By Rachel Chalmers
Both sides were full of sound and fury when Judge Ronald Whyte of the US District Court Judge in San Jose heard arguments in the lawsuit between Microsoft Corp and Sun Microsystems Inc over Sun’s programming language Java. The judge, however, gave little indication of what his final decision in the case might be. Whyte heard arguments on three separate matters. The first is copyright infringement. On May 24 1999, the court tentatively ruled that several Microsoft products, including Windows 98, IE4 and VJ++.0, infringe Sun’s copyright in source code for the Java technology. Microsoft argued first that since the Technology Licensing and Development Agreement (TLDA) described failure to pass Sun’s compatibility tests as a breach, that wording implied the existence of a contract between the companies. Compatibility should therefore be regarded as a contractual obligation, not a question of copyright infringement. Second, Microsoft argued that the burden of proof was on Sun to show that there was original, protected work of Sun’s in Microsoft’s Java virtual machine. Sun has testified that some 320 of Microsoft’s files are virtually identical to Sun’s originals. But Quackenbush argues that there is no evidence that Microsoft object code – as opposed to its source code – is substantially similar to Sun’s protected expression, which is embodied in the source.
So copyrighted source code, when compiled, may not be copyright? asked Judge Whyte. Maybe, maybe not, depending on how much of the expression a compiler author let through, Microsoft attorney Karl Quackenbush replied. That’s kind of a scary result, said the judge. Next, Quackenbush asked whether Sun’s registration of its copyright was timely, as a precursor to Java was published on September 3rd 1992, more than five years before Sun’s registration of its copyright in Java. Finally, Quackenbush claimed that the court’s order does not deal with the relevant test suites. Microsoft claims that the conditions on the license depended on Sun’s delivering a compatible implementation. That didn’t happen, Quackenbush concluded. For his part, Sun attorney Rusty Day urged the court to look to the entirety of the TLDA, not to get hung up on any one portion. I’m Elvis Presley, he said. I record a song on 45rpm. It’s translated onto 33rpm, then onto CD, then onto MP3. Does Microsoft really want the court to believe I don’t have copyright in that song?
The second point of contention was over the wording of a section of the TLDA. Where the TLDA stipulates that: supplemental classes shall run on the most current implementation, both Sun and Microsoft have interpreted most current implementation as referring to their own virtual machines, and not to the other’s. Day said Microsoft’s concern was that Sun was shipping supplemental classes which did not run on Microsoft’s own virtual machine. Microsoft’s contention boils down to the assertion that it wanted and got a promise of no new classes that would require enhancements to its VM, Day argued. This is inconsistent with industry practice and with Microsoft’s own practice. Quackenbush replied: Sun had to do the work to make them run because it was in Sun’s interests to have them out there… Microsoft could not be forced to change its virtual machine. Your interpretation would really hamper any kind of development, Judge Whyte observed. Not at all, not at all, Quackenbush said.
The third and final point at issue was independent development. The court has tentatively ruled that Microsoft may develop and distribute independently developed tools provided such products do not infringe Sun’s copyright, patent or other intellectual property right. Day argued for Sun that any technology developed to Sun’s copyrighted specifications is itself copyright. The notion that any implementation that uses [Sun’s] spec is necessarily an infringing implementation, stuns us, Quackenbush said. Microsoft didn’t need permission to clone Java. There were no rulings from the bench. We have no idea (really, no idea at all) when the Court will issue final orders on these three or any other summary judgment motions that have been filed, said Sun spokesperson Lisa Poulsen, but when he does, we will get the news out to you with all due speed.
