Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!csd4.milw.wisc.edu!cs.utexas.edu!uunet!algor2!jeffrey
From: jeffrey@algor2.uu.net (Jeffrey Kegler)
Newsgroups: gnu.misc.discuss
Subject: Apple/uSoft Court's "Memorandum of Decision and Order"
Summary: Reports to the contrary notwithstanding, it is troubling
Message-ID: <1989Jul31.223834.10407@algor2.uu.net>
Date: 31 Jul 89 22:38:34 GMT
Reply-To: jeffrey@algor2.UUCP (Jeffrey Kegler)
Organization: Algorists, Inc.
Lines: 73


First, my thanks to John Gilmore for going to the trouble of retyping
the memo into the net.  Despite a lot of nasty language aimed at the
Apple lawyers by the judge (referring at one point to "the self-serving
deposition testimony of Apple's witnesses"), those of us who support a
sane software market can take little comfort from it.  In fact, I
found its tone worrisome.

Most important sentence is in footnote 5: "The Court does not address
the questions of whether Apple's copyright is valid ..."

The Court introduces, or accepts from the Microsoft/Apple license it
was reading, the term "visual displays" as opposed to "interface".
Interface meant, to the judge, the "look and feel" of the whole
package, while "visual displays", were individual features, such as
window borders, scroll bars, arrangement of icons, etc.

The terminology adapted by the judge bothers me a lot.  For a start it
is completely non-standard technically.  More important, it seems to
say that the courts can look not just at a whole interface and
determine if it violates a copyright, but individual features.  If the
court proceeds to uphold the Apple copyright in any way, it will mean
that anyone designing any interface has to look at the most basic
features and determine if they are copyrighted.

For example, tiled windows.  The judge calls the Windows 1.0
arrangement tiled--the screen was always filled with non-overlapping
windows.  I assume any reader of this group is familiar with GNU
emacs, which uses just such an approach.  If this type of copyright
can form any basis for a lawsuit, the whole industry will be
paralyzed.

Some people are calling this a defeat for Apple based on the fact that
179 of 189 claims were thrown out of court.  The 179 were thrown out
on what for us is a technicality-- an old license from Apple to
Microsoft.  Those who have no license from Apple cannot assert any
such defense.

And the 10 claims that were left are big trouble.  The type of
windowed interface, tiled or overlapping is one.  Arrangement and
mobility of icons is another.

As the judge says of the term "visual displays", "there is no basis
for attributing to it a specific, technical meaning... A visual
display necessarily is what the user sees on the screen."  If the
court upholds copyrights not of the whole "look and feel" (a phrase
the judge never uses), but of "visual displays", which are so vague
they can only be defined by judges in the course of litigation, the
American computer industry will have to employ two lawyers for every
programmer.

"The Court will therefore now proceed to determine whether the use of
those unlicensed visual displays ... infringes Apple's audiovisual
copyrights."

Thanks for the warning.  If FSF has the resources to file an amicus
brief it may be high time.  Both litigants favor a computer software
copyright jurisprudence that will be a disaster for the American
software industry.  The judge is taking his framework for deciding
this case from two sets of attorneys who want to be able to litigate
over whether a dialog button reads "OK" or "Ok" (no joke here--the
judge addresses this issue).  The decision resulting, regardless of
whether Apple or Microsoft wins, could divide up the most trivial
interface technology among this country's computer giants.  In the not
very long run, it will harm even them.

I do not believe we can rely on Microsoft's lawyers to defend the
existence of a sane software industry.
-- 

Jeffrey Kegler, Independent UNIX Consultant, Algorists, Inc.
jeffrey@algor2.UU.NET or uunet!algor2!jeffrey
1762 Wainwright DR, Reston VA 22090