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SEA (ARC) sues PKware (PKARC)

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==**********
Topic 9         Sat Jul 09, 1988
HOMCHICK [Paul]              at 21:20 EDT
Sub: SEA (ARC) sues PKware (PKARC)!         

SEA (Thom Hendersen) has filed suit againt Phil Katz and PKware, claiming the
PKARC infringes on ARC.  This topic contains the full text of the complaint,
as well as several thoughtful commentaries.
16 message(s) total
==**********
----------
Category 11,  Topic 9
Message 1         Sat Jul 09, 1988
HOMCHICK [Paul]              at 21:27 EDT
 
 (This is the full text of the complaint.  It is LONG, about 440 lines).

 Article 13580 of comp.sys.ibm.pc:
 From: [email protected]
 Newsgroups: comp.sys.ibm.pc
 Subject: Re: Phil Katz (PKARC author) sued by SEA (ARC author)
 Date: 6 Jul 88 14:59:58 GMT
 Organization: The Portal System (TM)
 Lines: 448
<RETURN>, <S>croll, <Q>uit or <E>xit ?s


 Following is the complete text of the verified court complaint
 filed by SEA's Thom Henderson (author of ARC) against PKware's
 Phil Katz (author of PKXARC and PKARC).  I think the importance
 of this case and associated issues warrants a net posting of
 this length, but my apologies to any who may object.

 ----cut here--------cut here--------cut here--------cut here----


                  UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF WISCONSIN
 ____________________________________________________________

 SYSTEM ENHANCEMENT
 ASSOCIATES, INC.,

           Plaintiff,

        v.                          Case No. 88-C-447

 PKWARE, INC. and
 PHILLIP W. KATZ,

           Defendants.
 ____________________________________________________________

                     VERIFIED COMPLAINT
 ____________________________________________________________

            Plaintiff, System Enhancement Associates, Inc.
 ("SEA"), as and for a complaint alleges as follows:

               THE PARTIES - JURISDICTION AND VENUE

           1.  Plaintiff SYSTEM ENHANCEMENT ASSOCIATES, INC.
 hereinafter Plaintiff or SEA, is a corporation of the State
 of New Jersey having a place of business at 21 New Street,
 Wayne, NJ 07470.  Plaintiff is engaged in the business of
 developing and licensing others to use computer programs and
 software.

           2.  Defendant PKWARE, INC. is a corporation of
 the State of Wisconsin.  Upon information and belief, Defen-
 dants are engaged in the business of licensing others to use
 computer programs and software, and do business in the State
 of Wisconsin and in this District.  Defendants maintain a
 place of business at 7032 Ardara Avenue, Glendale, WI 53209.

           3.  Defendant Phillip W. Katz ("Katz"), AKA Phil
 Katz, is an officer and a director of Defendant PKWARE.
 Defendant Katz resides in the State of Wisconsin and in this
 District.  All acts by Defendant PKWARE complained of herein
 were made with full knowledge and under the specific direction
 and control of Defendant Katz.

           4.  This COMPLAINT sets forth causes of action for
 copyright infringement under 17 USC 101, et seq and trade-
 mark infringement and unfair competition under the Lanham
 Act, 15 USC 1051, et seq and under common law.

           5.  This Court has original jurisdiction over the
 Copyright and Lanham Act claims pursuant to 28 USC 1338(a)
 and, with respect to the Lanham Act claims, additionally
 under 15 USC 1121, and over the other claims under the
 doctrine of pendant jurisdiction.  This Court further has
 jurisdiction over the other claims pursuant to both 28 USC
 1338(b), and because this civil action is between citizens
 of different States and the matter in controversy exceeds
 the sum or value of $10,000, 28 USC 1332(a)(1).

           6.  Venue is proper as to the Defendants pursuant
 to 28 USC 1391 generally and as to the copyright infringement
 causes of action pursuant to 28 USC 1400(a).

           7.  This Court has jurisdiction over the subject
 matter in controversy and the parties to this action.  Venue
 is proper as to the Defendants, who reside or may be found
 in this District.

                 COUNT I:  COPYRIGHT INFRINGEMENT

           8.  Prior to October 1986, Plaintiff, who was then
 and ever since has been a citizen of the United States and
 the State of New Jersey, created and wrote an original work,
 namely a computer program, entitled "ARC File Archive Utility
 Version 5.20", and additionally, prior to April 1987, created
 and wrote a revised version of such work, entitled "ARC File
 Archive Utility Version 5.21" (hereinafter collectively
 referred to as the "ARC programs").

           9.  Each of the ARC programs contains a large
 amount of material wholly original with Plaintiff and is
 copyrightable subject matter under the laws of the United
 States.

           10.  At all times relevant to this action, Plaintiff
 complied in all respects with the Copyright Act of 1976 and
 all other laws governing Copyright, and secured the exclusive
 rights and privileges in and to the Copyrights to the ARC
 programs.

           11.  Plaintiff has received from the Register of
 Copyrights Certificates of Registration, dated and identified
 as follows:

           a.  February 16, 1988, TX2-242-311; and
           b.  March 30, 1988, TX2-264-701

 for, respectively, "ARC File Archive Utility Version 5.20"
 and "ARC File Archive Utility Version 5.21".

           12.  At all times relevant to this action, Plaintiff
 has been and is the sole proprietor of all rights, title and
 interest in and to the Copyrights in the ARC programs.

           13.  Each copy of the copyrighted ARC programs
 published by Plaintiff and all copies made by Plaintiff or
 under its authority had associated therewith a restrictive
 license prohibiting copying any ARC programs for purposes of
 commercial exploitation.

           14.  After October 1986 and April 1987, Defendants,
 jointly and severally, infringed Plaintiff's Copyrights by
 publishing, placing on the market and commercially exploiting
 works entitled "PKARC FAST! Archive Create/Update Utility
 Version 3.5  04-27-87" and "PKXARC FAST! Archive Extract
 Utility Version 3.5  04-27-87" (the "infringing works") which
 were copied largely from Plaintiff's copyrighted works "ARC
 File Utility Version 5.20" and "ARC File Utility Version
 5.21".

           15.  Continuously since about at least as early as
 April 27, 1987, Defendants have, to Plaintiff's irreparable
 damage, been publishing, licensing and selling, and otherwise
 making commercial exploitation of the infringing works,
 utilizing the same channels of commerce as Plaintiff, adver-
 tising in the same journals (one example of which is hereto
 attached as Plaintiff's Exhibit 10) and marketing such
 infringing works in the same manner as Plaintiff.

           16.  Defendants' infringing works were published
 and commercially exploited without license or authorization
 by Plaintiff.

           17.  True copies of Plaintiff's copyrighted works,
 and the respective Registrations therefor, are hereto attached
 as Plaintiff's Exhibits 1 through 4, respectively.

           18.  Copies of documentation for Defendants'
 infringing works are hereto attached as Plaintiff's Exhibits
 5 and 6, respectively.  On information and belief, Plaintiff's
 Exhibits 5 and 6 are true copies of works of Defendants
 published under the authority or license of Defendants,
 jointly and severally, for which Defendants bear responsi-
 bility.

           19.  Plaintiff, by its Attorney, notified Defendants
 that Defendants have infringed and are infringing Plaintiff's
 copyrights by a US Postal Service Certified Mail letter dated
 December 23, 1987.  True copies of said notice letter and
 its Return Receipt are hereto attached as Plaintiff's Exhibits
 7 and 8, respectively.

           20.  Defendants, by their Attorneys, responded by
 letter, dated January 8, 1988, to Plaintiff's Attorney denying
 infringement.  A true copy of Defendants' Attorneys' letter
 is attached hereto as Plaintiff's Exhibit 9.

           21.  At all times here relevant Defendants were
 aware of Plaintiff's copyrights in the ARC programs.

           22.  Notwithstanding knowledge of Plaintiff's
 copyrights and specific notice of infringement, Defendants
 have continued to infringe Plaintiff's copyrights.

           23.  Defendants did willfully and deliberately
 copy Plaintiff's ARC programs and infringe Plaintiff's copy-
 rights.

             COUNT II:  VIOLATIONS OF THE LANHAM ACT

           24.  Plaintiff repeats and realleges the averments
 and allegations contained in numbered paragraphs hereinabove
 as though fully set forth here.

           25.  Plaintiff has extensively used and promoted
 intrastate and interstate commerce the trademark "ARC" in
 connection with computer programs and software.  Exemplary
 uses of Plaintiff's ARC trademark is shown in Exhibits 1 and
 3.  Plaintiff has continuously used its ARC trademark on its
 goods shipped throughout the United States and the world.
 The ARC trademark has come to be recognized as identifying
 Plaintiff as the source of its products and symbolizes
 valuable goodwill belonging to Plaintiff.  Such recognition
 and goodwill arose and accrued prior to the acts complained
 of herein.

           26.  Due the very high level of originality and
 quality of Plaintiff's File Archive Utility programs, and
 their distribution methods and marketing, Plaintiff and its
 ARC programs have become recognized as the "standard" in
 the personal computer industry.  An example of such recognition
 is hereto attached as Plaintiff's Exhibit 11.

           27.  Plaintiff has expended significant time and
 money in promoting and advertising its File Archive Utility
 ARC programs, and the trademark ARC has become associated
 with Plaintiff as denoting the source or origin of high
 quality File Archive Utility programs.  In the personal
 computer market and to the users of such computers, the mark
 ARC denotes Plaintiff as the source or origin of such
 programs.  In this regard, an article from Dr. Dobbs Journal,
 March 1987, pp 26-28, 30 is hereto attached as Plaintiff's
 Exhibit 12.

           28.  Defendants do not have, nor have ever had, any
 right or authorization to use Plaintiff's ARC trademark.

           29.  Defendants have prominently used and are using
 marks confusingly similar to Plaintiff's ARC trademark, to
 wit, PKARC and PKXARC.  The infringing marks are shown as
 used by Defendant in Plaintiff's Exhibits 5, 6 and 13.

           30.  Defendants have used and continue to use the
 marks PKARC and PKXARC in connection with goods functionally
 identical to Plaintiff's, in commerce and in the same channels
 of trade as Plaintiff's ARC programs.  Defendants use such
 marks on, and in connection with publishing, distributing,
 advertising and marketing throughout the United States, and
 in this district, File Archive Utility programs.

           31.  Defendants unauthorized use of PKARC and
 PKXARC is likely to cause confusion, or to cause mistake
 or to deceive prospective acquirers of such goods into
 believing that the products of Defendants originated with or
 under the sponsorship or license of Plaintiff.

           32.  Defendants, by improper use of Plaintiff's
 trademark ARC, have falsely described or represented the
 Defendants' PKARC and PKXARC programs as the goods of
 Plaintiff and have, by causing such products to enter into
 commerce, created a tendency for such false description or
 representation to be understood as having an origin or
 sponsorship or license of Plaintiff, thereby diverting income
 from Plaintiff to Defendants.  Plaintiff has been, is being
 and is likely to be damaged by the use by Defendants of the
 aforesaid false description or representation.

           33.  Defendant acts are in violation of Section
 43(a) of the Lanham Act, 15 USC 1125(a).

           34.  At all times relevant hereto, Defendants were
 aware of Plaintiff's use of the ARC trademark.

           35.  Upon information and belief, Defendants adopted
 the PKARC and PKXARC marks to portray to potential consumers
 a relationship between Defendant's products and Plaintiff's
 products.

           36.  Upon information and belief, all Defendant's
 acts complained of herein were done with the intent to cause
 confusion among customers as to an affiliation between
 Defendants and Plaintiff and to capitalize improperly on the
 goodwill accruing to Plaintiff.

      COUNT III:  TRADEMARK INFRINGEMENT; UNFAIR COMPETITION

           37.  Plaintiff repeats and realleges the averments
 and allegations contained in the numbered paragraphs herein
 above as though fully set forth here.

           38.  Defendants are, by the acts complained of
 herein, infringing on Plaintiff's trademark rights, and
 engaging in unfair trade practices and unfair competition,
 all in violation of the common law of the State of Wisconsin.

     COUNT IV:  COPYRIGHT INFRINGEMENT AND UNFAIR COMPETITION

           39.  Plaintiff repeats and realleges the averments
 and allegations contained in numbered paragraphs hereinabove
 as though fully set forth here.

           40.  Defendants have, in addition to the acts as
 alleged above, substantially copied and plagiarized the entire
 appearance and user interface and screens which result when
 a computer user interacts with or uses Plaintiff's ARC
 programs and the manner in which the Plaintiff's ARC programs
 interface with and interact with the computer user, with the
 specific intent to create a belief with the consumer of a
 relationship between Defendants' products and Plaintiff's
 products.  (A copy of Defendants' advertising, PKWARE, INC.
 advertisement, PC TECH JOURNAL, October 1987, p 220, is
 hereto attached as Plaintiff's Exhibit 14.)

           41.  Defendants' acts as heretofore alleged
 constitute infringement of Plaintiff's Copyrights and unfair
 trade practices and unfair competition to the irreparable
 damage of Plaintiff.

           42.  Defendants' acts, as alleged herein and above,
 have been willful and deliberate intending to harm and damage
 Plaintiff and its business.

         WHEREFORE PLAINTIFF DEMANDS JUDGMENT AS FOLLOWS:

           (1)  Enjoining Defendants, jointly and severally,
 and any of their agents, servants or any in active concert
 or participation with any of them, temporarily during the
 pendency of this action and thereafter permanently from
 infringing Plaintiff's copyrights in any manner, and from
 publishing, licensing, selling, distributing or marketing or
 otherwise disposing of any copies of Defendants' works PKARC
 and PKXARC; and from infringing in any manner Plaintiff's
 trademark ARC;

           (2)  Ordering the Defendants, jointly and severally,
 to pay Plaintiff such damages as Plaintiff has sustained in
 consequence of Defendants' acts of infringement of Plaintiff's
 copyrights, trademark and the unfair trade practices and
 unfair competition and to account for:

              (a)  all gains, profits and advantages derived
    by Defendants and each of them by said trade practices
    and unfair competition; and

              (b)  all gains, profits and advantages derived
    by Defendants and each of them by infringement of
    Plaintiff's copyrights or such damages as to the Court
    shall appear proper within the provisions of the Copyright
    Act of 1976, but not less than the statutory minimums
    therein provided; and

              (c)  all gains, profits and advantages derived
    by Defendants and each of them by infringement of
    Plaintiff's trademark or such damages as to the Court
    shall appear proper within the provisions of the Lanham
    Act;

           (3) Trebling Plaintiff's damages and awarding any
 statutory damages at the highest level allowed;

           (4)  Ordering Defendants to deliver up to be
 impounded during the pendency of this action all copies of
 said works entitled PKARC and PKXARC in the possession
 or control of Defendants or either of them or any of their
 employees, agents, servants, distributors or licensees and
 to deliver up for destruction all copies of any infringing
 work, as well as all computer media, diskettes, documentation
 and any means for making such infringing copies;

           (5)  Awarding Plaintiff the costs of this action
 and reasonable attorneys' fees against Defendant;

           (6)  For such other and further relief as is just.


                  PLAINTIFF'S VERIFICATION:

         Thom L. Henderson understanding that willful false
    statements and the like so made are punishable by fine or
    imprisonment, or both, under Section 1001 of Title 18 of
    the United States Code, declares and affirms:

         That he is President of Plaintiff corporation and is
    authorized to execute this instrument on behalf of said
    corporation; that he has read and understands the matters
    alleged in the Plaintiff's Complaint; and

         That the facts and statements set forth in said
    Complaint are, to the best of his knowledge, true; and
    all statements made on information and belief are believed
    to be true.

               Verified and Dated the 2___ day of April, 1988.

                               _____________________________
                               Thom L. Henderson

                                Attorneys for Plaintiff
                               SYSTEM ENHANCEMENT ASSOCIATES, INC.
                                       FOLEY & LARDNER

                                By: ______________________________
                                      Michael A. Lechter, Esq.
                                      777 E. Wisconsin Avenue
                                      Milwaukee, WI 53202
                                      (414) 289-3599

 THOMAS M. MARSHALL, ESQ.
 Powder Mill Village
 89 Patriots Road
 Morris Plains, NJ 07950
 (201) 993-5779


          INDEX TO PLAINTIFF' EXHIBITS HERETO ATTACHED

  Complaint   Plaintiff's    Description
 Paragraph   Exhibit
 Reference   Number

  Para. 17, 25  1   "ARC File Archive Utility Version 5.20"
  Para. 17      2   Copyright Registration Certificate
                    dated February 16, 1988; TX2-242-311
  Para. 17, 25  3   "ARC File Archive Utility Version 5.21"
  Para. 17      4   Copyright Registration Certificate
                    dated March 30, 1988; TX2-264-701
  Para. 18, 29  5   "PKARC FAST! Archive Create/Update
                    Utility Version 3.5 04-27-87",
                    documentation
  Para. 18, 29  6   "PKXARC FAST! Archive Extract Utility
                    Version 3.5 04-27-87", documentation
  Para. 19      7   Notice Letter of December 23, 1987
                    addressed to "Phil Katz, PKWARE, INC."
  Para. 19      8   US Postal; Service Return Receipt, dated
                    December 28, 1987, signed by "H. Katz"
  Para. 20      9   Attorney Harry Lensky's response letter
                    dated January 8, 1988
  Para. 15     10   Advertisements of Plaintiff and
                    Defendants appearing on the same page in
                    PC TECH JOURNAL, April 1988, p 184
  Para. 26     11   Reprint of Review Article, PC WEEK March
                    4, 1986
  Para. 27     12   Dr. Dobbs Journal Article "ARC Wars",
                    March 1987, pp 26-28, 30
  Para. 29     13   Defendants PKWARE, INC. and Phillip W.
                    Katz Letter postmarked April 19, 1988,
                    and its attachments
  Para. 40     14   Defendant PKWARE, INC. advertisement in
                    PC TECH JOURNAL, October 1987, p 220

 ----cut here--------cut here--------cut here--------cut here----

   -- Bob Freed      INET: [email protected]
                     UUCP: sun!portal!cup.portal.com!robert_a_freed
----------
Category 11,  Topic 9
Message 2         Sat Jul 09, 1988
HOMCHICK [Paul]              at 21:31 EDT
 
 Article 13518 of comp.sys.ibm.pc:
 From: [email protected] (Tom Neff)
 Subject: This damn Katz/SEA/ARC thing
 Summary: use Vernware instead
 Date: 5 Jul 88 19:46:27 GMT

The following is my own personal opinion, long and strongly held, pure and
simple.  Take it for what it's worth.

I don't know exactly why SEA sued Phil Katz and I don't care.  PKARC has never
had a place on my software shelf and it never will.  I keep four files handy:
ARC.EXE, ARCE.COM, ARCA.COM and ARCV.COM.  ARC.EXE, by SEAware, is the
standard.  I don't use it normally but I keep it around for verification in
case there's a problem with a particular archive's format or contents.  If
ARC.EXE won't read it, it doesn't get posted anywhere I control.

The only problem with ARC.EXE it that it's slow, thanks to the porcine
Computer Innovations C86 runtime library.  For high speed performance, I turn
to three superb, tiny support utilities from Vern Buerg and Wayne Chin.  ARCV
displays archive directories, ARCE extracts files (to disk or stdout) and ARCA
builds new archives from component files (with optional delete afterwards). 
They are all small enough to put in a command cache RAMdisk if you want; they
run ultrafast, reliably, and they never waste your time begging for money or
trumpeting their virtues in big banners.  ARCE, in particular, is ideal for
handing out to people with ARC files you distribute -- it's small, the syntax
is self evident, and it does just what you want.  Plus there's no embarrassing
panhandling for someone else's bank account to spoil the moment. :-)

Basically I have never felt that the archiver niche (it doesn't deserve to be
called a "market") has needed a shareware clone.  The grapevine word for years
was that Katz asked to see some ASM source in a "friendly" way, then dropped
out of sight and emerged in a couple of months with a beg-ware lookalike. 
PKARC has been so assiduously hyped over the past two years that the average
user these days has never heard of ARC.EXE itself, let alone the optimized
Buerg/Chin companion programs.  It's a damn shame.  Of course, the whole
"squash" incompatibility fiasco was just icing on this particular cake.  I
haven't got a clue as to whether there is any merit to SEA's case per se, but
nothing can make Katz a hero.  Use the freeware programs and pass them on. 
That's my advice.

PS Vern's ARCE reads squashed archives OK as of version 3.1b, released last
year.  If anyone would like a copy let me know, although I suspect I'll be
posting it to c.b.i.pc soon anyway.

Tom Neff
----------
Category 11,  Topic 9
Message 3         Sat Jul 09, 1988
HOMCHICK [Paul]              at 21:35 EDT
 
 Article 13524 of comp.sys.ibm.pc:
 From: [email protected] (William E. Davidsen Jr)
 Subject: Lawsuit info
 Keywords: SEAware, PKARC, ARC
 Date: 5 Jul 88 19:53:08 GMT
 Organization: GE Corp. R & D, Schenectady,NY

I saw this in the FIDO news, and since it gives some hard facts about the case
I included it here by permission.  Please don't send me mail about it, I'm not
the author and this is not my opinion, it seems to be some facts, which will
not discourage the people who would rather make up their own

If anyone cares what I think, I have put a short comment at the end of the
quote. 

================ from FIDO news ================

FidoNews 5-27 Page 13 4 Jul 1988

SEA vs PKWare -- What's It About?  by Ben Baker -- 44/76

I suppose most of you know by now know that System Enhancement Associates
(SEA) is suing Phil Katz and PKWare.  There has bee a lot of comment (I
hesitate to call it discussion) on the suit in conferences in FidoNet and the
commercial services.  Most of what I have read gave me the impression that the
writer thought about it for at least 30 milliseconds, then flamed!  So what's
it really about? 

First, a little history.  In CP/M days, there were a number of utilities for
compressing and decompressing files, based on the Huffman coding technique. 
The most popular were called SQ and USQ, but there were several variations. 
There was at least one utility called LIB, which did not do compression
(remember the total memory space was only 64K, and CP/M used at least 4K of
that), but it did collect files, "squeezed" or otherwise, into a single file
so that they could be treated as a unit. 

When MS-DOS came along, many of the old CP/M utilities were ported.  Among
them were several (often incompatible) variations of SQ/USQ.  Our own Tom
Jennings ported LIB to DOS.  DOS BBS operators then had all the functionality
they had in CP/M; they could compress files, and they could pack them into
"library" files, in separate steps of course.  But DOS wasn't memory poor like
CP/M.  The climate was right for something "new." Enter Thom Henderson. 

Henderson, one of SEA's principals, borrowing from concepts developed by Brian
Kernigan, wrote a "library" utility which overcame a limitation of LIB by
using a distributed directory instead of a fixed-length directory at the front
of the file.  It also had built-in Huffman code compression, eliminating the
need for SQ/USQ.  He called it ARC.  Almost overnight, it became a standard
among bulletin board operators. 

As ARC developed, it acquired a number of useful features, encryption and LZ
compression, for example, stirring interest in the commercial marketplace. 
Thus ARC became one of those products marketed both commercially and as
shareware. 

In an effort to encourage porting ARC to other systems such as Unix, SEA made
the sources for ARC available for download on its bulletin board.  These files
bear the SEA copyright notice, and before people may legally do anything with
them other than study them, they need SEA's permission. When someone asks
permission to port, it is granted with three restrictions on the resulting
program: it may not be sold, it may not be used commercially and a copy must
be submitted to SEA for redistribution (under the same restrictions).  Someone
may also use the sources in a commercial product, but in this case, a source
license fee is charged and the resulting program may NOT be a general purpose
file-archiving utility. 

FidoNews 5-27 Page 14 4 Jul 1988

A short time later PKXARC appeared on the scene, followed quickly by PKARC. 
Katz hadn't followed the rules, but then, ARC wasn't making anybody rich as
shareware, and Katz wasn't addressing the much more lucrative commercial
market SEA had developed for ARC, so SEA overlooked it.  Then, last year, an
ad for PKARC and PKXARC appeared in "PC Tech Journal" on the page facing SEA's
ad for ARC.  Katz' ad priced the product a dollar and a half less than ARC,
and even went so far as to make comparisons to "the other archive utility."

SEA then sent a "cease and desist" letter to PKWare, proposing the following
agreement: PKWare would withdraw all commercial advertising and cease attempts
at commercial distribution, and SEA would forgive past violations and grant
PKWare an unlimited cost-free license to market its derivative products as
shareware with a non-commercial restriction.  Katz refused. 

I suspect, though I don't know, that there were additional exchanges between
SEA and PKWare.  Were it me, I would have demanded a source license fee and
royalties on sales to date.  In any event, no agreement was reached, so SEA
filed suit. 

As I understand it, there are four counts in the complaint (not necessarily in
this order): 1) "look-and-feel" violation, 2) copyright violation, 3)
trademark violation, and 4) unfair trade practice.  Let's look at them one at
a time. 

I placed "look-and-feel" first because it's fairly easy to dismiss.  I
personally don't think SEA has a prayer on this one.  "Look-and-feel" is  the
current  legal buzz-word  so SEA's lawyer tossed it in, but I can't imagine it
applying in this case. 

A concept or idea cannot be copyrighted, but the expression of a concept or
idea sure can, and a program is the expression of one or more concepts or
ideas.  If the development of PKXARC and PKARC were entirely independent of
ARC, merely employing the concepts used there, then the second count cannot be
sustained.  If it can be shown that Katz obtained or had access to the sources
for ARC, then he probably infringed on SEA's copyright.  If it can be shown
that he actually used them in developing his programs, then he IS guilty of
copyright infringement.  Even if he translated them to assembly language, he
violated the copyright.  Translating a novel from English to German without
the permission of the author and/or publisher is prohibited by copyright laws
world-wide.  Same principle. 

Is ARC a trademark?  As relating to archiving or compression utilities, you
bet.  Does the name "PKARC" violate that trademark?  Suppose I developed a new
soft drink and began marketing it under the name "BBCOKE." How quickly would I
find myself in court?  And isn't there a network developer using the name
"ARC," and are they in jeopardy?  No!  If I were a fuel dealer, I could sell
all the "Coke" (a coal derivative) I wanted and the Coca Cola Co.  couldn't
care less.  This one will be tough for Katz to beat. 

FidoNews 5-27 Page 15 4 Jul 1988

Why is a trademark important, anyway?  A company spends considerable effort,
not to mention money, establishing a trademark.  I mentioned Coke in the
previous paragraph.  Did anyone have any doubt what company I was referring
to?  This is called "product recognition" and it is an extremely valuable
asset.  SEA has it with "ARC," but that didn't just happen.  They worked at
it.  My "BBCOKE" would be trading on product recognition it didn't earn on its
own.  If I then sought out advertisements for Coca Cola, and placed ads of my
own, claiming (whether right or not) "BBCOKE is better than the other cola"
next to all I could find, would I be engaging in fair trade?  Do you think I
could argue that I was not trying to deliberately undermine the effect of
their advertising and take advantage of their recognition?  Do you suppose
that Coca Cola would give me the courtesy of a letter before they fell on me
like a ton of bricks?  If any of the first three counts can be sustained, then
the fourth probably should be also. 

A recent "PC Week" article has caused considerable comment on this issue.  One
mentioned a "fact" cited in the article that PKWare was a four-employee
company operating out of Katz' home, and implied this was a Goliath attacking
a David.  The "facts" may or may not be true.  The article was so badly
written and so poorly researched as to call into question all of its "facts."
The fact is that SEA is a four-employee (counting the principals) company. 
The Wayne (not Fort Wayne) NJ corporate address is Andy Foray's home.  These
are TWO small companies.  Neither has the resources to pursue a protracted
legal battle.  I think we can expect a reasonably quick resolution. 

So how does it all affect you?  Will you still be allowed to use a Unix port
of ARC?  Of course.  Most ports have been made with permission, and even those
which have not are not encroaching on SEA's commercial market.  Will you still
be able to use PKARC or PKXARC copies you obtained through shareware?  You did
so in good faith and SEA has neither the resources nor the inclination to
search you out and persecute you.  In fact, should Katz lose the suit, he
might still be granted a license to market his programs as shareware.  For
that, we'll have to await the final resolution.  SEA is NOT being vindictive. 
They are trying to protect what they regard as a valuable commercial asset. 

If you are a shareware software developer, as I am, it may affect you in a
different way.  The lawyers have been telling us for several years that the
copyright laws do in fact protect products marketed as "shareware." But so
far, no court has said so, and the courts of the land are the final arbiters
of the law.  A win for SEA, particularly on the second count above, would
place all, big or small, on notice!  Shareware is NOT public domain!  A win
for Katz, on the other hand, is a signal to shareware authors, and a source of
inexpensive, quality software might well dry up.  If that happened, it would
hurt developers and users alike.  Think about it. 

================ end quote ================

I take issue with one conclusion of the author...  if there is any validity to
any look and feel suit, this is it.  While the zoo and dwc archivers have
different help and directory screens, PKARC seems to have copied those screens
directly from ARC. 

I wonder when one of these programs will switch to 16 bit compression and just
say "if you want to run this get 512k on your box." There are a lot of
programs which need it now, and staying with the restrictions of the original
256k PC is pretty pointless. 

bill davidsen
----------
Category 11,  Topic 9
Message 4         Sat Jul 09, 1988
MDEVORE [Michael]            at 21:00 CDT
 
Tom Neff lives!  I don't know who is harder to get ahold of, him or Rahul. 
They both dropped out of sight at the same time and both have resisted any of
my efforts to contact them.  You don't suppose do you...?  No, couldn't be. 
Still, has anyone seen Tom and Rahul in the same room?  I think they might be
the same person.

As to SEA and PKWARE, I say let them both rot in a pit -- a fate they fully
deserve.  PKWARE for various activities already outlined.  SEA for not
upgrading a piece of software to keep up with the times.  Its glacial slowness
stopped being excusable a couple of years ago.  SEA has effectively abandoned
their users (an argument that has been advanced by some as a possible legal
point in favor of PK).  Further, Mr Henderson has proved to be unmatchable in
his rudeness towards people trying to port ARC to OS/2.  Now, he brings
another stupid look-and-feel lawsuit into the computer arena, as if we didn't
have way too many already.

No sympathy here for either.  I am quickly moving towards being a ZOO convert,
but unfortunately realities are realities and I must continue uploading and
downloading .ARC files if I want to access very many files, or want my files
to be accessed very much.  Too bad.  Let's hope we can look forward to a
future of ZOO soon.

----------
Category 11,  Topic 9
Message 5         Sat Jul 09, 1988
BH01                         at 23:28 EDT
 
I notice that my article in Dr. Dobbs is included in the Exhibits, as I
suppose it should. -russ
----------
Category 11,  Topic 9
Message 6         Sun Jul 10, 1988
J.JIMENEZ                    at 01:47 EDT
 
Mike, you have no idea what you are talking about, as you obviously do not
know Thom. I do, personally. Thom is NOT a vindictive person, and he certainly
has not "abandoned" his users. "Glacial slowness"? Thom has upgraded ARC
regularly over the last four years, and he IS extremely responsive to
suggestions and bug reports. If you have a specific feature you would like to
see added to ARC, I suggest you write a letter and tell him so. I can
guarantee that you will receive an answer.

I'm going to speak about most of the points here.

1) ARC being slow - ARC is slow because the techniques ARC uses to access
files are GUARANTEED to be compatible with 99% of MS- and PC-DOS machines.
Last I heard, ARC is developed entirely on a PC/XT machine, not due to
masochism, but to ensure that it is as compatible as possible across the
board. Thom and Andy are probably doing compiles and editing on a 386 machine
now, but I KNOW that ARC is still tested on XT machines as the final go-ahead
test.

2) The suit - If Thom decided to file suite against PKWARE, it's because he
has exhausted every other means of trying to protect what he feels are his
rights. Thom happens to be a very modest and private person. He does not like
to be in the limelight, though he enjoys interacting with people through
electronic means, and he is a VERY good moderator and general organizer. A lot
of what FidoNet is and isn't today is a result of a lot of hard work from
Thom's part. If he finally decided to file suit, it's because he got tired of
trying to reason with Phil. I'm not surprised. Squash mode is, in my opinion,
a good example of what kind of person Mr. Katz must be.

3) Source code - I feel Thom did not do the right thing by releasing the
source to ARC to the general public. It was a virtual invitation for something
like this to happen. However, the source is well- marked as a copyrighted
work, and anyone that tells me that PKARC did not come from ARC's source has
no idea what they are talking about. I agree with Ben Baker (whom I also know
personally) that the look-and-feel issue is a moot one, it's just a catchy
phrase that computer law lawyers like to use know. ARC's user interface is so
generically text oriented that I don't think there's much there that Thom can
claim rights to. However, everything else in the suit make a heck of a lot of
sense to me.

4) Clones of ARC - One of the reasons that I suspect Thom had in mind when he
released the source to ARC is to deal with the many people who were asking SEA
to port ARC to other machines. Rather than expend a ton of work for machines
Thom and Andy had no experience with, they released the source and gave people
opportunities to make "clones" of the standard for other machines under VERY
explicit and clear-cut conditions. I think this is an excellent example of the
kind of person Thom is.

5) ARC performance revisited - ARC gives users a very easy way to speed up the
program tenfold or more. You set an environment variable, ARCTEMP I believe,
to whatever disk drive you want ARC to use for temp files it creates. You can
also specify a path. Simple, set ARCTMP to a ram disk, and it easily matches
PKARC in performance. This is in the documentation, I find it hard to believe
that not many people are aware of this.

6) As it relates to ZOO - I think ZOO is an excellent program and a viable
alternative to ARC. Many BBS' and other systems use ZOO exclusively. When I
first saw Zoo, I converted all 1000+ files on my old BBS in California to ZOO.
Unfortunately, I lost all my files to a magnetic scan machine at an airport,
and eventually converted back to ARC. I don't think this suit has anything to
do with Zoo.

7) Impact on Shareware - I hope Thom wins his suit. Any shareware developers
reading this cannot help but think how good it will be for all of us to
finally get some recognition from the courts for our work. Our software might
actually get some badly-needed legal recognition and protection.

I welcome any comments and rebuttals.

Juan
----------
Category 11,  Topic 9
Message 7         Sat Jul 09, 1988
B.K.BARRETT                  at 23:01 PDT
 
 I disagree. I think Phil took the ARC idea to its logical conclusion, and it
deserves to live. PKARC is faster, cleaner, and in my opinion a far superior
product. If Thom couldn't go that extra step that Phil took, he shouldn't go
crying to the courts.
----------
Category 11,  Topic 9
Message 8         Sun Jul 10, 1988
MDEVORE [Michael]            at 01:31 CDT
 
Juan, I have *every* idea about what I am talking about.  I know people who
know and have dealt with Mr. Henderson.  I also like to point out that I don't
have to agree with you to know what I'm talking about.  (Yeah, I'm mad, but
I'll get over it).

Thom HAS absolutely 100% been quoted as saying extremely rude things to one
person who was interested in a port of ARC to OS/2.  Several other foolish
remarks were made at the time too.

I can't believe that you think ARC has been supported in the slightest.  ALL
of his idiotic so-called "upgrades" were minor for the past many months.  The
man obviously has *NO* idea of how to make a program competitive.  The world
has been crying for a better version of ARC for a long time.  PK did it. 
Build a better mousetrap....

Market tells all.  PKARC is already replacing ARC in most BBS's as the
preferred way to go.  You can rail all you want about ARC really being pretty
fast if you do this, that, or the other thing and it being well-supported. 
Fact is, the people have chosen:  for greatly superior performance.  Just ask
about anyone who use PKARC why.

Surprise, ZOO is 100% compatible with MS-DOS generic machines too.  And guess
what?  It's about 5x faster too.  Thom certainly can't hide behind
compatibility as some poor excuse for slowness.  ARC is slow because either 1)
he used a very very poor language to write it in, or 2) he can't program very
well. I'll be kind and assume #1.  That still means that Mr. Henderson has no
concept of what a modern language can do and is completely out of touch with
what tools a professional should be using.  Still kind of makes him
incompetent in one way or another.

I've heard that a lot of Fido people are quite displeased with Mr. Henderson
as well.  Since that's a third-party comment, I can't really say whether it's
true or not.  But the comment was publicly made by someone who generally knows
what he is talking about.  Maybe someone else can give the scoop.  Yes, I know
that you're a Fido person.  However, you don't represent all Fido people.

I'll will in no fashion defend Phil Katz.  I think, well, I won't say what I
think since it could lead to a libel suit if he ever saw my opinion.  Suffice
to say that I'll *NEVER* support PK, or his wares.  Enough has been said here
about the sordid history of PKARC.  I'd support Thom over Phil if it came to
that, god forbid.  Maybe that'll make you fractionally happier.

I think this lawsuit has everything to do with ZOO.  Hopefully enough people
will be sick enough of the two parties that they'll abandon ARC all together
and move towards the future. ZOO's expansion capabilities provide a future. 
ARC's doesn't. One can only hope that this lawsuit will provide the impetus.

I hope that both parties drag on in this lawsuit soooo long that they go
bankrupt.  Serve them both right.  I can actually see some good coming from
this lawsuit if that happens.

If Thom wins his suit, basically what will occur is that shareware authors
will be more legally protected from their own incompetence.  If Phil wins the
suit, shareware authors will be more legally open to predation of their works.
Lose-lose. Please, powers-that-be if you're listening, let this suit take a
loooong time to resolve.

----------
Category 11,  Topic 9
Message 9         Sun Jul 10, 1988
STROM [Charlie]              at 08:09 EDT
 
First a couple of minor historical corrections - the first library utility was
written by our own Gary Novosielski for CP/M. It was called LU, not LIB. Paul
Homchick first ported LU over to a 16-bit processor, running CP/M-86 (actually
MP/M-86).

Now, on to a strange conclusion I have seen in a couple of the previous
messages - it was stated that the fact that SEA didn't "enhance" or "actively
support" ARC by more frequent and more radical upgades, by supporting more
efficient compression schemes, speeding up the program, etc. is somehow a
justification for someone else to steal his work. No way! This argument is  
absurd both legally and ethically. When one offers software for sale, where
does it say one must be chained to it forever more in terms of active
development? I am not saying that I necessarily favor such action, but it is
in no way an excuse to circumvent someone and try to take his intellectual
property away.
----------
Category 11,  Topic 9
Message 10        Sun Jul 10, 1988
HOMCHICK [Paul]              at 09:08 EDT
 
Small correction on historical note...  someone reverse enginered LU for unix
and wrote a C program named lar (Library ARchive).  lar then was taken up by a
variety of folks including Tom Jennings and myself and was ported to the 16-
bit micro environment.  My port "LU86" was for a short time the "standard" for
ms-dos computers, and was the first LU program to support time and date
stamping of member files.

As to the matter at hand, I'll leave commentary on this fracus to others. Just
to give folks some idea of where I stand, tho: I use zoo exclusively for my
personal and business archiving, and use Vern Buerg's programs when I have to
use an ARC file.  When Phil Katz improved upon ARC by adopting his own SQUASH
method, it would have been far preferable if he had adopted his own PKA or PKX
format instead of riding on the coattails of SEA ARC, and appropriating their
market and format.

This all revolves around the concept of an ARC, and whether or not it is a
unique, copyrightable entitiy.  There were no ARC files before Thom Henderson
wrote ARC.EXE, he clearly invented same.  He copyrighted his work, and set
about trying to make money from it.  Then Phil Katz wrote a program that did
the same thing and started competing in the same markets with SEA/Henderson. 
Not only did he appropriate "ARC", he made his program slightly different with
SQUASHING, so that SEA's program no longer worked on the formate SEA had
invented, copyrighted, and marketed.  To me, this is 1) theft of intellectual
property, and 2) unfair competetition to boot.

Oops!  I guess I got carried away and let you know how I feel about this. 
Phil Katz is a great programmer, and PKware is good stuff.  If PKARC hadn't
gone around masquerading as ARC when it wasn't, and had been presented as a
new, improved, alternative, then I might be using it and there would be no
suit.  But that is not what happened.  Moral: make certain that the coattails
you ride on do not require a fare!
----------
Category 11,  Topic 9
Message 11        Sun Jul 10, 1988
MDEVORE [Michael]            at 11:29 CDT
 
Careful with that "justification for someone else to steal his work." phrase
Charlie.  I think the way PK did it was slimy, but fact is, algorithms can
*NOT* be copyrighted.  IMPLEMENTATIONS of algorithms can.

Further, the compression techniques Thom uses are generally considered public
domain.  Several programs legally use one or more types.  There may be a
technique he came up on his own, I dunno.  Certainly he didn't come up with
all of them.  The LZW compression algorithm is one example.

You may or may not be able to say that Mr. Katz stole Mr. Henderson's
implementation of the algorithms used.  You can not say that Mr. Katz stole
Mr. Henderson's algorithms.  Such an argument is, shall we say, "absurd both
legally and ethically".

----------
Category 11,  Topic 9
Message 12        Sun Jul 10, 1988
HOMCHICK [Paul]              at 12:55 EDT
 
There is a legal distinction here between patent and copyright, which I am not
certain that we are taking into account.  However, there is also a moral
argument which goes: Thom Henderson invented the ARC format and sold it
commercially.  A competitor appropriated that format and name and also began
commercial sales which hurt the inventor and "owner" of ARC.  That is either
right or wrong.  Take your pick.
----------
Category 11,  Topic 9
Message 13        Sun Jul 10, 1988
J.JIMENEZ                    at 13:54 EDT
 
Mike, PK did NOT build a better mousetrap. He copied an old mouse trap and but
a bigger spring on it. Note that there has never been any other documentation
on the ARC file formats other than the source code which SEA released. This in
itself may not be proof that PK copied the algorithm, but if he didn't he was
very stupid to make his program so compatible with ARC, if in fact it was
developed independently.

The Fido issue has nothing to do with this, but I was involved with Fido for a
long time while it was experiencing growing pains. The reason some people
"don't like" Thom is because a lot of the ideas he had for Fido and the net
were geared towards better organization and a centralized control over the
net, which makes a lot of sense. Right now there are a number of independent
nets, and it's a mess. I don't intend to represent all the Fido people, but I
do have a very clear picture of the story behind Fido because I was part of
it.

Note also that at no time did SEA or Thom say that no one could make a clone
of ARC. The fact is, he has every right to say such a thing. However, he chose
not to. He released copyrighted code to the public to promote clones, under
very specific conditions. PKWare broke the rules, period.

BTW, if market tells all, how come I have heard so many people complain about
PK's "new" compression formats, etc. for the last year or so? The statement
that most BBS' have converted to PK is quite innacurate. Most BBS' do make PK
available and do support squashed files, but in essence the vast majority of
those files are still using the original ARC formats.

You really think that shareware authors are basically incompetent? Do you
include yourself among that group, or are you above that. How would you like
to see people copy your OVL program and sell it as PKOVL, using your ideas to
make money for themselves by just making it a little faster? Would you do
something about that to protect your rights?

ARC was developed in C, a language which you personally have said is the
language of choice. ARC is slow, but it is also portable. Proof of this is
that there are Unix, CP/M, Amiga, Mac and all kinds of other weird ports of
ARC running around. No such luck for PKARC. PK has tried to do something about
this by publishing the PK squash file and archive formats, which are basically
the same as the ARC formats except for comments and the "squash" algorithm,
but it hasn't helped much. 

I will agree with you that algorithms cannot be copyrighted, but PK has gone
much further than that, by copying the algorithms, the file formats, the
implementation and even the NAME of the program, ARC, down the file extensions
it creates its files with.

I also agree with Paul's statement that if PK had simply come up with a faster
solution, not a faster copy of the solution, he wouldn't be in the trouble he
is now. Notice that SEA did not, and as far as I know has no intention of,
suing Rahul for his ZOO. Nobody has sued SEA for their ARC either, because it
was developed independently with new ideas and concepts, but using public
domain algorithms.

Juan
----------
Category 11,  Topic 9
Message 14        Sun Jul 10, 1988
MDEVORE [Michael]            at 14:25 CDT
 
Excuse me?  Where did I say that shareware authors are basically incompetent? 
I paid hard earned cash for both Qmodem and ProComm.  I consider both of them
better than many commercial packages.  PC-Write, PC-File, Patriquin's
utilities all get high marks in my book.  Closer to home, I've only heard good
things about your own GSETUP.  I support *GOOD* shareware, and *GOOD*
shareware does exist in reasonable quantities.  Incompetent and mediocre
shareware exists in huge quantities, but that's another matter.

Your analogy is faulty.  I didn't release source code to OVL or PROVL.  If
someone else comes up with a better version that doesn't steal executable code
from my program, there isn't a darn thing I can do about it.  If, *IF*, PK did
in fact steal source code from SEA and perform a straight translation, he's
slime and should pay a price.  However, I don't hold Thom blameless in this
affair either, as per my previous messages.

I admit that PK stepped in it when he copied the ARC name, and most especially
the .ARC extension.  Like I said, of the two, PK is higher on my dirt list. 
He should have used a different file extension and supported the .ARC
extension (sans squashing) as well.  He'll prolly get toasted for that
particular decision, if any.

As far as appropriating a format and name and beginning commercial sales which
hurt an inventor and owner, except for the name part, that sounds a lot like
the Lotus lawsuit against Mosaic and Paperback (?) Software.  Look at all the
dBASE III clones.  They use dBASE III's language format, and I guarantee that
the sales of some of the stand-alone dB3 compilers take away sales from A-T. 
There is also Mirror, the Xtalk clone. The list goes on.  Clone software
copies a general format and takes sales away from the original.  Some clones
add enough features that they become the new standard.  Evolution.

Lastly, there is a distasteful argument that I have heard, which unfortunately
does have some validity to it.  PKARC has saved thousands of people thousands
of hours.  PK is even significantly faster than Vern's utilities.  A piece of
software that helps so many people isn't 100% evil.  I seen many testimonials
from PK fanatics around the circuit.  I won't use that argument, but you
should be aware that many do.  The average Joe or Jill doesn't much care about
arcane legalities (s)he doesn't understand.  Outright theft, yes, but PKARC
code has not been proven to be stolen from SEA's source code -- although one
can have some suspicions about the matter.

----------
Category 11,  Topic 9
Message 15        Sun Jul 10, 1988
STROM [Charlie]              at 15:43 EDT
 
Mike, I don't even want to try arguing whether Phil stole anything or not. The
point I was trying to make is that it is wrong to use an argument expressed in
the earlier messages - namely that if a software author does not "support" his
product well enough in the eyes of another, it is then somehow okay for the
other fellow to walk off with his work. This is a red herring.
----------
Category 11,  Topic 9
Message 16        Sun Jul 10, 1988
M.MELLO                      at 16:14 EDT
 
For another opinion:  Personally, I prefer PK because it is faster,  writes a
smaller archive (with "squashing") and interfaces well with many menu driven
"arc" utilities written for it.  The individuals  crying foul because of the
archive's ARC extension should take a look at possible copyright violations
each time they write a "DOC" file for their own shareware releases.  Doesn't
someone own a patent on  a file extension of DOC?  Or WK1, WKS, or WK? ??  Who
cares?
     Additionally, if the programs seem to operate alike, but the  difference
in speed is so dramatic, who is stealing from whom, if  anyone?  If the
program is SO inferior as compared to ARCE and ARCV or the original ARC, then
WHY is it so popular?  In this area, and  most others that I'm aware of,
_________PKARC________ is the standard, NOT ARC.  I think one would do well to
re-evaluate the sample taken  of archive users to see what is really being
used more.
     The programs, when viewed side by side, may perhaps appear to be 
related.  So they are!  If they were really identical, I would be able to
squash my huge DOC files with ARC and unsquash with PKXARC, right?  NO!  So
the code cannot be identical.  Alike, perhaps.  I think if you'll look to see
how some of the code is for many of the PD workalikes,  like AS_EASY_AS and
PC_WRITE, you'll see that there are many ways to  skin a cat, as it were, but
only a few BETTER or BEST ways.  Perhaps  both PK and ARC are both latched on
to the same method?
     I have no sympathy for whining, back biting little programmers who see
their business being taken away by a superior product.  These  types will run
to the courts and present fancy mumbo-jumbo legalese  documents to support
their own shortcomings without being able to  recognize that the only reason
for their distress is that they are getting their buns kicked!  I have always,
and will continue to support and use Phil Katz' products, as they have
demonstrated on MY machine  superior performance compared with older, less
efficient products that  purport to out perform them.  NUF SAID!
----------