Marshal of the Wild, Wild Web
When a federal appeals court panel hears arguments Wednesday on whether to allow Microsoft Corp. to resume shipping its version of Sun Microsystems Inc.’s Java programming language, the man at the center of the fight won’t be there.
But the exacting orders of U.S. District Judge Ronald Whyte, the soft-spoken man who ruled against one of the planet’s most powerful companies, will still pack a serious punch.
The three justices of the U.S. 9th Circuit Court of Appeals in San Francisco are obligated to review all of Whyte’s factual and legal findings. Most likely, they will defer to his exhaustive inquiry, which included dozens of boxes of filings, days of oral debate and special tutorials on technology.
Because so many high-technology issues are tested first in Silicon Valley, the rulings of Whyte and his colleagues at the U.S. Courthouse in San Jose are used for guidance by judges in other jurisdictions around the country. And since Whyte writes more opinions than other judges in the district, he is doing more than anyone else to shape new legal models for the Internet age.
Lawyers who have come before Whyte--even those who have lost--see the 56-year-old judge as an intellectual town marshal on the freewheeling Web. He’s cautious yet unafraid of the unknown.
In a landmark case involving a dispute between the Church of Scientology and an Internet service provider, Whyte struck a compromise that was essentially adopted by Congress in the Communications Decency Act of 1996.
Whyte held in that suit that ISPs and electronic bulletin board operators are more like bookstores than publishers. Therefore, Whyte wrote, they can’t be held liable for inaccurate or unfair postings--unless they are specifically warned about them by the offended party.
“He applied traditional principles of copyright law to an entirely new medium in a way that I thought was fair,” said attorney Randy Rice of San Jose, who represented the defendant, Netcom. “Even when the issues were difficult and counsel were difficult, I think he bent over backward to treat counsel fairly.”
Whyte said he enjoys the cases about intellectual property and freedom the most, but he also handles his share of routine suits over employment discrimination, fraud and other issues. He also has a criminal caseload and must wrestle with the complexities and drama of death row appeals. In those cases as well, he wins admiration from both prosecutors and defenders.
“I’ve been before judges all over the country, and he’s the best judge I’ve seen,” said Matt Powers, a Palo Alto lawyer who represents Applied Materials Inc. and other technology companies. “He works hard. He’s smart. And he really cares about getting it right.”
Whyte, in his typical unassuming manner, isn’t eager to take much credit for his popularity. “I at least appear to listen. I think I have a good temperament. And people feel that I’ve given things some thought.”
Cases Discussed at the Dinner Table
Whyte’s capacity for systematic reasoning may have started growing subliminally, even when he was trying to resist it. His late father was a Los Angeles Superior Court judge and an uncle was a judge in Orange County.
“My father talked about his cases” around the dinner table of the family’s Claremont home, Whyte said, “but I probably tuned it all out.”
Whyte majored in mathematics at Wesleyan University in Middletown, Conn. Only after his junior year did he decide that law was as good a profession as anything else. He went on to law school at USC, followed by a draft-induced stint as a military lawyer.
In 1971, he joined Hoge, Fenton, Jones & Appel, one of the largest law firms in San Jose, where he mainly defended public agencies against lawsuits. With a background in math, Whyte soon began gravitating toward things technological, and he was among the first at the firm to get a personal computer.
He also picked up the work ethic of surrounding Silicon Valley. Whyte is in his office from 8:30 a.m. to 7 p.m., sometimes works after dinner, and puts in one full day each weekend. That helps move his cases along more quickly than those before many other judges. “I feel I have to do it to keep up,” Whyte said. “Other people may be able to do it in less time.”
Indeed, many of the cases that come before Whyte deal with complex issues that often include arcane arguments over technology.
A recent case involving publishing software company Adobe Systems Inc. centered on whether a typeface could be copyrighted. After Whyte set a precedent by ruling that it could be, Adobe’s rival settled this month, admitting to infringing more than 1,000 font programs and pledging to stop.
Whyte is somewhat rare among judges accustomed to power and flattery in that he quickly confesses when he doesn’t understand something--at times requesting mid-case tutorials to educate himself.
Because of that, “I enjoy it a lot more than if I’m saying, ‘Gee, do I really get it?’ ”
Whyte is currently handling a bitter intellectual property fight between Cadence Design Systems Inc. and Avant Corp., two designers of software used to manufacture silicon chips. Six Avant executives have been indicted on charges they stole trade secrets from Cadence. Whyte found that the company violated Cadence copyrights.
While an appeals court ruled in the Cadence case that Whyte did not act strong enough against Avant in an early phase of the case, Whyte has also been criticized for acting too harshly in another copyright suit.
He was faulted by the Wall Street Journal and others after siding with the Church of Scientology in a suit against one of its critics, Keith Hens, an engineer who posted some secret, copyrighted Scientology writings.
Whyte rejected Henson’s argument that he qualified for the exception to copyright law in cases of “fair comment and criticism,” since Henson felt the documents were so absurd on their face that he didn’t bother to annotate them. After barring that defense, Whyte allowed a jury to award the Scientologists a record $75,000.
Most of Whyte’s rulings aren’t seen as too conservative, though, or they would be reversed more by the generally liberal 9th Circuit. “They generally respect his work,” said David Steuer, a former clerk at the appeals court who practices with Palo Alto technology law specialists Wilson Sonsini Goodrich & Rosati.
‘I’m Not a Political Person’
Whyte was appointed to the state bench in Santa Clara in 1989 by then-Gov. George Deukmejian. He was reelected to that post before Gov. Pete Wilson put his name forward for the federal judgeship. He was sworn in in 1992.
“I just happened to be in the right place at the right time,” Whyte said. “I’m not a political person.”
A moderate Republican, Whyte and his wife gave $400 to state Sen. Becky Morgan in 1987, $500 to then-U.S. Sen. Wilson in 1988, and $450 to U.S. Rep. Bill McCollum in 1990, records show.
Liberal groups didn’t raise objections to his appointment.
“He’s conservative, but not extreme,” said Elliott Mincberg, legal director of Norman Lear’s People for the American Way.
“I’m a pretty straight-laced, boring person,” said Whyte, who met his wife in college. Ann Whyte also works in the legal system, coordinating volunteer advocates for youths who are under court control. The couple have two adult children.
Whyte’s investments, which must be disclosed to the government, are conservative, consisting mostly of mutual funds, public bonds, Treasury bills--and, at least as of a year ago, one $15,000-plus chunk of stock in biotechnology pioneer Genentech Inc.
If Whyte is cautious in most ways, he can also be fearless when it comes to exploring uncharted territory.
For vacations, he has traveled along the Amazon River and to Antarctica. “If you like penguins and ice, it’s great,” he said.
In court, he will throw out tradition if it isn’t working and start over--a big plus for someone continually confronted with groundbreaking issues.
After Whyte’s first jury trial on a complex patent issue ended in a split panel and no verdict, “you could tell he was really frustrated,” said attorney Powers, who was the next to bring such a case before Whyte.
“He was genuinely searching for a solution, and he was throwing out fairly radical ideas--’How about letting jurors ask questions? How about letting lawyers give mini-opening statements before key witnesses?’ ”
Whyte went beyond conscientiousness in the wrenching case of David Mason, a convicted murderer on death row who decided he wanted to drop his appeals and be executed.
Mason’s appointed attorney, Charles Marson, ultimately lost a long battle to keep Mason alive. Yet he said: “I wish all judges were like Judge Whyte. He was a wind of fresh air, not just a breath.”
Early in that case, after Whyte granted a stay of execution, his first call wasn’t to Marson with the good news--it was to San Quentin. Later, after coming to the agonizing conclusion that murderer David Mason had the right to fire Marson, Whyte immediately reinstated Marson for the purpose of appealing that order.
And on the last day of Mason’s life, Whyte made sure the killer knew that Whyte would be available until midnight if Mason had a change of heart.
“This is a man who has his priorities straight,” Marson said.
Prone to Issuing Tentative Rulings
In the Microsoft case and others, Whyte has taken to issuing tentative rulings--an unusual move that allows the losing side one last chance to talk him out of it after seeing the method in his thinking.
In late May, Whyte filed such a ruling, indicating that he planned to grant summary judgment to Sun, without a trial, on one of the core issues. He found that Microsoft had violated its licensing agreement with Sun--and therefore Sun’s copyright on the Java programming language--by altering the language’s environment to make it work better with Windows than with other operating systems.
The merits of Whyte’s November preliminary injunction on the same issue, barring Microsoft from using versions of the copyrighted Java in Windows 98 and other products, will be argued before the 9th Circuit judges this week.
The stakes involve not only the future direction of Java, a popular tool for programmers, but the likelihood of Microsoft’s continued dominance of the operating system market, since Java applications can run on many systems.
Perhaps equally important for denizens of Silicon Valley, a ruling upholding Whyte would enhance his stature as an architect of technology law even more. That means they would feel more confident that future orders won’t be thrown out, and it would enhance business confidence in the reliability of the federal courts in the age of e-everything.
Either way, the tall, quiet man from Southern California is going to keep laboring away. “I like being a decision maker, and I like trying to resolve disputes. There’s never a day when I come to work and I’m bored.”
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Times staff writer Joseph Menn can be reached at joseph.menn@latimes.com.
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At a Glance
Name: Ronald Whyte
Age: 56
Occupation: U.S. district judge
Family: Wife Ann, two adult children
Education: Bachelor’s, Wesleyan University, 1964; Juris doctorate, USC, 1967
Military: U.S. Navy judge advocate general, 1968-71
Employment: Hoge, Fenton, Jones & Appel, 1971-89; Santa Clara County Superior Court judge, 1989-92; U.S. District Court, 1992-present
Key White Cases
As a U.S. District Judge in San Jose, Ronald Whyte is helping to shape legal models in the Internet age. Here are some of his key rulings
Scientology vs. Netcom
Issue: Can Internet bulletin board operators be held liable for content?
Ruling: Only if offended parties give detailed warnings.
Status: Whyte’s stance was adopted by Congress in 1996.
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Sun Microsystems vs. Microsoft
Issue: After Sun licensed its Java programming language to Microsoft, did Microsoft violate the contract by altering the Java environment so that it works better with Windows than with other operating systems?
Ruling: Preliminary injunction and tentative order that Microsoft violated Sun’s copyright.
Status: Appeal of injunction will be argued before appeals court Wednesday, with a ruling expected this summer
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Cadence Design Systems vs. Avant
Issue: Where Avant admits that some Cadence code appeared in its programs for designing computer chips, should any Avant products be pulled from the market?
Ruling: Some Avant programs were blocked from sale, but not all that Cadence had sought.
Status: The U.S. appeals court agreed with Whyte that Avant violated Cadence copyrights but said he should have been tougher and granted an injunction against Avant’s ArcCell software. The U.S. Supreme Court declined to consider the matter, and the lower-court fight has moved on to newer versions of the product.
