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From: steve@nuchat
Newsgroups: news.misc,news.sysadmin,comp.sys.mac,comp.sys.mac.programmer
Subject: Re: Official Legal Announcement regarding Apple's Source Code
Keywords: legal stuff
Message-ID: <11078@nuchat.UUCP>
Date: 17 Jun 89 22:22:46 GMT
References: <2073@astroatc.UUCP> <2928@csd4.milw.wisc.edu> <841@hydra.gatech.EDU>
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In-reply-to: ken@capone.gatech.edu (Ken Seefried iii)

In article <841@hydra.gatech.EDU>, ken@capone (Ken Seefried iii) writes:
>If you're not a lawyer, don't reply to this...too many people think
>they know the law and don't...

Lay people who pay attention can know as much about the law
as they want to.  I think I know the answer to this one, but
the only time you can bank on legal advise is when it comes
from an attorney when you are that attorney's client.  Even
then the only protection you have against error is the competence
of that attorney, and the only recourse you have is the right
to sue him (or her) for malpractice.

>Last time I read legal theory, you were innocent until proven guilty
>beyond a reasonable shadow...and all that.

That's true in criminal law.  Not in administrative or civil law.
(It's "beyond a resonable doubt", not a shadow.)

>Is it not incumbent upon Apple, in a suit, to prove that a clone-maker
>DID have access to the source, and not the responsability of the clone-
>maker to prove he didn't??  What am I missing here?

In a civil case the plaintiff is not "responsible" to prove anything.
The plaintiff makes his case, then the defendant makes his case, then
the judge and/or the jury makes a decision, then one or both parties
appeals, and eventually one of them gets tired and gives the other
what they want.

In a criminal case there is usually only one charge, and even when
there are multiple charges each one is decided either guilty or
not guilty.  In a civil case a single suit can raise multiple legal
theories for why the plaintiff should get relief, and may seek
multiple forms of relief.  Each issue is decided in turn, sometimes
by the judge even when there is a jury (instructed decision, or
somthing lile that).  Each question raised can be decided entirely
in favor of the defendant, entirely in favor of the plaintiff (or
even for more damages than the plaintive asked for), or somewhere
in between.

>In any case, is it not true that companies like Chips and Technologies
>have established precident that it IS possible to clone something exactly
>(bug-for-bug) without access to proprietary material?

My understanding of the status is that the precedents are not
something you can take to the bank yet, since they have only
been upheld by one federal district judge.  That means you can
use it in that district until it is overturned by the supremes
but shame on you if you bet the farm on it elsewhere.  The
analysis I read also indicated that the decisions are too narrow
to be sure how another case would be decided.  Judges are real
good at coming up with excuses for ignoring precedent when they
feel like it.

Anyway, the clean-room cloning applies to interfaces such
as the system call interface to MS-DOS, not to user interface
techniques.  Until Look-and-Feel theory is hashed out we won't
know if it applies there.  One would think that look-and-feel
would be covered by public lewdness or assault statutes, but
that's another kettle of lawyers.