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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! ----------