Microsoft's right to independent Java unclear
Judge's written ruling suggests selling incompatible Java could violate license.
by James Niccolai
(IDG) -- A federal judge says he needs more facts to determine whether Microsoft can distribute independently developed Java products that don't use any technology from Java inventor Sun Microsystems.
It's possible Microsoft can sell independently developed Java products that Sun deems nonstandard because they are not compliant with its Java compatibility tests. But Microsoft might be violating its Java license from Sun by doing so.
The ruling was released Friday by the U.S. District Court in San Jose, California. Microsoft had asked the court to clarify a preliminary injunction issued November 17, which forces Microsoft to change key programs to make them compatible with Sun's Java technology.
Initial reports said the Judge Ronald Whyte approved Microsoft distribution of independently developed Java products, based on comments from Microsoft's counsel. But the judge's written order, released late Friday, says this is a possibility, not a certainty.
Microsoft asked the court to clarify whether the company can distribute Java products that don't use any technology from Sun, under the injunction's terms. Microsoft apparently wants to reserve the right to do this as part of a business strategy not yet disclosed.
Whyte's order says the preliminary injunction is not intended to prevent Microsoft from shipping products that don't contain Sun's copyrighted program code. But Whyte's order does not address whether this would be a violation of Sun's Java use license.
"The court recognizes that this order leaves unresolved the parties' dispute as to what rights, if any, Microsoft has to distribute independently developed, non-compliant Java technology under the (Java licensing agreement)," Whyte said in the order.
When the November injunction was prepared, neither Sun nor Microsoft had asked whether Microsoft could distribute independently developed Java products. To determine whether Microsoft can distribute such products would require further fact finding, Whyte wrote.
"Further, nothing in this order is intended to suggest whether any product Microsoft may develop and attempt to distribute will constitute an independently developed product," Whyte wrote.
A Microsoft brief submitted to the court last month states that Microsoft was far along in developing its own Java products in 1996, when it signed a technology licensing agreement with Sun.
In a statement issued Thursday, before Whyte's written order released, Microsoft said it was pleased with the ruling.
"We were seeking and received clarification that the preliminary injunction issued on November 17, 1998 does not prevent Microsoft from creating or distributing independently developed Java technology," Tom Burt, associate general counsel for Microsoft, said in the statement.
The company did not return a call seeking comment this afternoon.
Sun representatives, who did not comment until reading the written order, say they are pleased with the ruling.
"We're gratified that the Court has clarified that Microsoft is enjoined from infringing Sun's copyrights. This ruling is a good step forward for us," a Sun statement said.
The next hearing in the case is scheduled for March 12, when Whyte said he will address "additional relevant legal issues" and review motions for summary judgment filed by both sides, Sun said.
The ongoing dispute is over Sun's accusation that Microsoft violated its Java licensing agreement by marketing incompatible Java products. Sun claims Microsoft did so to "pollute" the Java platform, which Microsoft allegedly saw as a threat to Windows. Microsoft maintains that its license permits modifying Java to take advantage of Windows-specific features.
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