Zardon

BALTIMORE (REUTERS) - A federal judge on Thursday compared Microsoft Corp.'s behavior toward Sun Microsystems Inc. to the 1994 knee-clubbing of Olympic skater Nancy Kerrigan.

In a third day of preliminary hearings into whether Microsoft's Windows operating system should resume carrying Sun's Java software, U.S. District Judge J. Frederick Motz did not hide his skepticism about Microsoft's behavior.

"Isn't there a social value in being able to participate fairly in a market, undistorted by your competitors?" Motz asked Microsoft's final witness.

University of Chicago economist Kevin Murphy had testified that Microsoft's past misdeeds did not justify a must-carry order on Java. Such an order would be "messed up," robbing Microsoft of some of its incentive to improve Windows.

Motz at that point compared Microsoft's acts against Java to the assault on Kerrigan by the ex-husband of rival skater Tonya Harding.

Microsoft, which had promoted an incompatible form of Java that worked best on Windows and had taken other steps to hinder Java, was like a baseball team that had stolen game signals from the other side, Motz said.

"In a way, what is being asked is not for me to engineer the market, but to un-engineer the market (that Microsoft has distorted)," Motz said.

During the three days of hearings in the private antitrust case, Motz has consistently voiced sympathy for leveling the playing field between Sun's Java and Microsoft's .Net Internet services software.

Santa Clara, California-based Sun claims that Microsoft views Sun's Java software as a threat because it can run on a variety of operating systems, not just on Microsoft's Windows.

Sun charges Microsoft has tried to sabotage Java by a series of actions, most recently dropping it from Windows XP, which was introduced last year.

Microsoft later reversed itself and said it would start including Java in a Windows XP update, but only until 2004.

In court on Wednesday, Motz had suggested Sun drop some demands and go directly to trial on whether to force Microsoft to carry Java.

He said Sun might want to drop its request for a preliminary injunction on carrying Java and set aside its claim for more than $1 billion in damages. Motz did not elaborate on why he made this suggestion.

Murphy on Thursday told Motz that tilting the market in Sun's favor with the must-carry Java provision would not solve the problem. "It was tilted one way once, tilting it the other way now does not compensate," said Murphy.

But Motz immediately interjected, saying that Sun's remedy might result in a leveled market rather than a tilted market.

Sun's antitrust lawsuit is one of several currently before Motz that have been filed in the wake of Microsoft's long-running antitrust fight with the government.

A settlement of the government suit was endorsed by U.S. District Judge Colleen Kollar-Kotelly last month, although Massachusetts and West Virginia are appealing.

Sun filed its antitrust lawsuit in March, after a federal appeals court upheld a lower court ruling in the government case that Microsoft had broken U.S. antitrust laws and illegally maintained its monopoly in PC operating systems.

Motz also is overseeing cases filed by AOL Time Warner unit Netscape Communications, Be Inc. and Burst.com , as well as cases filed by class-action attorneys who are suing on behalf of consumers. By Peter Kaplan