosling described Java, emphasizing its cross-platform goals. Gosling showed that cross-platform software would threaten Microsoft's dominant position in the PC OS market. Finally, Gosling described a number of actions by Microsoft that threatened the cross-platform features of Java ( 58-62). Among other things, Microsoft added keywords to Java and added compiler directives which allowed its Java Virtual Machine to call Window's APIs. As a result of Microsoft's actions, (1) programs written to MS's implementation of Java are tied to Windows, (2) programs written for MS's Java Virtual Machine would not run on other VMs, and (3) programs written on other Java implementations will sometimes fail to run on MS's VM. A point that Gosling repeatedly emphasized on cross-examination and direct was that Microsoft had greater marketing power than other distributors of Java technology. Microsoft flooded the market with its version of the VM by including it in Windows 98. Gosling argued that it was impractical for developers to include copies of the VM with their apps for two reasons: (1) the VM and accompanying files are about 3-8 MBs, which take a long-time for some users to download and (2) The VMs are written to a specific OS; therefore, the developer would have to either include copies of VMs for each OS, or package his product for only one operating system - destroying Gosling's cross-platform goal. In the model that Gosling envisions, the end users would have a copy of the VM on their machine before they downloaded the apps, and the apps would run identically on each VM. Because apps are running differently on Microsoft's VM, it threatens the cross-platform goal. On re-direct Gosling claimed that if Netscape could no longer ship Java VMs (i.e., if MS had put Netscape out of business) it would cut off an important source of Java's distribution. Mr. Boies also used redirect to ask Gosling to offer his interpretation of internal Microsoft documents that described the effort to introduce polluted Java. On re-direct Gosling also discussed Microsoft's decision to package RMI (one of Sun's Java technologies) separately from Microsoft's STK. The separate packaging of RMI is one of the factors that Gosling mentioned earlier which threatened Java's cross-platform features. Gosling noted that packaging RMI separately raised Microsoft's costs. Mr. Boies called attention to this part of Gosling's answer and asked whether there was any advantage to Microsoft in doing this. Gosling couldn't identify any technical reason for doing so. (Dec. 10. PM p.11) DOJ might use this segment of Gosling testimony to establish that Microsoft's conduct lacked a compelling business justification. See Aspen (using lack of compelling business justification as one of three factors to decide whether a monopolist's conduct constituted unlawful exercise of monopoly power). On re-redirect Gosling claimed that Microsoft's actions by destroying the cross-platform features, hurt consumers by locking-them into Microsoft's VM. See Aspen (using effect on consumers as one of three factors in evaluating whether monopoly's conduct constituted unlawful exercise of monopoly power).
2. Gosling's testimony strengthens a predatory pricing claim against Microsoft.
Gosling testified that Sun at one time made a web browser called HotJava. Sun decided not to pursue further development of this project because it concluded that it made no business sense when Microsoft was distributing a browser for free (Direct, 37).
Under the Brooke Group test for predatory pricing, I believe that evidence that a potential competitor was deterred from entering the market strengthens an argument that Microsoft had a reasonable prospect (if arguing under Sherman Act '1) or dangerous probability (if arguing an attempted monopolization claim) of recoupment.
Microsoft's attorney disputed Gosling's explanation for HotJava's demise. Mr. Burt attempted to show that Sun ended development of HotJava as part of an agreement with Netscape to refrain from entering the browser market.
On redirect, Gosling also claimed that Netscape was having difficulty keeping up in its Java development because Microsoft's browser pricing strategy was adversely effecting Netscape's earnings - limiting the amount of resources that Netscape had for engineering efforts. Combined with Barksdale's testimony, Gosling's testimony shows that Microsoft's pricing strategy hurt Netscape's ability to compete in the browser market (suggesting that Microsoft was coming close to recoupment).
3. Gosling offered expert testimony supporting DOJ's tying claims.
Gosling argued that browsers and operating systems are separate products, and that there was no technical reason for making the browser and JVM non-removable from an operating system. (Direct, 37). Gosling testified that standard programming practice would be to specify a standard interface, so that any browser could fit. The approach that Gosling advocates is the same as the approach the Supreme Court used in analyzing quality defenses in earlier tying cases. See International Salt Machine; IBM . However, Gosling later admitted that it made sense to include the Java VM as part of the operating system. (Dec 13 PM p.71) (responding to question from Judge Jackson). If DOJ uses its tying claim as part of a larger monopolization claim (as opposed to a Sherman '1 vertical restraint claim), then Gosling's testimony could help establish that there was no legitimate business justification for Microsoft to tie the browser and OS in Windows 98. See Aspen (using lack of legitimate business justification as one of three factors used in evaluating whether monopolist's conduct was illegal exercise of monopoly power).
WHAT MS TRIED TO ESTABLISH
1. Mr. Burt asked Gosling about benefits that Java offered other than cross-platform features.
Gosling described all Java's other benefits - security, reliability, and garbage collection (Dec 2 PM p.24) Microsoft might later use this section of the testimony to support an argument that it had a legitimate business justification for offering Java products - even if those products could only develop to the Windows platform.
2. Mr. Burt tried to show that Sun competes with Microsoft's Windows and NT products.
Mr. Burt showed that Sun was interested in making operating systems and that Sun wanted to use Java to compete against Microsoft and Intel. Gosling's testimony on cross, supported these claims. Gosling used this opportunity to reiterate his point that by encouraging cross-platform applications, Java opened up competition in the OS market. This line of questioning struck me as an odd strategy for Microsoft. Mr. Burt clearly wanted to show that Sun was a competitor to Microsoft. But in doing so, he helps strengthen the government's claim that Java opens up potential competition in the OS market - a fact that the government must prove to show that Microsoft's conduct against Java excluded competition. What Microsoft appeared to be doing is laying a foundation for a claim that Microsoft does not have monopoly power because Sun competes with it and there is all sorts of innovation. However, Gosling repeatedly argued that cross-platform application development (through Java) was the mechanism through which Sun hoped to compete. So in the end, Mr. Burt's questions on this subject help strengthen the government's claim that the OS market is not currently competitive and Java opens up potential competition.
2. Sun and Microsoft were in a competition for the hearts and minds of developers.
Most of Mr. Burt's cross-examination dealt with the competition between and Sun and Microsoft for ISV support. Again, the presence of this competition supports DOJ's story, so it seems odd that Mr. Burt focused on this. It appears that Mr. Burt was using this line of questioning as an excuse to introduce magazine articles into evidence that discussed the merits of Microsoft's and Sun's Java products. For the most part, Mr. Burt tried to use these articles not to support a claim that Microsoft made better products, but to support an argument that the information available to the developer community suggested that Microsoft was making better products. However, Mr. Burt also mixed in documentary evidence (e-mails) from Sun in attempt to show that Java had problems. One of Gosling's reoccurring themes was that Java is a work in progress, and that most of the problems Mr. Burt discussed were fixed in JDK 1.2 which was recently released. At which point, Mr. Burt would point out that the installed base used older versions of Java. Some of the problems with Java that Mr. Burt discussed were: (1) Write once, run anywhere doesn't work in practice. (2) Lack of backwards and forwards compatibility between different releases of the JDK. (3) Java is slow, and MS's JVM is much faster than any other VM.
3. Sun engages in the same practices that the government alleges is anticompetitive behavior by Microsoft.
Mr. Burt tried to get Gosling to admit that the real reason that Sun abandoned its browser project was that Sun made an agreement with Netscape not to compete in the browser market. Mr. Burt could not establish this point because Gosling is a techie and was therefore not involved in business negotiations with outside parties. Mr. Burt tried to introduce depositions from other Sun executives that were taken as part of the Sun v. Microsoft trial, but Mr. Boies was successful in keeping most of this out of evidence. Clearly, Mr. Burt was trying to show that meetings between software companies was a common industry practice. (Recall DOJ is accusing Microsoft of attempting to divide the browser market with Netscape.) I think that this line of questioning was a dead end. Even if Microsoft could show that other companies horizontally divided markets, it would not justify its own attempt to do so. (Horizontal agreements to divide markets are usually per se illegal.)
4. Mr. Burt attempted unsuccessfully to justify the incompatibilities that Microsoft created in Java.
In part of his questioning, Mr. Burt tried to show that other software companies were guilty of the same practices that Sun accused Microsoft of engaging in, and that Sun was singling-out Microsoft for criticism. Perhaps, Mr. Burt fails to appreciate that conduct that is lawful when done by competitors can be unlawful when done by a monopolist. In any event, Gosling distinguished Microsoft's conduct from that of other licensees. For instance, Mr. Burt argued that Netscape also failed to adopt Sun's JNI standards. Gosling noted that Netscape was making a good faith effort to implement the new standard but was facing financial difficulties (brought on by Microsoft's browser pricing policies) that was limiting their engineering resources. Mr. Burt noted that although Sun accused Microsoft of adding words to the language, JDK 1.2 adds words not contained in JDK 1.1 (i.e., Sun adds words to the language). Gosling distinguished between the process of adding new words through a collective-standards-setting process and Microsoft's unilateral decisions - in which Microsoft was trying to use its marketing power to force the changes on the community. Gosling also noted that the Java community would face huge engineering costs if they tried to redesign their products to adopt standards that Microsoft unilaterally decided upon.
5. At the end of his questioning, Mr. Burt tried to show that Sun still had channels to distribute its versions of the Java technology despite Microsoft's actions.
The most important response that Gosling offered during this questioning was that because of Microsoft's marketing power, Microsoft could distribute far more copies of its version of Java than Sun could. If Microsoft flooded the market with Java that did have cross-platform support, then there was a danger that developers would write to MS's version and Java would lose its cross-platform features.
-- Anonymous, January 13, 1999