By Rachel Chalmers
An appeals court has overturned an injunction that barred Microsoft Corp from shipping any versions of the Java programming language that do not comply with Sun Microsystems Inc’s compatibility tests. In November 1998, US District Court Judge Ronald Whyte ordered the Redmond software company to change its products to comply with Sun’s tests (CI No 3,541). Microsoft was quick to appeal, and the appeals court has lifted the injunction. The court notes that the Technology License and Distribution Agreement (TLDA) at the center of the dispute was negotiated on a rushed basis way back in 1996 – hence the current bitter quibbling over its terms.
By 1997, both Microsoft and Sun had added what they believed were significant improvements to Java. Sun, however, was not happy with the changes Microsoft had made. In particular, Microsoft had added unauthorized keywords and compiler directives, had modified the compiler to support these unauthorized extensions and had failed to implement the Java Native Interface (JNI). Sun filed for copyright infringement, saying that the resulting Windows- specific version of Java exceeded the scope of Microsoft’s license and asking the judge to bar Microsoft from shipping any more of the incompatible product. Deciding that Sun was likely to prevail on the merits of its case, Judge Whyte granted the injunction.
The appeals court’s ruling is complex. It agrees with White that Sun is likely to prove that Microsoft has violated the license agreement. Even Microsoft seems disinclined to argue that point. Instead, Microsoft’s lawyers maintain that the issue is not one of copyright infringement but rather of breach of contract. The appeals court has tended to concur. We agree with Sun that significant evidence supports the district court’s holding that Sun is likely to prevail on its interpretation of the language of the agreement and to prove that Microsoft’s conduct violated it, the three-judge panel wrote in its decision. We agree with Microsoft, however, that the district court should not have invoked the presumption of irreparable harm applicable to copyright infringement claims.
Sun also claimed that Microsoft’s behavior amounts to unfair competition under California law. Judge Whyte entered a second injunction on that claim, but the appeals court has overturned that injunction as well. It says Judge Whyte ruled solely on the basis of past conduct. Microsoft correctly contends that under California law an injunction must be based on the prospect of future conduct, the panel of judges wrote. Speaking in a teleconference after the ruling was published, John Kannegard, interim president of Sun’s software products and platform division, said that the question now becomes whether Microsoft’s past behavior is likely to persist.
We feel that Microsoft’s actions speak for themselves in this regard, said Kannegard drily. In short, he said, the appeals court has merely asked Whyte for more information on why he ordered the injunctions: We don’t view this as changing the basics of the case at all. Will Microsoft promptly resume shipping incompatible versions of Java? Sun lawyer Rusty Day very much doubts it, given the dim view the appeals court took of Microsoft’s behavior. I would be very surprised if Microsoft would continue or persist in those actions, he said. I don’t think it boosts Microsoft’s ability to go forward in what it’s doing.
