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MS leaking Sun code three times entirely accidental – judge

At last! Somebody thinks the high command isn't sufficienty culpable

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MS on Trial The contractual aspects of the Sun-Microsoft Java squabble have resulted in another ruling by Judge Whyte, but neither side is cheering about it. In making his ruling that Sun is not entitled to $35 million in liquidated damages for Microsoft having "inadvertently" made Java source code available on its web site, the judge has set a date on which he intends to set a date for the main trial (no, really). At that hearing, expert witness names will have to be disclosed, and dates set for a cut-off for facts and expert discovery.

On 11 August there will also be a hearing on the remaining summary judgement motions that Microsoft has made, plus further argument about the issue just considered by the court. As was seen in the Caldera trial, a favoured Microsoft legal strategy is to introduce very long-winded, multiple motions for dismissal, in an attempt to reduce the charges as much as possible.

In the latest Order Judge Whyte decided he did not have enough evidence that, although Microsoft had three times made Java source code available to the public, this had been done by "an officer, director or general manager" of Microsoft. This was "entirely inadvertent" Microsoft said in its argument, and did not involve any Microsoft bigwigs, so there was no breach of the Technology Licence and Distribution Agreement.

Well, said Sun, Microsoft was already on notice after the first breach, so that the argument that an underling was responsible is a bit much. Hang on, said the judge, there's no evidence from Sun that Microsoft had "a sufficiently culpable state of mind" or that there was a "genuine issue of material fact" - although Sun complained that Microsoft had prevented necessary discovery about this. The result is that Sun will have an opportunity to produce another short brief on this, and Microsoft to respond to it, and that meanwhile Microsoft has "tentatively" been granted its partial summary judgement motion.

The skirmishes going on do not bear much on the merits of the main case that Sun has brought against Microsoft, but it does tell us that Sun's licence for Java was not very watertight legally. It is unlikely that a trial will start before next year, and from the complexity, it could well take a couple of months or more. ®

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