Sun, Microsoft spar over Java in hearing

June 24, 1999 — Lawyers for Microsoft Corp. and Sun Microsystems Inc. haggled over whether Microsoft’s use of Java in its products were “protected expression” in a hearing in Sun’s lawsuit alleging that Microsoft violated a licensing agreement over the programming language.

US District Court Judge Ronald Whyte had issued tentative, nonbinding rulings in May indicating that he was leaning toward deciding that Microsoft infringed on Sun’s copyrights for source code and exceeded its license with Sun by distributing Windows 98, Internet Explorer 4.0, and Visual Java (VJ) ++ 6.0 developer’s tool even though it failed to pass Sun’s Java compatibility test suite.

In another tentative ruling in May, Whyte indicated he was considering deciding that Microsoft had the right to distribute “independently developed” software that doesn’t comply with Sun’s Java compatibility requirements as long as they don’t violate Sun’s copyright for intellectual property.

In a hearing today, Whyte said he will study the arguments both sides presented and other aspects of the lawsuit, but did not indicate when he might make a ruling or set another court date.

Microsoft lawyer Karl Quackenbush argued that Microsoft’s use of Java on its own terms amounted to “protected expression.” Companies could not develop software without some latitude in applying source code such as Java to their products, he said.

Sun’s interpretation of the license left no room for Microsoft to develop its products, according to Quackenbush. “It (Sun) interprets copyright too broadly,” he said.

However, Sun lawyer Lloyd Day argued that the Java license Microsoft agreed to did not allow for protected expression, and instead required strict copyright rules.

Java must be compatible with Sun’s standards so companies can compete on a level playing field, he said. “Sun allows competitors to compete with each other on more than price alone,” Day said.

Day also told the judge that it would be a mistake to allow Microsoft to distribute “independently developed” Java-related products. Doing so would allow Microsoft to disregard Sun’s copyright authority.

“Microsoft will copy it (Java) and say ‘Let them sue us,'” Day said.

Quackenbush defended Microsoft’s right to distribute Java software that was developed independently. “What’s the scope of Sun’s intellectual property?” he asked the judge. “That’s something you have to determine.”

The lawyers also debated the issue of Microsoft’s distribution of Sun’s Supplemental Java Classes. In May, the judge denied Sun’s motion to compel Microsoft to make upgrades of its products compatible with the Supplemental Java Classes as the classes were delivered by Sun. Sun had argued that the supplemental classes should be able to run on Microsoft’s most current applications.

“Sun should have to do the work to make them (the applications) run,” said Microsoft’s Quackenbush.

However, Day said developers want to write applications that work with the most current supplemental classes.

The judge granted Sun a preliminary injunction last November, ordering Microsoft to make changes to several products to include a version of Java that would pass Sun’s compatibility test suite. That order is under appeal and a decision is pending. The tentative rulings debated today do not affect the preliminary injunction.

Both sides have filed other motions for summary judgment beyond the motions that the judge heard arguments on today. Those remaining motions are pending.

In an interview with InfoWorld at the JavaOne conference in San Francisco last week, a top Sun executive said he was confident the judge would rule in Sun’s favor on the copyright and independently developed Java issues, particularly because of developers’ dependence on Java specifications when building implementations.

If the judge were to rule against Sun, “that’s not a disaster for us, for the following reason — it is very difficult, close to if not, in fact, impossible, to build an implementation of the Java platform without at least looking at the documentation or its specifications,” said Alan Baratz, president of software products and platforms at Sun.

“Well, that’s Sun intellectual property. And the judge has been very clear about that, that if Microsoft uses the specs or uses the documentation, it is not an independent work,” Baratz continued. “Or if Microsoft purchases something from a third party that had used the documentation or the specs, it’s not an independent work.”