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Microsoft hopes to overturn Java ruling

The software giant gets a last chance to argue that it is free to design software incorporating Java in a way that makes it less compatible with products made by competitors.

    In a legal showdown with important consequences for the computer industry, Microsoft will have one last chance today to argue that it is free to design software incorporating the Java programming language in a way that makes it less compatible with products made by competitors.

    Already, a federal judge has ruled preliminarily that Microsoft products using Java infringe the copyrights of Sun Microsystems, which designed the technology. The preliminary injunction, issued last November by U.S. District Judge Ronald Whyte of San Jose, California, requires Microsoft to add a common interface known as Java native interface, or JNI, in order to legally ship the products. That preliminary injunction is under appeal.

    Last month, Whyte indicated in a tentative ruling that he was inclined to make the order permanent, but agreed to give Microsoft one last chance to convince him otherwise.

    Also at issue at the hearing will be a separate tentative order ruling that Microsoft is free to ship incompatible versions of Java as long as they are independently produced and do not contain code derived from Sun.

    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.

    Hanging in the balance of today's hearing is how much control Sun can exert over Microsoft to make its Java products compatible with competitors. Sun contends that JNI is necessary if Java is to run uniformly throughout the industry. Microsoft, on the other hand, says that JNI is an inferior technology that is not covered by the Java license it signed with Sun in 1995.

    "We believe that under this contract, Microsoft had the right to design all the interfaces between Java and other technologies," said Microsoft associate general counsel Tom Burt. "That's important to us because we want to provide the best product to our customers for using Java to write great Windows applications."

    Whyte's interpretation of the contract, Burt added, gives Sun undue influence over the technologies Microsoft must support.

    But the infringement issue also could have important consequences for the antitrust case the Justice Department and 19 states have brought against Microsoft, said Rich Gray, an attorney at Bergeson, Eliopoulos, Grady & Gray. Among other things, prosecutors in that case allege that Microsoft tried to undermine Java's cross-platform promise by "flooding the market" with an incompatible version.

    "A finding that Microsoft engaged in copyright infringement with regard to Java in the context of creating an incompatible version still has the potential to be used at a remedy phase of the DOJ trial," Gray said. "I would have expected Microsoft, if there was any way, to settle this lawsuit [with Sun]."

    The two sides will also square off over two other thorny issues. The first concerns whether versions of Java independently produced by Microsoft must also pass Sun's compatibility tests. Typically, so-called clean room versions are legal ways to get around copyright restrictions because they contain none of the original code.

    In a separate tentative ruling, Whyte said Microsoft was free to build cloned Java products as it saw fit. At today's hearing, Sun is expected to argue that Whyte's interpretation is wrong and that such versions are also subject to the contract.

    A third issue addresses new versions of the Java technology that Sun introduces periodically and whether Sun is responsible for making them compatible with earlier versions. Also at issue is how quickly Microsoft is required to incorporate the new technology into its products.