Microsoft appeals injunction

Among the errors, Microsoft argued yesterday, were misinterpretations of a disputed contract with Sun Microsystems over the Java programming language and a judge's finding that the case principally concerned copyrights rather than contracts.

Whyte issued the preliminary injunction in November, finding that Sun stood a strong likelihood of prevailing on copyright and unfair competition claims filed against Microsoft. The suit, filed in October 1997, accused Microsoft of "sabotaging" Java by adding Windows-dependent extensions, in violation of Microsoft's license.

In his November 18, 1998, order, Whyte said it was likely Sun would prevail in showing that Microsoft's omission of a technology known as JNI, or Java native interface, kept Microsoft's Java from passing compatibility tests required in the license. The San Jose judge gave Microsoft 90 days to add JNI to its Java offerings and to make other modifications to software it designs for Java programmers.

"The district court's injunction grievously harms Microsoft, its customers, and the public by restraining competition and depriving the industry of Microsoft's technology innovations," Microsoft's appeal argued.

It went on to detail a number of legal errors Whyte allegedly made in arriving at his conclusion, including misinterpreting Microsoft's Java license and applying standards based on copyright law instead of the more stringent breach-of-contract claims.

But Sun spokeswoman Lisa Poulson disagreed, saying in an email message to reporters that Whyte "properly addressed the issues in granting the injunction." Poulson added that developers "would be best served if Microsoft would come back into compliance with the Java specifications."

Microsoft's Java strategy is also a key element in the antitrust trial now pending in Washington. The Justice Department (DOJ) and 19 states allege that Microsoft viewed the technology as a threat to its Windows monopoly because Java would allow software to run on multiple platforms without needing to be modified. Currently, many software developers write programs that run on Windows only, because it is not worth the expense of writing for less popular platforms. Microsoft denies the claim.

Among the errors Whyte made, Microsoft's lengthy brief argues, is the application of the wrong standard for issuing a preliminary injunction.

"The district court should have employed the breach-of-contract preliminary injunction standard, which requires Sun to prove harm and also gives full consideration to harm to Microsoft," the brief argues. "Because the district court presumed Sun's harm and discounted any harm to Microsoft, it failed to make the necessary findings to support the grant of a preliminary injunction in a breach of contract case."

Microsoft lawyers also take issue with Whyte's interpretation of the contract, saying that the judge incorrectly identifies JNI as a technology covered by the license.

"The district court found that Microsoft is obligated to pass tests relating to JNI, even though JNI is not mentioned or referred to in [the contract] and is not necessary to the functionality of a Java virtual machine," Microsoft's brief argues. "In so ruling, the court ignored the fundamental premise of the [license], e.g., that it is an agreement about Java, not native languages."

A Java virtual machine runs on top of a computer's operating system to allow Java programs to interact with the native code. JNI allows Java to use a computer's native code for certain tasks that cannot be carried out by Java-based programs. Sun and Microsoft disagree about whether JNI is covered in the contract.

Microsoft also argues that the license prevents either side from receiving the kinds of injunctive relief Whyte awarded in his ruling.

In order to prevail in its appeal, Microsoft must show that Whyte either abused his discretion in issuing the order or applied an incorrect legal standard.

In an interview, Microsoft attorney Karl Quackenbush said that at issue in the dispute is whether Microsoft will be allowed to innovate.

"We think this contract pretty clearly lets us innovate in our tools and the court's interpretation prevents us from offering enhancements, and that's a pretty important principle for us," said Quackenbush, a lawyer at Preston Gates & Ellis, a Seattle firm representing Microsoft. "It's a robust contract between two sophisticated companies, and a deal is a deal."

The preliminary injunction, which is in place only until there is a final outcome in the case, contradicted a key Microsoft defense in its antitrust case--essentially that its actions are allowed by the plain language of the license. Although Whyte's ruling alone is not enough for antitrust prosecutors to prevail on their Java claims, a ruling holding that Microsoft was within its contractual rights to add proprietary extensions to Java could have proved fatal to the government's claims.

In late December, Microsoft asked for a three-month extension to comply with Whyte's ruling. A hearing on the request is scheduled for tomorrow. Sun's case against Microsoft is expected to go to trial later this year.