Court Splits on Microsoft's Java Appeal

UPDATE: A three-judge panel rules against 'must-carry' for Windows but leaves the door wide open for Sun to continue its anti-trust crusade.

A U.S. Court of Appeals Thursday ruled that Microsoft does not have to carry the Java programming language in its Windows operating system.

The decision by the three-judge panel in Richmond, Virginia reverses lower court U.S. District Judge Frederick Motz's "must-carry" ruling saying the penalty was in error.

"Because the district court was unable to find immediate irreparable harm and because it entered a preliminary injunction that does not aid or protect the court's ability to enter final relief on Sun's PC-operating-systems monopolization claim, we vacate the mandatory preliminary injunction," the judges said in their ruling.

However, the verdict was only a partial setback for Santa Clara, Calif.-based network computer maker Sun Microsystems , which filed the civil suit, as the panel accepted the lower court's determination that Microsoft engaged in anticompetitive acts.

"We are extremely pleased with the Appellate Court's ruling today affirming the copyright infringement injunction. This decision confirms that Microsoft violated our prior settlement agreement, and that it did so in a way that continued to fragment the Java platform on PCs," said Sun vice president and legal spokesperson Lee Patch.

Microsoft Spokesman Jim Dessler told internetnews.com the company was also pleased with the court ruling.

"Today's ruling affirmed our arguments that a "must-carry" provision for Java was not necessary," Dessler said. There are many ways that end users can acquire Java such as through download and other means. This is another example of our commitment to move beyond our conflicts.

Dessler also said that Microsoft has no problem following the courts instructions on the copyright issue and has already stopped distributing the Microsoft JVM through Internet download.

The case stems back to the government antitrust suit against Microsoft filed in 1998 and Sun's allegation that Microsoft promoted an incompatible version of Java for the release of its Windows XP operating system, which was released in 2001.

Microsoft's argument for appeal was based on its view that Sun doesn't face any "imminent irreparable harm" that would make it imperative for it to revise its Windows operating systems with Sun's competitive Java programming language.

The ruling also means Microsoft can no longer use older versions of Java in its operating system.

Analysts watching the case closely say the legal dog fight between Sun and Microsoft will continue to eat up both companies' time, energy, resources and money, but the outcome is far from certain.

The courts are playing it right down the middle on this one," Yankee Group senior analyst Laura Di Dio told internetnews.com. "But I think after the government's anti trust suit, that was a safe decision for the courts to make. Now, what the court is saying to Sun is 'Go ahead and file your anti-trust case, but the burden of proof is on you.' Any time any of these companies decides to take the litigation route, everybody loses because they are sacrificing time spent serving customers."

The original lawsuit was settled by Microsoft in January 2001 to the tune of $20 million. Sun initiated that lawsuit in 1997. It stemmed from an agreement the two companies made in 1996, when Microsoft obtained a license from Sun to use the Java technology, with the stipulation that Microsoft would deliver only compatible implementations of the technology.

Following the agreement, Microsoft used the Java Development Kit (JDK) 1.1.4, a version that had long been superceded, thus ensuring Windows-only compatibility. Sun argued that by making its Java implementation Windows-only, Microsoft violated the terms of the license.

As part of the settlement, Sun gave Microsoft the right to continue using the outdated JDK for seven years, though Microsoft made no commitment to do so.

As a result, in July 2001, Microsoft decided not to include a Java Virtual Machine (JVM) in Windows XP.

The "must-carry" issue may even be a non-issue for Sun as hardware and software vendors are separately pledging support for Sun's latest versions of Java. Earlier this month at Java One, Hewlett-Packard and Dell Computer joined Apple Computer, Red Hat Lindows.com as companies that will include updated versions of the Java Runtime Environment (JRE) on their systems.

"This is an important victory for the Java community -- it helps to ensure that only current, compatible Java technology will be distributed on PCs," said Sun vice president of developer platforms Rich Green.






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