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Microsoft: Sun lawsuit tries to have it both ways

Microsoft contends it cannot be sued for both copyright and breach of contract in its legal battle over Java, and makes a last-ditch effort to avert a crippling ruling.

Microsoft today made a last-ditch effort to avert a crippling ruling in its legal duel with Sun Microsystems, arguing that a recent federal appeals court opinion calls into question key positions taken in the case over the Java programming language.

At issue is whether Sun's claims--that Microsoft illegally made incompatible versions of Java--are rooted in principles related to copyright or breach-of-contract law. Sun contends that Microsoft's conduct raises claims under both theories.

U.S. District Judge Ronald Whyte issued a tentative ruling last May saying that he was inclined to enter a permanent finding that Microsoft's Java products infringed Sun's copyrights. The San Jose, California judge, however, made no comment on the breach-of-contract claims.

Today's brief appears aimed at heading off a final ruling, expected at any time, that Java features in Microsoft's Windows operating system and Internet Explorer browser infringe Sun's copyrights. It argues that Sun's dual claims are incompatible.

"An action for breach of contract is inconsistent with a copyright infringement action," Microsoft attorneys argued. "Even if conduct can be both ... the plaintiff must elect whether to proceed under contract law or copyright law and it cannot have remedies under both."

The distinction is much more than a mere academic exercise. A finding of copyright infringement allows a judge wide latitude in issuing a permanent injunction against the offender. A finding that a contract has been breached, on the other hand, provides much more limited options. What's more, Microsoft's Java license specifically limits Sun's legal options in the event Microsoft is found to be in breach.

"Sun is trying to run around the clear language of the contract, and we seek to further address these issues with Judge Whyte," Microsoft spokesman Jim Cullinan wrote in an email sent to reporters.

A Sun spokeswoman declined to comment.

Sun sued Microsoft in October of 1997 for copyright and trademark infringement, alleging that the software giant was attempting to thwart Java's "write once, run anywhere" promise. Sun has billed Java as a language that would allow programs to run on any computer regardless of its operating system, a prospect that could greatly diminish the world's reliance on Microsoft products.

Sun alleges that Microsoft responded to the threat by "flooding the market" with a version of Java that is incompatible with other platforms.

So far Judge Whyte has largely sided with Sun on the core issues in the case. Last November, he issued a preliminary injunction saying Sun was likely to prove Microsoft had violated its Java license and requiring that only compatible versions be shipped while the case continued. Although a federal appeals court last month sent the decision back for further reconsideration, the injunction may nonetheless become permanent if Whyte follows through on his tentative ruling.

That prospect could put Microsoft at a severe disadvantage. For one thing, it could be fodder for antitrust prosecutors in Washington, who are alleging that Microsoft has engaged in a pattern of predatory acts designed to hold onto its dominance in the software industry. It would also restrict Microsoft's actions in designing software based on Java, a programming language that is gaining popularity in many circles.

Today's brief arguing that Whyte should settle the contract claims before deciding the copyright issues relies heavily on last month's decision by the U.S. Court of Appeals for the Ninth Circuit. That court held that the injunction failed to specify why Microsoft's incompatible version of Java amounted to a copyright violation rather than a breach of the Java license. It temporarily suspended the ruling until Whyte could explain.

"Before Sun can gain the benefits of copyright enforcement, it must definitely establish that the rights it claims were violated are copyright, not contractual, rights," the appeals court wrote.