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Microsoft asks for more Java leeway

The company asks a federal judge for the right to develop Java software, even though the same judge has already ruled that it probably violated its Java pact with Sun.

SAN JOSE, California--Microsoft today asked a federal judge for the right to develop Java software that doesn't use Sun technology, even though the same judge has already ruled that Microsoft probably violated terms of its Java license with Sun Microsystems.

Microsoft is seeking See related story:
Microsoft's holy war on Java clarification of an earlier ruling by Judge Ronald Whyte that told Microsoft its Java products must pass Sun's compatibility tests. In that ruling, White said Sun was likely to prevail on the merits of its case that Microsoft violated its Java licensing agreement and granted Sun's request for a preliminary injunction. Microsoft has appealed.

Judge Whyte, who did not rule on the request today, urged the two sides to settle their dispute out of court.

"It's really sad that these two companies cannot sit down and [negotiate] a way to resolve this in their own interests and in the public interest," Whyte implored.

Immediately after the hearing, the chief attorneys for the two sides met briefly with the court-appointed senior master who is handling much of the fact-finding in the case, but Microsoft's attorney Karl Quackenbush declined to say what they discussed.

In court today Microsoft said that it should be able to create Java software that does not specifically contain Sun code. Such a "clean room" version of Java would be developed independently by Microsoft based on published specifications and through other means. After the hearing, Microsoft senior attorney Linda Norman declined to say whether Microsoft has such a development underway.

"Java the programming language is not Sun's intellectual property," Microsoft attorney Quackenbush argued in court. "A programming language cannot be intellectual property." Much of the discussion centered on Microsoft's interested in developing its own Java compiler.

"When issuing the earlier orders, I did not have in my mind the independently developed Java compiler," Whyte said from the bench.

"What we are asking for is to create new tools, products that are not created with Sun's technology," Quackenbush said, arguing that Microsoft has a First Amendment right to do so. He argued that others are creating independent Java implementations, without Sun's objection, and Microsoft should be allowed to do the same.

Sun attorney Rusty Day addressed why Sun doesn't want Microsoft to ship its own Java compiler. "That will complete the effort to seize this technology from Sun," Day said. "They want to do that free from your [earlier] order, free from strictures."

Day argued that Microsoft's Java licensing agreement requires it to pass Sun's Java compatibility tests before it markets software that carries the Java brand.

"The price Microsoft paid for the deal was that Microsoft [Java] products were subject to compatibility, upgrade scheduling, testing, and branding," Day said. He also argued that Sun's published specification is copyrighted, and thus is Sun's intellectual property.

After the hearing, however, Microsoft attorney Norman said that while the Java spec may be copyrighted, the rules that it outlines cannot be copyrighted. Thus Microsoft would have the right create its own version of Java using those non-copyrighted rules.

Judge Whyte also heard arguments from media attorneys who argued that much of the evidence in the Java lawsuit should not be kept private, as it is now.