Did Microsoft and HP collude on Java?

Newly unsealed documents in the Sun Microsystems Inc./Microsoft Corp. Java lawsuit offer evidence that Microsoft and Hewlett-Packard Co. entered into an agreement to shut out Sun's Java from the embedded systems market.

According to a brief filed by Sun on Nov. 3 of last year, Microsoft produced for Sun the "HP and Microsoft Memorandum of Understanding on Java Technology" in which Microsoft agreed to provide HP with technology for co-developing a Virtual Machine for the embedded systems market. The memorandum says the "foundation" of the agreement is a "base JVM [Java Virtual Machine] developed by Microsoft."

The memo itself was not unsealed in the latest rash of documents. A Sun spokeswoman says there are "documents indicating that Microsoft and HP are working closely together on Java technology," but had no further comment. Many of the documents in the case are sealed, and both sides have referred to sealed documents in their briefs.

Microsoft officials also declined to comment on specifics of the HP-Microsoft memo. Although Microsoft's VM would be compatible with Sun's Java Developers Kit 1.1, the agreement bars support for Sun's Java Native Interface, which dictates how Java interacts with all native code. Instead, the brief says HP agreed to use "Microsoft's native calling mechanism."

Microsoft, meanwhile, on Thursday filed its own brief explaining why it is appealing U.S. District Judge Ronald Whyte's preliminary injunction requiring Microsoft to support Sun's Java in Microsoft products. Microsoft attorney Karl Quackenbush of McDonald & Quackenbush, P.S., says he expects a hearing on the issue by mid-summer.

At the same time, Quackenbush says Microsoft is complying with the preliminary injunction, although it has asked for more time to fix some products. A hearing on that issue is scheduled for Friday morning. A week ago, Judge Whyte ordered Microsoft and Sun to begin settlement talks regarding how Java interacts with native code.

Quackenbush says Microsoft's failure to ask for a stay of Whyte's injunction or appeal immediately after the ruling says nothing about the merits of its case. "We are looking forward to our day in the circuit and respectfully disagree with Judge Whyte's decisions," he said. Sun, meanwhile, renewed its offer to help Microsoft come back into compliance with Sun's Java.

The new revelations regarding Microsoft and HP come at an interesting time. The pair have formed the Real-Time Java Working Group and are meeting with developers in San Diego this week, trying to persuade them to develop a specification for real-time extensions to Java through the National Committee for Information Technology Standards. Sun and IBM Corp. are also at the meeting, lobbying developers to work with Sun. The group was to vote Thursday night on whether to go with NCITS.

Microsoft licensed HP's embedded Java clone, called Chai, in March for use in Windows CE. HP General Manager Jim Bell says HP's VM does support Sun's Java Native Interface. "It's possible this memorandum refers to other discussions that have no bearing on what actually happened," Bell says. "Way back before we created Chai, we were thinking of licensing an embedded VM from Sun and other folks, and it's possible we talked to Microsoft. Bell says he doesn't believe Microsoft has an embedded VM. "They were interested in having one, they surveyed the possible suppliers and decided ours was best and purchased it from us. They're a customer of ours, not the other way around."

Sun was granted permission from the U.S. District Court to subpoena Aimtech Corp., Apple Computer Inc., Fujitsu Software Corp., Hewlett-Packard Co., Intel Corp., Interleaf Inc., Silverstream Software Inc. and Symantec Corp. for internal communications and negotiations with Microsoft over license agreements requiring them to use Microsoft Java.

Microsoft also produced 112 First Wave license agreements for Sun in which Microsoft tied access to Windows 98 and NT 5.0 betas to a requirement that licensees make Microsoft's Virtual Machine and Application Foundation Classes the default. HP, Intel, Symantec and Fujitsu entered into these agreements, although Microsoft has now redone its Java classes and calls them Windows Foundation Classes.

Silverstream, meanwhile, refused to enter into an exclusive agreement with Microsoft, saying it needed to be free to use the best technology for its customers and did not want to be "a distribution channel for Microsoft." Intel has invested in Silverstream.

Sun's brief also cites an agreement between Microsoft and Apple and a Java source code agreement that Microsoft struck with Intel. An internal Microsoft e-mail shows Microsoft trying to persuade Intel to stop working with Sun on Java multimedia class libraries and asks that "if Intel still feels that they must stay engaged with Sun, that they do it less visibly."