gmat@wuibc.UUCP (Gregory Martin Amaya Tormo) (10/05/88)
The following is a copy of the special fido news issue on the
SEA/PKware debate. It includes submissions from the Usenet community, the
BBS community, and a statement by Thom Henderson of SEA. Unfortunately,
there is no statement from Pkware or Phil Katz.
Furthurmore, it is my understanding that the second lawsuit has
been settled and PKware is now out of business, with an injuction against
Phil Katz from releasing any shareware program relating to the archiving of
files. I am most disappointed. Not because I believed PKware was right
and SEA was wrong, but because I honestly liked the PKware programs better
than the SEA ARC programs. With the facts as listed by SEA in this
newsletter, and without any contest of these facts by PKware, I must
conclude that SEA was fully in the right to pursue a legal course of
action. I wish there had been another way because we have all lost from
this mess.
Finally, I beseach the usenet community to heed Dave Dodell's
request for the Fidonet Echomails. Let us stop wasting money and time
debating the issue any further. We must plan for the future. I believe
that all archive sites currently banning SEA archives should end the
protest as it is a mute point based on the now known facts. I encourage
the use of both ARC and ZOO (although I have never used it), and challenge
programmers out there to port the current ARC and ZOO version to unix, and
to take SEA up on their source code policy and use it to create ARC to ZOO
and ZOO to ARC converters (assuming Zoo has the same policy as SEA or would
be willing to licence the code as necessary).
It is also my understanding that in the settlement of the second suit,
SEA assumes ownership of the technical specifications to the PKware program
PKpak. I challenge SEA to upgrade ARC to utilize the features and speed that
endeared me to the PKware programs in the first place. I see no need to
fight for a new standard, nor any reason to abandon the current one.
Rather we must accept the situation that has been thrust onto the shareware
community. What follows is the relevant text of the latest issue of
Fidonews (IFNA specific material deleted).
Volume 5, Number 40 3 October 1988
+---------------------------------------------------------------+
| _ |
| / \ |
| /|oo \ |
| - FidoNews - (_| /_) |
| _`@/_ \ _ |
| International | | \ \\ |
| FidoNet Association | (*) | \ )) |
| Newsletter ______ |__U__| / \// |
| / FIDO \ _//|| _\ / |
| (________) (_/(_|(____/ |
| (jm) |
+---------------------------------------------------------------+
Editor in Chief Dale Lovell
Editor Emeritus: Thom Henderson
Chief Procrastinator Emeritus: Tom Jennings
Contributing Editors: Al Arango
FidoNews is published weekly by the International FidoNet
Association as its official newsletter. You are encouraged to
submit articles for publication in FidoNews. Article submission
standards are contained in the file ARTSPEC.DOC, available from
node 1:1/1.
Copyright 1988 by the International FidoNet Association. All
rights reserved. Duplication and/or distribution permitted for
noncommercial purposes only. For use in other circumstances,
please contact IFNA at (314) 576-4067. IFNA may also be contacted
at PO Box 41143, St. Louis, MO 63141.
Fido and FidoNet are registered trademarks of Tom Jennings of
Fido Software, 164 Shipley Avenue, San Francisco, CA 94107 and
are used with permission.
The contents of the articles contained here are not our
responsibility, nor do we necessarily agree with them.
Everything here is subject to debate. We publish EVERYTHING
received.
Table of Contents
1. EDITORIAL ................................................ 1
SEA & PKWare - Where's the beef? ......................... 1
2. ARTICLES ................................................. 2
My Two Cents Worth on PK vs. SEA ......................... 3
3. COLUMNS .................................................. 8
Let's YACK about The ARC Dilemma ......................... 8
=================================================================
EDITORIAL
=================================================================
SEA & PKWare
Where's the beef?
That's the question that's been bothering everyone recently.
It all started around the beginning of the year when System
Enhancement Associates sued PKWare. From the beginning, I've
supported SEA mainly because I called SEA and talked with Thom
Henderson. Not that many people were willing to do something like
this. Why? I'm not sure, it sure seemed an easy way to get one
person's version of what was going on quickly and easily. Why
didn't I call Phil Katz? Mainly because I knew Thom from FidoCon
'87. I'm not sure how much good it would have done anyway, for
the past two weeks no matter when I call PKWare, I get an
answering machine.
What are my opinions on the two lawsuits between these two
companies? Well, first off my opinions are biased. I consider
Thom a friend and trust him. While I do not consider his words
gospel, I usually accept most of what he says. In this matter, I
believe that SEA was completely correct to sue PKWare.
While I've learned a few new things about copyright law
while looking into these lawsuits that I'm not entirely pleased
with, I am capable of understanding why they exist. While many of
us may not like some parts of copyright law we may discover upon
looking into these cases, it is the law. There are procedures to
follow in order to change these laws, use them if you feel they
are unfair.
Hopefully some of the articles in this issue will help to
convince you over to my way of thinking. If not, so be it. I only
ask that we take these messages out of echomail. They are
accomplishing nothing and succeeding to excessively annoy many of
us. Before you enter a message about the lawsuits again, take the
time and read this edition, call those directly involved, obtain
the documents from the courts, but STOP THE COMPLAINING AND
WHINING!!! Echomail can accomplish so much, why make it
accomplish nothing???
Dale Lovell
3266 Vezber Drive
Seven Hills, OH 44131
data: 216/642-1034
1:157/504 aka 1:1/1
-----------------------------------------------------------------
=================================================================
ARTICLES
=================================================================
[NOTE: Message modified by Tim Pozar on 29 Sep 88 13:24:02]
From hoptoad!cogsci!SIMTEL20.ARMY.MIL!KPETERSEN
From: hoptoad!cogsci!SIMTEL20.ARMY.MIL!W8SDZ (Keith Petersen)
To: hoptoad!ucbvax.Berkeley.EDU!hoptoad!pozar (Tim Pozar)
Date: Wed, 28 Sep 1988 11:35 MDT
[For submission to Fido News special ARC edition]
Both SEA and PKWare are likely to be in hot water soon. All we
want is a PUBLIC DOMAIN archiving system which is immune to this
nonsense! BTW, ZOO isn't it. It has a copyright and restrictions
on distribution.
DATAPOINT has a trademark (and has had it since the '70s) on the
word ARC. As reprinted from a current Datapoint Manual:
"Attached Resource Computer" is a trademark of DATAPOINT
Corporation.
Registered in the US patent and Trademark office.
"ARC" is a trademark of DATAPOINT Corp.
Any recent DATAPOINT document has this copyright/trademark
statement, the document it came from was called "RMS SYSTEM
ADMINISTRATION UTILITIES" DATAPOINT document Number 50928 Dated
September, 1985.
The "RMS Quick Reference Guide" Document No. 61017 contains a
larger copyright notice.
A person who is very involved with DATAPOINT and their ARCNET
configurations said that the Attached Resource Computer is a
combination of hardware and software, and in fact, they have a
software program used with ARCNET called "ARC". He is very
familiar with DATAPOINT, and said that he will be talking to the
legal department at the DATAPOINT headquarters in Texas to inform
them of the lawsuits currently pending between SEA and PKWARE,
and determine if DATAPOINT wants to pursue legal action of
their own.
--Keith Petersen
Arpa: W8SDZ@SIMTEL20.ARMY.MIL
Uucp:
{decwrl,harvard,rutgers,ucbvax,uunet}!simtel20.army.mil!w8sdz
-----------------------------------------------------------------
John Herro
1:363/6
MY TWO CENTS WORTH ON PK VS. SEA
In this controversy, neither side is 100% right, but I hope the
BBS world goes with Phil Katz' new Shareware for several reasons.
PKxARC is much, much faster than ARC. It also compresses some
files more than ARC, because it considers Squashing as one alter-
native. I'm a Shareware author, and I'm using a registered copy
of PKARC to distribute my program ADA-TUTR, the Interactive Ada
Tutor. I understand that the court order allows registered users
of PKxARC to continue to use it indefinitely.
I also understand that Phil Katz was ordered to change the file
extension from .ARC, which he has done. After the first of the
year, however, he can no longer distribute the program. He has
to come up with another file compression algorithm. He expects
to come up with a new algorithm that's superior to ARC. I'm
looking forward to seeing his new program!
Just as ARC has almost completely replaced older schemes like SQZ
and LBR, I hope that Phil's new scheme will completely replace
ARC and become the new BBS standard.
SEA seems to be leaning toward commercial software. The only
reason I won't buy a copy of AXE is that it's commercial and not
Shareware. I'd gladly pay that much to register Shareware. I
think Shareware is an idea whose time has come, and it almost
completely solves the problem of software piracy. Even if SEA
keeps ARC as Shareware for now, who's to say that further im-
provements won't be commercial, as happened to Fido? SEA seems
to be going in that direction. I prefer PK because I think
there's a greater chance that future improvements will remain
Shareware.
If Phil's new algorithm is to become the BBS standard, a lot of
software will have to be updated. Examples are BBS systems that
can "look inside" archives, and "ARCMAIL-like" programs. Soft-
ware authors should plan to update as soon as Phil Katz publishes
his new algorithm. We changed file compression standards before;
we can do it again.
We want the FASTEST and BEST compression to be the standard. The
PK programs have been faster and better than SEA, and I expect
that to continue.
-----------------------------------------------------------------
Thom Henderson, president
System Enhancement Associates
voice: (201) 473-5153
data: (201) 473-1991
Now That It's Over, What Did It Mean?
Now that the dust has settled in the first shareware copyright
case, it is time for SEA to make public the facts that many
members of the shareware community deserve to know.
For the record, SEA is a family owned business. Andy Foray, the
company chairman, and Thom Henderson, the company president, are
brothers-in-law. Irene Henderson, the secretary/treasurer and
office manager, is Andy's sister and Thom's wife.
As the creators, publishers and defenders of the industry
standard ARC file compression format, we have always maintained a
strong belief in a fundamental concept of shareware -- that
shareware be distributed for free for all non-commercial use. To
this end, we have never, and will never, charge for the use of
ARC in a non-commercial environment. We also believe that full
program sources should be available, at least to registered
users, and we have always made the full ARC sources available to
all users. We have also licensed a great many people to use the
ARC sources in their own programs.
We discovered that PKWARE had obtained our source code without
obtaining a license. He modified that code so that the program
ran faster and provided several other enhancements. However, the
nuts and bolts of the program were done by SEA. That is called
PIRACY, plain and simple. And this industry has no place for
pirates.
We tried to politely ask PKWARE to obtain a license. He
ungraciously told us where to go.
We asked our lawyer what we should do. He said we were bound by
law to protect our rights to the trademark and copyrights on ARC.
If we did not, then anyone could use the ARC trademark and
copyrights. It is very much like a candy bar calling itself
Hershey. If another company used the Hershey name without
permission, you can imagine what would happen.
Also, it should be noted that PKWARE did not live up to the high
standards set by the shareware industry. He didn't make his
source code available. He sought out our market and competed
directly for our corporate market by using the funds he had
received from non-commercial users (whom we would not charge!)
He authorized ads with false and misleading comparison statements
to run in the magazines we advertised in. And he placed those
ads on the same pages as our ads. If we did not protect our
investment in the ARC trademark, we would have lost our
trademark, our market and our business. Furthermore, the
industry would have been left in disarray, as two standards would
have emerged.
So after Phil Katz told us he would not settle this case like a
gentleman, we were forced to ask the courts to settle it for us.
We didn't want to go to court. We couldn't afford the lawyers
fees. We couldn't afford the time away from programming the
updated versions of ARC that will work on other systems, such as
Unix, Macintosh, and VM/CMS. And we couldn't afford to create a
controversy in an industry that we helped to pioneer. We also
couldn't afford to create ill will among users -- both our users
and PKWARE users. But PKware left us no choice.
Anyway, the case didn't get very far, thanks to the testimony of
an expert witness, John Navas. He looked at the source code of
both programs and found, lo and behold, that the PKWARE program
was indeed a blatant copy of the SEA code.
When Katz heard this, he called us directly -- bypassing the
attorneys -- and said he wanted to settle.
We were only too happy to put a quick end to this. We wanted the
facts to come out. Unfortunately, Katz demanded that part of the
settlement terms be kept under court seal. We agreed, and we
probably should not have, but we did because we wanted to end the
case quickly so we could get back to updating and improving ARC.
Some of the terms are public: PKWARE cannot distribute the
program after January 1, 1989, they cannot substantially change
the program (though they can make bug fixes) and if they receive
inquiries for the product, they must send out SEA literature.
Also, PKWARE is prohibited from creating a new program that is
compatible with ARC or PKARC.
If those terms sound one-sided, then it only goes to prove the
extent to which PKWARE felt that it had no legitimate right to
its program. After all, why would he give up everything if he
was right? He obviously was not above board in this case, even
though the settlement terms said he was not admitting fault in
any way (a standard legalese ploy).
We are a bit perturbed that one of PKWARE's part-time employees
obtained a copy of the sealed court document, typed it into a
file along with numerous typos and loaded it onto several
bulletin board systems. She also included her own biased,
editorial opinion on the case and its terms. While we don't
believe PKWARE had authorized this action, it obviously violates
the sense of fair play that we have lived with, at Mr. Katz'
request.
Now we are faced with several problems.
The bulletin board community has heard many comments by people
who did not possess the facts of this case, and therefore made
ill informed opinions. Those opinions seemed like fact because we
did not respond to them while the case was in progress.
You are well aware that no party in a legal action can really
speak his mind while the action is occurring. Because we didn't
respond, people assumed that we were wrong.
Well, we weren't wrong and we won't be silent any more. We have
begun responding to the outrageous and outlandish opinions
expressed against SEA. We realize that people came to the only
conclusion possible, given the lack of reliable information about
this case.
We will respond to any and every comment about this case. We
welcome questions and urge people to call us at our office. When
the dust settles, no one will doubt our sincerity in trying to do
the right thing.
We'd also like to clear up a few basic misconceptions that have
appeared on the boards:
- SEA waited too long to take action.
Response: The legal world moves slowly. First we have to be
aware of the situation, determine that a violation of our
copyright existed, try to settle amicably and then take legal
action. That takes time.
- SEA doesn't upgrade it's program.
Response: We have updated the program nine times in three
years. We have made it available for several other operating
systems, such as OS/2 and CP/M. We will continue to upgrade
the program to benefit all users on all systems.
- SEA used the courts when it realized it couldn't compete on
raw programming talent.
Response: We have a very good program and one that is getting
better. We wouldn't be the defenders of an industry standard
if we didn't have programming talent to begin with.
- SEA is a Goliath pursuing a David called Phil Katz.
Response: Phil Katz is a not just a person. He is a
company, and a big one at that. PKWARE is a bigger company
than SEA, despite the fact we publish four programs. We
calculate that PKware currently grosses almost $2,000 a day,
or about five times what we do. We challenge him to make his
audited figures public.
- PKWARE must be a small company because we hear there are only
three employees including his mother.
Response: We applaud Mrs. Katz and wish her the best of
success. We too are a family run company. Andy Foray and
Thom Henderson are brothers-in-law and Irene Henderson serves
as secretary/treasurer. We have hired a programmer and a
license manager. We didn't do this because we had a windfall
profit, we did this because we needed to stay competitive and
to serve new markets.
- SEA should have pursued the case to a jury trial so a
precedent could be set for the industry.
Response: We wish we had the money to support our lawyer to
take this case to a jury trial conclusion. However, we were
eating hot dogs every night and had to take on outside
consulting jobs to make ends meet. We needed to end this
case before the legal fees devoured our company. Besides, we
weren't out to crucify the guy -- we just wanted him to stop
stealing our work.
If there are more questions, be assured, we will respond to them.
We have also issued a new policy statement regarding the
licensing of ARC. It has been uploaded to the IBMSW forum on
CompuServe, the utilities/archivers conference on BIX, and has
been disseminated to other BBSes as well. The terms probably are
the most liberal for any licensing policy for any software
company. And if that isn't enough, give us a call and we'll see
what we can work out.
We welcome the opportunity to better serve the shareware
community. We invite your comments and your suggestions.
-----------------------------------------------------------------
=================================================================
COLUMNS
=================================================================
YACK
Yet Another Complicated Komment
by Steven K. Hoskin
( STEVE HOSKIN at 1:128/31 )
Episode 12: The ARC Dilemma
Well, Dale, you asked for it. Opinions on ARC and the SEA/PKWare
lawsuit(s). I'll TRY to keep it on one page.
I understand SEA has considered ARC to be its trademark; SEA may
have even registered such. That's fine, but my understanding is
also that SEA has done nothing in three years to protect that
trademark. I am given to understand that failure to take actions
to protect a trademark leaves the bearer of said trademark
subject to loss of rights to same.
I understand that law recognizes that a trademark, even if
previously registered and accepted, can become generic, and if it
does so, the bearer of the trademark loses it. Monopoly, for
example, has become generic in the sense that when the average
person thinks of Monopoly they think of the game and not of
Milton Bradley (or whatever company makes the stupid game).
Therefore, Monopoly programs can be written without the authors
being successfully being sued for trademark violation since the
company that makes the game has legally lost the trademark; it is
now generic. This fact has been upheld in at least two court
cases. (1)
Has ARC become generic? If not, I'd say it's virtually so now.
What do YOU refer to an archive as? Most everyone I've ever
known calls them ARCs. "Say, Steve, what ARC program do you use
to ARC and deARC your ARCs?" "I use PKARC because it's TONS
faster and saves more space, and if I need to I can still use the
option to make ARCs that ARC can deARC." If that isn't generic I
don't know what is. And THAT came from a REAL conversation.
I don't mean to say SEA is wrong in this lawsuit (and I hear a
second one has been filed), but one point stands out clear:
SEA released source code to their shareware users, opening the
door to duplicated procedures in other programs and virtually
elimating SEA's ability to track down abusers of that source. I
think this fact probably eliminates SEA's ability to say it has
taken sufficient measures to protect "its" trademark.
_______________
(1) Shareware, a magazine that discusses and hosts
advertisements for shareware, freeware and public domain
programs. I do not recall the edition or volume number.
-----------------------------------------------------------------
David Deitch, Computer Connection
dwd0238@wucec1.wustl.bitnet
Fido 1:100/22malpass@vlsi.ll.mit.edu (Don Malpass) (10/06/88)
In article <302@wuibc.UUCP> gmat@wuibc.UUCP (Gregory Martin Amaya Tormo) writes: > >.... I wish there had been another way because we have all lost from >this mess. ...Let us stop wasting money and time >debating the issue any further. ... I believe >that all archive sites currently banning SEA archives should end the >protest as it is a mute point based on the now known facts. I encourage >the use of both ARC and ZOO (although I have never used it), and challenge >programmers out there to port the current ARC and ZOO version to unix, and >to take SEA up on their source code policy and use it to create ARC to ZOO >and ZOO to ARC converters.... >.... I challenge SEA to upgrade ARC to utilize the features and speed that >endeared me to the PKware programs in the first place. I see no need to >fight for a new standard, nor any reason to abandon the current one. This, on top of the "Brief History of Archiving" is almost more reasonable talk than I can handle. I s'pose there would be too much crow to eat for SEA to subcontract to Katz to provide the fast DOS machine-code version of generic ARC. Perhaps we can at least agree to a 5-day moratorium on further discussion while we ponder this wisdom and calm down enough to get on with the business at hand, leaving the politics to the retards in Congress [forgive the redundancy]. However, >...protest as it is a mute point based on the now known facts. ^^^^ I think you intended to say "MOOT" point. It is my continuing fervent hope that these points and the whole damn issue rapidly BECOME mute. Anyway, thanks again for a glimmer of sanity in this imbroglio. -- Don Malpass [malpass@LL-vlsi.arpa], [malpass@spenser.ll.mit.edu] My opinions are seldom shared by MIT Lincoln Lab, my actual employer RCA (known recently as GE), or my wife.