U.S. District Ronald Whyte called today's hearing to give Microsoft one last chance to convince him Sun was not likely to prevail in the contentious case. Whyte took the infringement matter into consideration and gave no indication when he would issue a final decision on this issue as well as two others debated today in court.
Last month, Whyte had indicated in a tentative ruling that he was inclined to make the injunction permanent.
Reiterating familiar themes, Sun said Microsoft engaged in "massive, verbatim, literal copying" of more than 100,000 lines of Java code. At the same time, Microsoft's Java products failed compatibility tests mandated by the license, according to Lloyd "Rusty" Day, an attorney representing Sun.
But Karl Quackenbush, an attorney for Microsoft, told the court that Sun had not met its burden in proving the code had been infringed. Specifically, he said, "substantial factual issues" existed about whether the copying was verbatim and whether the Java code was eligible for copyright protection.
Sun sued Microsoft for copyright and trademark infringement in October of 1997, alleging the software giant was attempting to sabotage Java's "write once, run anywhere" promise. Seven months later, Sun amended its complaint to include allegations that Microsoft's Java strategy constituted unfair competition. Whyte's preliminary injunction last November held that Sun was likely to prevail at trial on both its copyright infringement and unfair competition claims.
Whyte also ordered Microsoft to modify its Java products so that they complied with compatibility tests.
Despite Whyte's leanings, Quackenbush said it would be improper to decide the issue prior to trial because of unresolved legal and factual issues. Whyte appeared skeptical of those arguments.
For example, Quackenbush argued there was no guarantee that object code--that is, programming that has passed through a compiler--was automatically subject to copyright protection simply because the originating source code was protectable.
"That's kind of a scary result," Whyte replied.
The three-hour hearing touched on two other issues, particularly whether Microsoft is free to independently develop technologies similar to Java that do not pass compatibility tests. As long as a Java-like product is not derived from Sun code, Quackenbush said, existing law allows anyone to freely build and market it.
Microsoft "is in the same position as any other developer," Quackenbush argued.
In a separate tentative ruling, Whyte agreed with Quackenbush and invited Sun to offer counterarguments.
Day told the court that even independent works would have to pass Sun's compatibility tests, since the product would be based on specifications published by Sun.
A third issue debated today concerned who was responsible for making sure new Java technologies are compatible with current Microsoft implementations.
Whyte has tentatively sided with Microsoft of the issue, saying it is Sun's responsibility to make sure "supplemental Java classes" run on the current version of Microsoft's virtual machine.