Microsoft, Sun Argue Java Licensing Case

Microsoft lawyers got their chance to appear in the US 9th Circuit Court of Appeals yesterday to dispute a November 1998 decision in the company's ongoing Java licensing legal battle with Sun Microsystems.

Microsoft lawyers got their chance to appear in the US 9th Circuit Court of Appeals yesterday to dispute a November 1998 decision in the company's ongoing Java licensing legal battle with Sun Microsystems.

The decision in question was a US District Court preliminary injunction that barred Microsoft from shipping Java-enabled products that didn't pass Sun's Java compatibility test suite.

In 20 minutes of oral arguments before a three-judge panel, Microsoft attorneys argued two points. First, that US District Judge Ronald Whyte erred in treating the dispute as a copyright infringement rather than as a breach of contract. They said because of that error, Sun had the benefit of not having to prove "irreparable harm" because such harm is simply presumed in copyright cases. In breach of contract cases, however, plaintiffs have the burden of proving such harm with hard evidence.

Second, Microsoft attorneys argued that even if the dispute truly is a matter of copyright infringement, Whyte still erred. They said Whyte analysed the technology in dispute to determine its "originality" but that the court fell short in determining that the material was both "original" and "protected," a necessary finding in copyright infringement cases.

"We're saying, 'Look at the [licensed Java technology] that we used and show us what is protectable,' " said Linda Norman, senior corporate attorney for Microsoft. She said copyrights "give the assumption of originality" but that not everything in a copyright is protected. "Scopes of copyrights are decided in litigation," she said.

During the 20-minute oral argument by Sun that followed, Sun's lead attorney Rusty Day said he believed the US District Court "bent over backward to be fair to Microsoft." He said the court went so far as to consider future harm to Microsoft and subsequently allowed Microsoft to continue distributing Java-enabled products subject to conditions.

Outside the courtroom, one Microsoft attorney said it isn't fair to paint Microsoft as a "pirate" in this case.

"If you take out a car with a full tank of gas and bring it back with only half a tank, it doesn't mean you stole the car," said Karl Quackenbush, a partner at Preston Gates & Ellis LLP in Seattle.

But Sun's counsel disagreed with that logic.

"If I make someone a Chevy dealer, and they take out all of the Chevy engines in their cars and replace them with Yugo engines, that's not fair because they're still selling the cars under the Chevy name," Day said. "On top of that, they're changing the cars so that they only run on Microsoft gas."

The three-judge panel is expected to rule on the appeal anywhere from one month to a year from now.

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