Subject: Re: Phil Katz From: jaapg@fcs.nl (Jaap van Geels) Newsgroups: comp.os.os2.advocacy Date: Fri, 19 May 2000 22:44:03 +0200 Organization: Van Geels & Co Look what I found in a dusty corner on my harddisk, I saved it from Fidonet on September 27, 1988: SEA vs. PKWARE Shareware Company Threatens BBS World That Gave It Life --------------------------------------------------------- Last April, System Enhancement Associates, vendors of the archive utility ARC, filed suit against Phil Katz, author of the archive programs PKARC and PKXARC, and his company PKWARE. SEA claimed trademark infringement on the name "ARC," and violation of their copyright on the "look and feel" of ARC's command-line user- interface, in addition to charging Katz with appropriating ARC program code. The company demanded all profits from PKARC and PKXARC, treble damages, statutory damages at the highest level allowed, and attorney fees. It also requested that all copies of PKARC and PKXARC, from those owned by bulletin board users to those licensed by businesses, be impounded, and that Katz be barred from ever again selling or distributing the programs. In August, SEA and PKWARE settled out of court. SEA obtained the source code for PKARC and PKXARC, and Katz was required to pay SEA royalties on the program back to 1985, in addition to attorney's fees and legal expenses. He also agreed not to use the word "arc" in a trademark sense. Under the settlement Katz is permitted to license his PKARC and PKXARC programs (or PKPAK and PKUNPAK, as they are now called) from SEA until January 31, 1989. (Anyone who licenses PKPAK and/or PKUNPAK from Katz prior to then may continue to use those versions of the program perpetually, even after January 31, 1989.) Recently SEA filed contempt of court charges against Katz. While the company has kept details of their allegations under seal, they appear to be alleging that any use of the word "arc" by Katz, even as a descriptive or generic term in his programs' user manual is in violation of the settlement. SEA has lately been contacting other software developers whose products make use of the ARC file format and threatening legal action. Gary Conway, author of NARC, an archive extraction utility, was contacted by the company, which tried to pressure him to license the ARC format and turn over the source code of NARC. Don Kinzer of Polytron received a similar call from Thom Henderson of SEA. Henderson told Kinzer that if a software product had the ability to read an ARC file--not create or extract it, merely read it--SEA would require the vendor to obtain a license from SEA. Settlement Issues and Rumor Mongering One rumor is that the judge in the PKWARE-SEA case had an outside consultant compare SEA's and Katz's source code. When the consultant found plagiarized code in PKARC, the story goes, Katz settled quickly to save face. Not true. No attorneys for either SEA or Katz had ever met with the judge prior to the settlement, and at no time did the judge ever retain an expert or himself see the source code. The real issues in the case were SEA's charges that Katz had copied ARC's program code and that he had violated the company's trademark on the word "arc." In regard to the first complaint, there are only two pieces of code in ARC with non-trivial algorithm: the squeeze code and the crunch code. SEA copied these almost verbatim from public domain sources in C. Katz's squeeze/crunch code is coded almost entirely in assembly. No competent programmer could ever conclude that Katz plagiarized SEA code. SEA's claim that it owns a trademark on the word "arc" is, as one UUCP mail user noted, like Digital Equipment insisting that it owns the word "equipment." The word "arc" as an abbreviation for "archive" has been in the public domain long before either SEA or PKWARE entered the scene. Any word which has become a part of popular parlance, as "arc" has, cannot be protected as a trademark. Nevertheless, SEA claims that no one else can use this word to describe their archive utilities, and that Katz used it to intentionally confuse users and capitalize on the popularity of SEA's ARC. Finally, SEA claimed in its lawsuit that Katz violated the copyright on the "look and feel" of ARC's user-interface. Anyone who has ever used both ARC and PKARC knows that neither touts an interface that is anything more than a few commands and switches entered at the DOS command line. There are no menus. There are no full-screen displays. There is nothing artistic or seminal in the interface of either. Yet, SEA argued in its suit that Katz "substantially copied and plagiarized the entire appearance and user interface and screens which result when a computer user interacts with or uses [ARC]." By the same logic the author of Fido bulletin board software may as well sue the designer of RBBS. Why You As a User Should Care Over the past year the popularity of Katz's PKARC/PKXARC programs among both bulletin board and business users surpassed that of SEA's ARC by a wide margin. Many consider the suit that SEA waged against PKWARE, as well as the company's subsequent legal bullying of other shareware archive software developers, as legal coercion intended solely to drive its competitors out of business--a tactic not unheard of in the computer industry. Defending your software against a suit such as the one filed by SEA against PKWARE can run from $100,000 into the millions, as copyright and patent suits are the most costly forms of litigation to defend against. If your product is not grossing over a million in sales, you will be advised (nay, forced by economics) to seek an early settlement--as Katz did. Consider what this means if you're a Dan Bricklin-type programmer running a small software operation out of your home. The program you slaved over for months so that it might win you emancipation from your 9-to-5 job, you might be forced to destroy in a "legal settlement" over a bogus suit. (Some of us know people besides Katz to whom this has happened.) Consider what this means if you're a user. Your choice in software is being dictated, not by a software package's intrinsic merits, but legal manipulation. Legal manipulation that favors the litigant with the most money as opposed to the one with the best product. It also means that great programmers are spending their time in court when they could be busy creating better products for the marketplace. Unfortunately, legal experts are predicting an escalation in such suits over the next decade. What Can We Do? As a user you can stand up and say that you're not going to put up with companies that use the courts to strangle their competition, that employ lawyers and lawsuits to bully companies and independent programmers out of existence, that dish out frivolous suits rather than decent products. No, you do not have to take it anymore, and yes, you do have the power to change things. A number of bulletin board operators, to protest SEA's legal bullying of its competitors, have stopped using SEA's ARC to archive programs on their systems. We suggest that you likewise boycott SEA's ARC, as well as the company's SEADOG mail program, until the company desists its harassment of archive authors. But boycotts alone are rarely effective. We also ask that you write to SEA. Accompanying this file is a "form letter" to SEA (in the accompanying file LETTER.TXT) that you can print out, sign your name to, and mail. Feel free to add to or change anything in the letter. In addition, please upload this file and the accompanying file LETTER.TXT onto any bulletin board or on-line system that you call. If enough of us speak up and let it be known that we are opposed to this kind of misuse of the legal system, we will be sending a loud message to software vendors that the computer user community will not tolerate firms that attempt to drive their competitors out of business through legal harassment. Remember that together we have built the PC community into the most vibrant computer user community in history, and by uniting we can make it even better. Judy Getts Milwaukee, Wisconsin Contributing Editor/Telecommunications, PC World Magazine (Originated 8.29.88, Sound of Music BBS, Oceanside, NY)