November 18, 1998 6:20 AM PST
Sun wins injunction against Microsoft
Sun summarized the judge's ruling by saying: "The court ordered that if Microsoft ships products that include the Java technology, it must change those products within 90 days to address their failure to pass Sun's compatibility test suite."
In a stern 31-page ruling issued late yesterday, Judge Ronald Whyte enjoined Microsoft from "advertising any product that contains, implements, or emulates the Java technology as the 'official' Java reference implementation."
The software giant must notify customers of the order within 15 days, Whyte ruled, but Microsoft may seek an extension of the 90-day period "upon a showing of good cause."
"Such notice shall expressly indicate that the court has preliminarily found that Microsoft has violated its licensing agreement to Sun's Java technology and that if a final judgment is entered consistent with the court's preliminary findings, Microsoft's keywords and compiler directives not contained in Sun's Java Language specification ? may be prohibited from being included in any future Microsoft software development tool for Java," the ruling stated.
It added: "The court's disposition of Sun's motion for preliminary injunctive relief based on copyright infringement achieves much of the relief sought by Sun."
Microsoft today issued a statement indicating that it will comply with the ruling, and that no products will need to be recalled, nor will there be any impact to customers currently using Microsoft products.
Judge Whyte also cited cases of unfair business practices by Microsoft. One related to the Windows 95/NT logo licensing program. The other concerned Microsoft's designation of its virtual machine as the "Official Reference Implementation of Java on Windows 32-bit platforms." He called the latter "misleading."
The judge ordered Sun to post a $15 million bond in the event that the final ruling is not in its favor. Separately, Sun said it will seek monetary damages from Microsoft if the Java case moves to trial.
Developers initially cheered the ruling. (See related story)
The ruling is a blow to Microsoft in its long-standing legal battle with Sun over Java technology. Some experts have said the outcome of this lawsuit could sway the government's ongoing antitrust trial against the software giant. As reported, Microsoft launched an aggressive, multipronged strategy to compete against Java.
"It's an unqualified victory for Sun," said Rich Gray, a partner at Bergeson, Eliopoulos, Grady & Gray in San Jose, California. Mr. Gray is not retained by either side.
"In addition to finding copyright infringement, the judge found instances of unfair competition by Microsoft with regard to Java," he noted.
As for the Justice Department's (DOJ's) case against Microsoft, Gray added: "This decision gives complete credence to the government's theory that Microsoft has engaged in anticompetitive activities to undercut Java, the most important cross-platform technology."
"We may have gone beyond our [contractual] rights, but that does not create an antitrust violation?" asked Tom Burt, a Microsoft staff attorney.
In a statement, Microsoft said, "We are disappointed in the court's ruling and are assessing our legal options while we comply with the court's order. We are disappointed in Sun's shortsighted legal strategy, which is limiting choice for customers and developers. We are confident we will prevail when we head to trial."
Microsoft said it will consider appealing the ruling. The Redmond, Washington, software giant is expected to decide on a course of action later this week.
The ruling is not expected to have a material effect on Microsoft's financial performance, Paul Maritz, a group vice president at the software giant, said in a briefing.
As reported, Judge Whyte's ruling in the case has been expected for more than a week.
Sun sued Microsoft in October 1997 for breach of contract, alleging that Microsoft's Java implementation failed to pass compatibility tests required in its licensing agreement. In May 1998, Sun filed companion motions seeking a preliminary injunction based on allegations of copyright infringement and unfair competition, Microsoft said in a recent regulatory filing.
As Microsoft put it: "Sun requested an order enjoining Microsoft from distributing any Java-based technology in any operating system, browser, or developers tools, including Windows 98, Internet Explorer 4.0 software, and the Visual J++(TM) 6.0 development system for the Java language, unless and until Microsoft includes with each such product an implementation of the Java run-time environment that passes Sun's compatibility test suite or an operable implementation of Sun's current Java run-time environment."
"This is an opportunity for Microsoft to rejoin the Java community," said Alan Baratz, president of Java Software at Sun. "We would be more than happy to work with Microsoft to help them comply with this order."
Baratz called the ruling "a win for Java licensees, developers and consumers."
Microsoft's Maritz would not rule out the options of dropping Java altogether from Microsoft's offerings or creating its own Java implementation based on the published specification, rather than Sun's code. Hewlett-Packard has taken that course with its own Java Virtual Machine for small devices.
Maritz said that his reading of the ruling suggests Microsoft will not need to recall any products already sent to distributors and could comply with the judge's order for software already in use by posting an update on the Internet.
Baratz implied that Sun will make Java available for Windows users if Microsoft decides to drop Java. He said Sun has created Windows 98 and Windows NT implementations of version 1.2 of the Java specification, due for release next month, and next month will announce plans to distribute it to Windows users.
"We do think there is an opportunity for Sun to be more flexible in its licensing model while still preserving compatibility and testing requirements and cross-platform capabilities," he said, promising changes in the "very near future."