Computer Giants Embroiled in Copyright Fight
In a San Francisco courthouse, three giants of the American computer industry are having it out over questions that, boiled down to their essentials, might be expressed as follows: Is a waste basket fundamentally different from a trash can? And if it is, does it matter?
From such questions could flow a ruling that will rechart the evolution of the software that runs the estimated 23 million IBM-compatible personal computers scattered across American desktops, and indirectly, affect patterns of sales of the computers themselves.
Pitting Apple Computer Inc. against Microsoft Corp. and Hewlett-Packard Co., the suit is testing to what extent a company can protect the “look and feel” of a computer program, an increasingly important concern as screen graphics grow more sophisticated in PC software, on which Americans last year spent almost $3 billion.
It is one of several suits inching through U.S. courts to probe, with hair-splitting attention to detail, just how far companies can go in claiming rights to the programs they create. “This is a very painful issue for the industry,” notes Ronald Palenski, general counsel for the software trade group Adapso. In the meantime, the industry is watching with the same fascination as soap opera addicts at a tube.
To return to the question of the trash can and the waste basket:
At the bottom right of the screen of the popular Macintosh PC made by Cupertino, Calif.-based Apple is a tiny image of a familiar household receptacle, labeled “trash.” The Macintosh user who wants to eliminate an unwanted data file from the computer drags it across the screen to the can and performs the electronic equivalent of dropping it in.
At the bottom right of a screen displaying a Hewlett-Packard New Wave program, which is a derivative of a Microsoft program called “Windows,” there is a similar but not identical object, marked “waste basket.” It, too, signifies the place where superfluous files can be given the heave-ho.
Apple claims that its competitors, by mimicking such features as the can, have effectively stolen the very core of what made their company’s product so successful.
The trash can was one of many screen features that enchanted the computer world when the Mac was introduced in 1984. The can was part of what would become the industry’s first mass-marketed “graphical user interface,” a collection of whimsical images and symbols on the screen that users pointed to electronically to operate the computer. It eliminated typed commands that were burdensome and, for many people, intimidating. Suddenly, here was a personal computer that was easy and fun to use.
Apple is not claiming rights to any single element of the program, such as the can, or to the concept of using a graphical interface. Rather, it argues that, taken as a whole, the defendants’ products infringe on Apple’s.
Says Apple attorney Jack E. Brown: “If Microsoft or anyone else wants to have the same success, they should do their own original work and not trade on Apple’s work.”
The suit comes as Lotus Development Corp. of Cambridge, Mass., and Ashton-Tate Corp. of Torrance, which along with Microsoft rank as the Big Three of the PC software industry, have initiated suits that could set precedent in other corners of this field.
Lotus alleges that several companies have copied the keystroke commands and various graphical images of of its popular 1-2-3 spreadsheet programs, which perform financial calculations. Ashton-Tate is trying to assert rights to a computer language it invented for use in databases.
Despite its origins in the computer age, software as a creative medium bears many similarities to novels, poetry, music and other traditional means of expression.
It is produced primarily by individuals rather than groups and cannot be automated; it is a means of recording ideas; handled by the right people, it can convey creative brilliance. Normally, such creativity has been protected by copyright, which by definition deals with expressions of ideas, not ideas themselves.
Under copyright, for example, competing novelists might both write books whose underlying message is the same: that power corrupts the human spirit. Author A, whose book appears first and is read by B, cannot sue B for sounding the same theme. Generally speaking, if B has used substantially different characters, plot, settings, etc., to make the point, there is no infringement.
In a similar way, two software companies may write programs that perform the same task--alphabetizing material on a list, say. The “code,” or lines of instruction that make up a program, is protected by copyright, just as the words of a novel are. They cannot be copied legally. But so long as A alphabetizes using a method that is substantially different from B’s, there is no violation.
These are the principles, and they have been fine-tuned in the courtrooms for years, keeping armies of lawyers in fine food and German automobiles. One recent decision established that the structure, sequence and organization of a computer program is covered by copyright law. Another held that if there is only one logical way to set up a program, displaying the numbers in a spreadsheet in columns, for instance, that way cannot be protected.
“There’s a fuzzy ring of protectability,” said Ken Wasch, executive director of the Software Publishers Assn. “The closer you get to the center, the more certain you are of what’s protected. At the center of that ring is the code itself.”
Now Apple is trying to explore a new area of the ring’s outer reaches.
It is, in fact, round two of a fight between two companies that grew from start-ups into multibillion-dollar operations partly because they cooperated with each other. Many analysts, in fact, credit Microsoft, which is based in Redmond, Wash., with pulling Apple back from financial disaster in the mid-1980s by rushing to write software for the Mac and thereby helping win market acceptance for the Apple computers.
In 1985, Microsoft came out with a graphical interface, calling it Windows 1.0 and selling it for use on machines made by Apple’s competitors. Apple screamed in protest, saying it was a rip-off of the Mac. The two sides soon came to an accord, in which Microsoft agreed to buy a license from Apple.
Later, Microsoft came out with another version, Windows 2.03, and Palo Alto-based Hewlett-Packard licensed it for a related program called New Wave. Apple shouted again, and this time there was no friendly meeting of the minds. Apple sued; the defendants responded that everything they had done was either covered by the 1985 license, drawn from the public domain or a result of their own innovation.
Earlier this month, Judge William W. Schwarzer of U.S. District Court for the Northern District of California ruled that the 1985 license was “not a complete defense” for Microsoft concerning Windows 2.03. Now the major question, license or no license, is whether the defendants infringe on something that Apple could call its own.
Without a settlement, the suit could drag on for years, lowering a shroud of uncertainty over the industry. Many companies may change their development strategy as a result, if they have not already.
“People will be more careful and try to avoid the potential of a lawsuit by keeping away from the look and feel issue,” said John Warnock, president of software developer Adobe Systems Inc. of Mountain View, Calif.
Many people in the software industry see the suit as a evidence that Apple has lost the entrepreneurial spirit that brought it to fame. They point out that Apple did not come up with the graphical interface concept, but rather licensed it from Xerox Corp. Now a $4-billion-a-year giant, Apple has lost its magic, the critics say, and has become committed to the status quo, fielding lawyers to protect market share rather than trying to innovate.
Perhaps the most extreme view in this camp comes from the Cambridge, Mass.-based Free Software Foundation. People there hold that all software, code included, should be available to one and all. Intellectual creations simply cannot be regarded as someone’s personal property, it maintains.
“It’s a concept that harms society,” said Leonard H. Tower Jr., a foundation director. “ . . . Apple’s added almost nothing to that technology (the graphical interface) and essentially has been using the threat of legal force to try to establish a monopoly.”
Apple’s more mainstream critics feel that code and other elements of programs should be protected, but that it is dangerous to make copyright protection too broad. Freedom to borrow and improve on the work of others is crucial to keeping the United States’ creative pot at a boil, they say, and to maintaining the United States’ standing internationally.
“We provide the world with over 80% of its software,” noted Ernest Keet, a partner at merchant bank Vanguard Atlantic Ltd. who has long experience in the software industry.
Strict licensing requirements would deny small companies, where many of the industry’s breakthroughs traditionally have occurred, access to building blocks for their work, Apple’s critics argue. Said Fred Thorlin, director of software industry services at the research company Dataquest Inc.: “The guy in the garage would just be crippled by legal fees in getting all those licenses.”
Apple’s critics also worry that a broad finding in favor of the company could set back efforts toward creating a standard interface for the IBM-compatible world. Users want a standard because it would reduce training costs (different programs would operate essentially in the same way) and facilitate software development. Windows is the closest thing to such a standard now.
An Apple victory could also force changes in a new interface called Presentation Manager that is intended for the next wave of IBM-standard computers.
Apple turns a deaf ear to these arguments. “The whole point of the copyright laws is to stimulate innovation and creativity,” said its attorney, Jack Brown. Copyright and its enforcement gives companies confidence that their investment will be paid back to them. By preventing copying of existing works, other parties are forced to innovate.
“If you impose standards too soon,” he said, “not stimulating them (other developers) to make more creative endeavors, you’re not advancing the art. Did Rembrandt forever freeze creativity in depicting certain scenes? Aren’t we better off because Matisse took a different view?”
As copyright continues to be fine-tuned in the courts, growing numbers of companies are turning toward another legal instrument of protection, the patent. Harder to obtain, the patent is more restrictive, giving holders an effective monopoly for 17 years. Many analysts expect a growing number of lawsuits to be filed in this field.
For now, though, the courtroom attention is on copyrights. Lamented Wasch of the Software Publishers Assn.: “The heady times of product development have taken a back seat for a short time to some intractable legal problems.”
