MS wins Sun appeal – but it's probably only temporary

And the appeal court agrees Sun has a good case


MS on Trial There was a mixed decision yesterday by the Court of Appeals in the long-running Java corruption trial in which Sun has accused Microsoft of trying to pollute Java. Yesterday's unanimous Opinion resulted from an appeal by Microsoft over some technical issues about the preliminary injunction. The essence of the decision is that Judge Ronald Whyte in the District Court did not give a sufficient explanation of his decisions. Accordingly, the preliminary junction by Judge Whyte was vacated and the case sent back to the District Court for elaboration. But the appellate court agreed that it was likely that Sun would win the substantive case at trial, although a date has not yet been fixed. The legal issue centres on whether Sun's suit is properly one for copyright infringement or breach of contract. The important distinction is that if it is a copyright case, Sun is entitled to a presumption of irreparable harm, which is more valuable to Sun in that a contract case limits damages. Judge Whyte will now have to give his reasons for deciding it was a copyright case, and it would appear unlikely that he would reverse his own conclusion. Normally a copyright owner that grants a non-exclusive licence to use copyright material waives the right to sue the licensee for copyright infringement, the appellate court noted, but went on to observe that if a licence is limited in scope and the licensee acts outside the scope, the licensor can bring an infringement action. The court noted that the issue is at the intersection of copyright and contract law, an area of law that is not well developed. The appellate court Opinion made it clear that it favoured that a party that demonstrated likely success on merits would be entitled to a presumption of irreparable harm, provided it established that copyright had been violated. Another claim by Microsoft was that in the unfair competition claim, under California law any injunction must be based on future as well as past conduct. Sun had filed a motion under the California Business and Professions Code alleging unfair competition. Microsoft's claim was agreed by the appellate court and referred back, so Judge Whyte will have to address this. Again, it is likely that the judge will just tidy up his decision. The case draws attention to deficiencies in the speed with which the courts act in high technology cases, and shows that contracts can be wilfully broken by a party without much fear of effective punishment. Java was licensed to Microsoft "on a rushed basis" in 1996 for an annual fee of $3.75 million. In late 1996, Sun became concerned that Microsoft was attempting to pollute Java by creating a version that would only run with Windows. Sun sued in October 1997 and won a preliminary injunction in November 1998 that required Microsoft to pass Sun's Java compatibility tests if it shipped a product that included Java technology. The Order was clarified in May. With the weight of evidence in the Washington trial being strongly in favour of Microsoft having acted deliberately to sabotage Java and protect its operating systems monopoly, yesterday's decision adds weight to the need for monopolists to be dealt with effectively by the courts, since high tech contracts and technology licensing require goodwill on both sides if they are to be effective. When the licence was negotiated, the Java Native Interface did not exist, so was undefined. Nevertheless, the court found yesterday that there was "considerable evidence that JNI falls within Microsoft's compliance obligations". Overall, the case still looks good for Sun since the appellate court was firmly of the opinion that: "There is significant evidence to support the district court's holding that Sun has a reasonable likelihood of proving that Microsoft's Java compiler violated the compatibility provisions" of the contract. The court also found "considerable evidence" supporting the finding that Microsoft's extended (and incompatible) compiler mode is not permissible. The appellate decision made it possible for both sides to claim victory. Sun said that it thought "Judge Whyte will make the necessary findings to sustain the injunction." Microsoft said it is not anticipating making any "substantial product changes" as a result of the appellate court decision. Sun and Microsoft are not discussing any settlement, but Sun said yesterday it would welcome any interest by Microsoft in talks. ® Complete Register Trial coverage


Other stories you might like

  • Has Intel gone too far with its Ohio fab 'delay' stunt?
    With construction unceremoniously underway, x86 giant may have overplayed its hand

    COMMENT The way Intel has been talking about the status of its $20 billion Ohio fab project, you would be forgiven if you assumed that construction on the Midwest mega-site has been delayed in light of Congress struggling to pass a large subsidies package that would support new American chip factories.

    When Intel delayed a groundbreaking ceremony for the Ohio manufacturing site two weeks ago out of frustration over the subsidies inaction, some headlines may have given you the impression the semiconductor giant was putting off construction entirely.

    However, an Intel spokesperson made it clear to The Register and others at the time that the start date for construction had not changed.

    Continue reading
  • Hive ransomware gang rapidly evolves with complex encryption, Rust code
    RaaS malware devs have been busy bees

    The Hive group, which has become one of the most prolific ransomware-as-a-service (RaaS) operators, has significantly overhauled its malware, including migrating the code to the Rust programming language and using a more complex file encryption process.

    Researchers at the Microsoft Threat Intelligence Center (MSTIC) uncovered the Hive variant while analyzing a change in the group's methods.

    "With its latest variant carrying several major upgrades, Hive also proves it's one of the fastest evolving ransomware families, exemplifying the continuously changing ransomware ecosystem," the researchers said in a write-up this week.

    Continue reading
  • What do you mean your exaflop is better than mine?
    Gaming the system was fine for a while, now it's time to get precise about precision

    Comment A multi-exaflop supercomputer the size of your mini-fridge? Sure, but read the fine print and you may discover those performance figures have been a bit … stretched.

    As more chipmakers bake support for 8-bit floating point (FP8) math into next-gen silicon, we can expect an era of increasingly wild AI performance claims that differ dramatically from the standard way of measuring large system performance, using double-precision 64-bit floating point or FP64.

    When vendors shout about exascale performance, be aware that some will use FP8 and some FP64, and it's important to know which is being used as a metric. A computer system that can achieve (say) 200 peta-FLOPS of FP64 is a much more powerful beast than a system capable of 200 peta-FLOPS at just FP8.

    Continue reading
  • Meta's AI translation breaks 200 language barrier
    Open source model improves translation of rarer spoken languages by 70%

    Meta's quest to translate underserved languages is marking its first victory with the open source release of a language model able to decipher 202 languages.

    Named after Meta's No Language Left Behind initiative and dubbed NLLB-200, the model is the first able to translate so many languages, according to its makers, all with the goal to improve translation for languages overlooked by similar projects. 

    "The vast majority of improvements made in machine translation in the last decades have been for high-resource languages," Meta researchers wrote in a paper [PDF]. "While machine translation continues to grow, the fruits it bears are unevenly distributed," they said. 

    Continue reading
  • Tracking cookies found in more than half of G20 government websites
    Sorry, conspiracy theorists, it's more likely sloppy webdev work rather than spying

    We expect a certain amount of cookie-based tracking on retail websites and social networks, but in some countries up to 90 percent of government sites have implemented trackers – and serve them seemingly without user consent. 

    A study evaluated more than 118,000 URLs of 5,500 government websites – think .gov, .gov.uk. .gov.au, .gc.ca, etc – hosted in the twenty largest global economies – the G20 – and discovered a surprising tracking cookie problem, even among countries party to Europe's GDPR and those who have their own data privacy regulations.

    On average, the study found, more than half of cookies created on G20 government websites were third-party cookies, meaning they were created by outside entities typically to collect information on the user. At least 10 percent, going up to 90 percent, come from known third party cookies or trackers, we're told.

    Continue reading
  • Iceotope attracts funds for liquid cooling from global investors
    Round led by Singapore's ABC Impact, which sees growing market for the technology in Asia

    UK-based liquid cooling company Iceotope has scored £30 million (c $35.7 million) in a funding round led by Singapore's ABC Impact private equity provider, which sees a growing market for the technology in Asia.

    The investment syndicate providing the funding comprises Northern Gritstone, British Patient Capital, Pavilion Capital, and an existing investor, Edinv. Also included is SDCL Energy Efficiency Income Trust, an investment company dedicated to energy-efficiency projects.

    According to Iceotope, the investment syndicate also includes nVent, a specialist in heat-management systems and enclosures. In addition to investing, nVent has formed a trading agreement with Iceotope on modular integrated solutions for datacenters, edge facilities, and high-performance computing (HPC) applications.

    Continue reading

Biting the hand that feeds IT © 1998–2022