By Rachel Chalmers
In a bid to reinstate an injunction against Microsoft Corp that was overturned by the US Ninth Court of Appeals last month (CI No 3.731), Sun Microsystems Inc has filed two motions with the Federal District Court in San Jose, California. Sun wants to prevent Microsoft from selling certain modified versions of the Java programming language. For the time being, the motions and accompanying briefs remain under seal. In November 1998, District Court Judge Ronald Whyte barred Microsoft from shipping versions of Java that do not comply with Sun’s compatibility tests. Microsoft appealed Whyte’s ruling and in August 1999, the appeals court overturned the injunction.
The decision was a complex one. The appeals court agreed with Whyte that Sun is likely to prevail on the merits of its case – that is, that Microsoft did exceed the terms of the Technology License and Distribution Agreement (TLDA) when it added non- compliant features to its own version of Java. But where Sun calls this copyright infringement, Microsoft’s lawyers say it is merely breach of contract. Whyte invoked the presumption of irreparable harm applicable to copyright infringement cases. The appeals court has not actually contradicted that finding, but it has asked for further explanation as to how Whyte came to that decision. Last Friday, September 3 1999, lawyers for Sun and Microsoft met Whyte for a status conference to schedule briefings ahead of an October 15, 1999 hearing on the motions.
