Microsoft in November was ordered by U.S. District Judge Ronald Whyte to fix its products -- including Windows 98 and Internet Explorer -- to comply with Sun's Java. Whyte ordered Microsoft to support Sun's Java Native Interface and to stop using unauthorized compiler extensions and keyword and compiler directives as the default mode in Visual J++ 6.0, Microsoft's Java development tool.
Microsoft in January appealed Whyte's injunction, while at the same time saying it would continue to comply with the ruling. Today the Appeals Court vacated the ruling and remanded it to Whyte for further action.
Explain yourself, please
The Appeals Court also said that under California law, Whyte's injunction must be based on the likelihood of Microsoft's future conduct and not just its past conduct.
Sun attorney Rusty Day said he is confident that Whyte will explain to the Appeals Court why Microsoft's actions constitute copyright infringement. Indeed, Day said, Whyte has already laid out his thoughts in a tentative decision granting summary judgement released in May, in which Whyte held that Microsoft has violated Sun's Java copyright. Issues decided in a grant of summary judgement cannot be raised at trial.
"[The Appeals Court has said] 'Judge Whyte, even if you conclude on reexamination that this is not copyright, you can decide whether as a contractual matter you can enter this injunction because Microsoft is in violation of the license,'" Day said. "Plus, Sun still has pending an undecided motion for a preliminary injunction based on unfair competition. So going forward Judge Whyte has a full plate on his table, and we're confident he'll look at all the issues."
Day also said Sun has already asked Whyte to make sure there is no lapse in the injunction while the Appeals Court remands it.
A Microsoft spokesman said Microsoft does not anticipate "making any substantial product changes" as a result of the ruling but will continue to press its case. The spokesman called the ruling "a positive step in a long case." Microsoft claims the injunction should revolve around a contract dispute and that Microsoft is in compliance with its contract.
Although the Appeals Court agreed with Sun that Microsoft has likely violated its Java contract, it told Whyte to elaborate on why Microsoft's actions constitute copyright infringement rather than breach of contract. Copyright infringement entitles Sun to a presumption of irreparable harm.
