May 26, 1999 2:55 PM PDT
Rulings may have Sun on the run
That interpretation, says an independent attorney who has followed the copyright case, doesn't really give Microsoft anything out of the blue. Microsoft has had that right since U.S. District Judge Ronald Whyte's preliminary injunction in the case in November. Nonetheless, by confirming that earlier decision, yesterday's tentative rulings may presage how the dispute will resolve itself and how Microsoft will get around Sun's legal rights in the future.
"Microsoft could certainly do a 'clean-room' version of Java and call it something else," said Rich Gray of the law firm Bergeson, Eliopoulos, Grady & Gray, referring to technology developed independently under lab supervision. "Would they be free to market their own home-grown version of a Java-type technology? The answer is yes."
Rick Ross, president of Java advocacy group JavaLobby, agreed that Microsoft benefits strongly from Whyte's words on a clean-room version of Java. "Judge Whyte's ruling provides a foundation for Microsoft's (or anyone else's) clean-room implementations to withstand attacks from Sun," he wrote.
Microsoft spokesman Jim Cullinan said the company believes that the tentative rulings give it the right to create its own version of Java but said it was premature to discuss whether Microsoft could use the Java name for its own offering. He also declined to say whether Microsoft is developing its own version of Java, but it is widely believed in the industry that a company with Microsoft's resources would do so.
Java has been a difficult legal, political, and technological challenge for Sun. The company faces a continuing balancing act, trying to encourage companies to adopt it and therefore enable its "write once, run anywhere" potential, but at the same time trying to keep control over the technology so it doesn't "fragment" into incompatible versions that undermine that universality.
A Sun spokeswoman declined to comment on such questions, calling them speculative and based on early rulings the judge might change.
Java got its start as just another programming language and as a way to add fancy features to Web pages. But in the years since, it has become the focus of intense industry interest in two very different new areas: high-powered servers and small gadgets such as cell phones or TV set-top boxes.
Ross said he believes that Java underwent a "recession" for several months, "almost inevitable after the initial almost extreme over-hyping of Java." Now, though, there has been a "correction."
"I believe Java has weathered that storm. Java is on a sharp upswing now," Ross said.
On the server side, companies such as Compaq Computer and IBM are vying with Sun to boast the fastest Java benchmark scores. On the embedded side, for such products as palm-sized computers, companies are wrangling over new Java extensions such as those that would let Java run in devices that must respond to commands immediately--for example, a factory robot with a stop button.
One factor in the clean-room debate is that Sun explicitly sanctioned such efforts with the newest version of its Java technology, Java 2, which the company introduced in December. Sun requires clean-room versions to pass Sun's compatibility tests before the product may be branded with Sun's Java logo.
In his November ruling, Whyte issued a preliminary injunction ordering Microsoft to make its products, including Windows 95, Java programming tools, and the Internet Explorer 4.0 Web browser, pass Sun's compatibility tests in order to use the Java name.
Licensing a Java clone
If Microsoft chose to use a Java clone, it wouldn't have to create its own, because several already exist that Microsoft could license. In fact, it already has licensed Hewlett Packard's own version of Java, called Chai, though Chai is aimed at small devices instead of general-purpose computers.
Microsoft has also been working on its own clean-room version of Java, sources have said.
Yesterday, Whyte issued three tentative rulings, which do not have the force of law but are designed to indicate to lawyers what points they should address in oral arguments in June. In the tentative decisions, Whyte indicated that Microsoft must make its version of Java pass Sun's compatibility tests if Microsoft uses the Java name and logo.
But another tentative ruling reaffirmed Microsoft's ability to create its own version of Java from the published specification, as long as no Sun code was used. However, Microsoft might be constrained from calling it Java.
Overall, the rulings favor Microsoft, Ross said. "Honestly, I must conclude that Microsoft has Sun on the run now. The only legal defense Sun really has left is the brand Java--and that may well be at risk, too. Can you really imagine Pascal or C++ being controlled brand names?"
HP applauds ruling
The ruling on Java wasn't surprising to HP. Sun, which has vigorously defended Java over the years, hasn't sued HP over its independently developed version of Java called Chai, which is geared for small devices.
"I think this is great news," said Wendy Fong, standards manager for HP's embedded software operation, of Whyte's tentative ruling on clean-room Java.
Peter Mills, business development manager in the same organization at HP, agreed that the tentative rulings add credence to HP's Java-cloning effort. "It legalizes clean-room implementations of a published specification," Mills said.
Mills and Fong are careful to note that the HP's disagreements over Java are limited to the embedded software operation, which deals with software for small devices such as cell phones or personal set-top boxes. HP's corporate computing section uses Sun's Java without the objections raised by HP's embedded software group.
HP is not the only company working on clean-room Java technologies. Tower Technologies sells its own Java virtual machine aimed at server uses of Java. Transvirtual has Java technology for embedded devices. NewMonics also is aimed at the embedded space with its clean-room "Java-compliant" product. Japhar has its own independent Java work going on, and Netscape has posted its ElectricalFire Java technology as well.