Msg #: 6548 From: DON SMITH Sent: 09-22-88 02:57 To: ALL Rcvd: 09-24-88 22:45 Re: PKWARE VS SEA This letter was recieved today from Thom Henderson after I sent him the letter in Loren's FIGHTSEA.ARC Dear Mr. Smith I want to thank you for voicing your opinion on the SEA vs. PKWare Lawsuit. I do want to correct a few-misconceptions in your letter. We have only taken ONE action (singular) against ONE commercial software vendor, that being PKWare, Inc. PKWare, Inc. refused our initial attempts to mend the situation forcing us to protect our copyright and institute legal proceedings. Your letter states these actions are without basis and done with malice in an attempt to drive our competitors out of business. We initiated suit against PKWare, Inc. on the grounds of BLATANT AND DELIBERATE SOFTWARE PIRACY. The theft of our source's was confermed by an expert witness and admitted to by PKWare, Inc during legal depositions. I am truly sorry you feel our actions were wrong. Initating a law suit against PKWare, Inc was not a decision made lightly by us. We are a small family run business and did not look forward to the expense of a legal battle. We did however feel very strongly about trying to protect not only out rights as shareware publishers, but the rights of anyone who wants to use shareware as a viable means of marketing their software. If our lawsuit has no other effect on the bulletin board community, I sincerly hope that developers will able to release their products without the fear of someone else stealing their code. We are required by law to issue licenses to people using our copyrighted material in a commercial environment. Our intent is to NOT infringe upon the rights of our fellow shareware authors who wish to produce ARC compatible utilities. We are currently working on a license that will not only be fair to developers and users alike, but protect everyone under the law. *** I will continue his letter on the following message. Msg #: 6550 From: DON SMITH Sent: 09-22-88 03:47 To: ALL Rcvd: 09-24-88 22:46 Re: PKWARE VS SEA WE at SEA have been, and are continuing to take steps to improve upon ARC. We appriceate your concern. If you have any questions or comments, please do not hesitate to contact us by US Mail, phone or E-Mail. Sincerly, Thom Henderson President compuserve 72617,1167 Ok folks this is what I got in the mail today any comments? You heard anything from him Loren? Regards Don Msg #: 6556 From: ROBERT STEINBERG Sent: 09-22-88 18:41 To: DON SMITH Rcvd: 09-22-88 22:43 Re: (R)PKWARE VS SEA What's the date on the letter you received from SEA? Its interesting that Thom states that PKware admitted to stealing SEAs code. Thom's partner made a similar statement on CIS and later retracted it after he was unable to cite any deposition or legal proceeding in which PKware admitted to stealing anything from SEA. Thom's partner also stated that his claim that PKware had admitted stealing had been based on a report from a third party. It would seem that Thom is as loose with as facts as he is with his code. I wouldn't trust the word of anyone at SEA anymore than I would that of a Chicago Alderman. Msg #: 6559 From: DON SMITH Sent: 09-22-88 22:43 To: ROBERT STEINBERG Rcvd: 09-23-88 13:26 Re: (R)PKWARE VS SEA Robert, Those were my understanding also concerning your post. The letter was dated September 12 1988. STRANGE is it not? Regards, Don Msg #: 6562 From: CURTIS SAHAKIAN Sent: 09-23-88 09:02 To: BRUCE L. WILSON Rcvd: -NO- Re: (R)SEA V KATZ I had a client that was using the name arc or ark (I forgot which) for a software product (that had to do with archiving) and they ran into a number of similar names. They got a cease and desist letter and we just decided to change the name instead of fighting it. The letter was from a large company that either had not learned to control its legal staff or was lacking a bit in the area of business sense. I was clear that there was little value in the name. I imagine that there are a number of prior uses of "ARC". By the way for anyone else reading this message there is a "fair use" limitation on the right of an asshole to limit the use of a mark. I can use the term ARC in this message with impunity even if SEA has a valid claim to it. But anyway there is a reverse side to the applicable tradmark law. If SEA continues to be successful in bullying its way with ARC after a time they will end up owning rights in it...sort of the reverse side of the aspirin and formica cases. If you don't use it and defend it you lose it. This is the other side of those fact patterns. Date: 09-10-88 (17:17) Number: 9579 To: PETER OLIVOLA Refer#: 9547 From: JOHN HINES Read: YES Subj: SEA VS. PKWARE Status: PUBLIC MESSAGE If Phil "Converted key portions" to assembler, then he would be guilty as charged of copyright infringement. I am reasonably sure that he wrote his programs from scratch. From what I've seen, he settled because it was cheaper to do so, than to fight. He had to pay $40,000 in legal fees to give his code away, just think how much it would have cost to fight it out... This is one issue that won't be settled quickly. SEA has been contacting authors of other programs that read the arc format, and is trying to enforce their trademark of the word "ARC", and requiring licensing to use the format and the word archive. Irregardless of the legal issues, they are losing at the public releations side, every bbs I've been on lately is looking to dump the arc format, and SEA's programs as soon as possible. Its a shame, as the arc format has come into its own lately, many BBS programs now can read the format, and there is a host of programs to manipulate the format. If the BBS world has to switch to a new format, or even worse, several new formats, it would be a great loss. -John Date: 09-11-88 (08:41) Number: 9594 To: ALL Refer#: NONE From: MARSHALL DUDLEY Read: (N/A) Subj: SEA VS PK/ANTITRUST? Status: PUBLIC MESSAGE On the SEA vs PK affair, it seems to me that SEA is getting in a real legal bind. Let me quote some material from "BUSINESS LAW" The Dryden Press, 1986. Refer to this book for a more complete analysis, especially pages 948 - 962. Sherman Anti-trust act - An 1980 congressional enactment that (1) made illegal every contract, combination in the form of trust or otherwise, or conspriacy in restraint of trade or commerce among the several states, and (2) made it illegal for any person to monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states. The federal antitrust laws are enforced in several ways. Violations of the Sherman Act are felonies and may be prosecuted in a federal district court by the Antitrust division of the U.S. Dept of Justice. The FTC can prosecute any violations of the Sehrman act since any violations of the Sherman Act will also violate the Federal Trade Commission Act. Private parties can also file civil lawsuits in a federal district court against alleged violators of the anstitrust laws. The plaintiffs in such a lawsuit usually are customers, suppliers, or competitors of the defendants. The law permits successful plaintiffs to recover TREBLE DAMAGES! Lawsuits by private parties are an important part of antitrust enforcement - over 90% of all antitrust cases are instituted by private parties. Date: 09-11-88 (10:36) Number: 9597 To: JOHN HINES Refer#: 9579 From: PETER OLIVOLA Read: YES Subj: SEA VS. PKWARE Status: PUBLIC MESSAGE Greed and vindictivness have a way of spoiling the world. Date: 09-11-88 (19:24) Number: 9605 To: ALL Refer#: NONE From: MARSHALL DUDLEY Read: (N/A) Subj: SEA LAWSUIT Status: PUBLIC MESSAGE OPEN LETTER TO THE FTC AND JUSTICE DEPARTMENT Dear Sirs: There is a precedent being set in the computer area which will have a tremenous impact on both the computer telecommunications industry and the software industry in general. The vast majority of software for personal computers is written by other than large corporations, and this tremendous recource could be lost almost immediately. The precedent of which I speak is the affair where the two predominate sources of archieving programs have reached an agreement where the first, System Enhancements Associated, will receive the source and hold all claims to the work of the second, PK Ware. This agreement was reached after an anti-competitive lawsuit was filed by SEA against PK to force it's main competitor out of business. They have effectively done this. SEA is now approaching other programers who have written utilities to interface with the standard ARC format. Basically every programmer or company which has embraced this format, which was previously assumed public domain, is being threatened with a lawsuit by SEA now. This is virtually the same as if Lotus sued everyone who wrote a program to read data captured by 123, or by MicroSoft for writing programs which work with DOS. This has already had a chilling effect on independent programmers, those who are the backbone of the personal computer business. Fact is there is very little software that does not depend on inteactions with other programs. If this precedent is allowed to stand, the computer software industry will be fragmented, where each company's and each programmer's programs will only work with with their own software. This must not be allow to happen. SEA is also claiming rights to the word ARCHIEVE and the extension ARC. ARCHIEVE is a word which has a long history. The IBM computer has a bit called the archieve bit, and some archieves (not computer) date back to early Greek times. There are only 17,576 possible 3 letter extensions. To allow a company or individual exclusive right to any of these few extensions would make it impossible to write any software after all extensions have been "claimed". The claiming of an extension for exclusive use is monopolistic. I implore you to investigate this apparent violation of the antitrust laws before irreparable harm is done. This "agreement" must be declared in violation of the Sherman Act. Be aware that virtually 100% of all public domain software, shareware, and demo-ware is "ARCed" up for distribution. Well over 90% of all files transferred via tele- communications are in the ARC format. To allow this to be taken from the many computer users should not be taken lightly. Cont.. Date: 09-11-88 (19:28) Number: 9606 To: ALL Refer#: NONE From: MARSHALL DUDLEY Read: (N/A) Subj: SEA LAWSUIT CONT. Status: PUBLIC MESSAGE To allow every programmer to feel that writting a simple utility to enhance another program will result in a devastating lawsuit will result in a loss of the computer industry's most important resource, their programmers. _________________________end of letter_____________________________ I have seen several messages urgeing that you write SEA to show your disapproval of theri actrions. I personally believe that the actions are in violation of the Sherman Act. Let all take up a pen and write to either the FTC or Justice dept, or even better both of them. Marshall Dudley Date: 09-15-88 (09:58) Number: 9690 To: MARSHALL DUDLEY Refer#: 9606 From: JP HONEYWELL Read: YES Subj: SEA LAWSUIT CONT. Status: PUBLIC MESSAGE Is your opinion that of a lawyer? Or just a concerned layperson? Date: 09-15-88 (15:09) Number: 9693 To: ALL Refer#: NONE From: BETH ANDERSON Read: (N/A) Subj: XXX Status: PUBLIC MESSAGE Ok, so who's going to be the wizard that writes the program to change all of my xxx'd files over to the other format? Without needing all of my 40 mg to do it? Date: 09-15-88 (17:32) Number: 9694 To: JP HONEYWELL Refer#: 9690 From: MARSHALL DUDLEY Read: YES Subj: SEA LAWSUIT CONT. Status: PUBLIC MESSAGE Well the first message was quoted out of a law book. The other is the opinion of a lay person. Marshall Dudley Date: 09-15-88 (20:54) Number: 9695 To: BETH ANDERSON Refer#: 9693 From: SYSOP Read: YES Subj: XXX Status: PUBLIC MESSAGE Very simple BAT file will do the job. Already have one written up and tested. All we need is the new PAK programs. From what I have heard, the new extention will be PAK. Time will tell. Date: 09-15-88 (21:27) Number: 9697 To: BETH ANDERSON Refer#: 9693 From: PETER OLIVOLA Read: YES Subj: XXX Status: PUBLIC MESSAGE Don't worry, be happy! It shouldn't be too hard to do. It's possible to extract files now to the console and then pipe them through, say Buerg's LIST utility without leaving any trace on the disk. Using the same technique, as has been suggested to those concerned with such things, the new utility only needs to accept information from a pipe which will have to include the file name to create, and the whole thing can be done with a batch file. Add a little utility to search for xxx files and generate the command for each and the job can be fully automated. By the time the new utility appears, that problem will have been solved. I guarantee it. Date: 09-16-88 (01:14) Number: 9701 To: SYSOP Refer#: 9695 From: DONALD BIRREN Read: YES Subj: XXX Status: PUBLIC MESSAGE I heard it through the grapevine that it was going to be .PKA for Phil Katz Alternative, but they could be talking out their modems.... Date: 09-20-88 (21:58) Number: 9825 To: SYSOP Refer#: NONE From: PAUL APODACA Read: YES Subj: XXX Status: PUBLIC MESSAGE Well, XXX's attitude about XXX will result in them getting a good swft kick in the XXX when they see what it does to the bottom line. Not only have some banned the current version of XXX's program, but also all new products. I applaude your move. -- Paul Date: 09-21-88 (13:30) Number: 9842 To: BETH ANDERSON Refer#: 9693 From: JOHN WAGER Read: NO Subj: XXX Status: PUBLIC MESSAGE Changing over from .ARC files to a new format should not be hard; a simple .BAT file will do it. A few BBS Sysops have already posted messages on how they will do it. You will need an empty subdir and enough disk space for largest .ARC, as well as space for new and old version of an arc at once, but not more space than this. When the new format comes out, I'm sure there will be included a .BAT file conversion suggestion floating on most BBS's.