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Judge switches horses but reinstates MS Java ban

Backs off on copyright, goes for unfair conduct instead

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Both sides in the Java dispute between Sun and Microsoft claimed victory this week, but Judge Ronald Whyte issued two Orders that had the combined effect of reimposing at Sun's request his November 1998 Order of a preliminary injunction, albeit on different grounds, to prevent Microsoft from subverting Java. The judge changed his grounds following Microsoft's successful appeal that copyright grounds for the injunction were inappropriate. The great irony however is that last week Microsoft itself played the copyright card in its Washington trial defence (strongly criticised yesterday by the DoJ in its reply to Microsoft's defence), and called Sun's breach-of-copyright claim "a novel argument". Last August the Court of Appeals ruled that the case was a contract dispute and not a copyright infringement case, saying that the judge had not explained in his finding how the licence agreement violations would violate Sun's copyright. Judge Whyte's action yesterday was therefore to deny Sun's request for a reinstatement of the injunction on the grounds of a federal copyright breach, but to grant Sun's motion for a preliminary injunction under the California Business and Professional Code on the grounds that Microsoft's actions had been unfair. The new Order compels Microsoft to distribute only Java products that pass Sun's compatibility tests. In addition, Microsoft must warn developers that Microsoft's tool kit products will result in applications that will run only on Microsoft's implementations. In addition, Microsoft may not advertise falsely that its implementations comply with the Java spec, or are endorsed by Sun. Finally the judge ordered that "Microsoft's development tools products shall include at least as much support for Sun's JNI and Microsoft's RNI, e.g. help files, header files, etc". The contenders' teams made the customary remarks. Sun general counsel Michael Morris said that Microsoft had "harmed competition, as well as those who use and rely on Java technology". Microsoft spokesman Jim Cullinan commented that "Sun is trying to prevent and limit competition" and "to control Java", although it was hard to see how Microsoft's desire to control Windows differed. The practical consequences of the present position are that Microsoft has to follow the terms of its licence from Sun, and may not indulge in any deprecatory activities. In fact, Microsoft was able to claim that it wouldn't have to change anything, simply because it had decided to observe the terms of the previous injunction pending the outcome of Sun's motions for a new injunction. Microsoft has also denied that COOL is an attempt at competing with Java, presumably because it realises it would be unlikely to achieve the same momentum. Nonetheless, Microsoft has been cool, as it were, to updating Visual J++ to the latest version of Java, with the consequence that sales of the product have practically ceased. Microsoft has made the usual motion for dismissal of the case, and a decision can be expected at any time. Assuming that Microsoft does not succeed in its dismissal motion, a trial will probably take place later this year. Judge Whyte wrote in his Order that: "Sun has established a reasonable likelihood of success in demonstrating that Microsoft's distribution of non-compliant Java technology violates the compatibility provisions" of the Sun licence. He also wrote that: "Sun has demonstrated that Microsoft introduced strategic incompatibilities in its implementations of the Java technology and relied on its unparalleled market power and distribution channels in computer operating systems to unfairly impede competition in the Java development tools market." Another observation was that: "Microsoft's Java tools products did not compete on their merits alone, but also possessed the added, unfair advantage of offering the only way of creating hybrid Java/native applications that run on Microsoft's non-compliant virtual machine." In his Order, the judge said that "Sun has at least raised serious questions going to the merits and that the balance of hardships [as to whether a preliminary motion should be granted] tips sharply in favour" of Sun. It would be hard to envisage Microsoft winning after this judicial assessment of the situation. ®

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