Xref: utzoo comp.society.futures:1959 comp.sys.mac.misc:2101 Path: utzoo!utgpu!news-server.csri.toronto.edu!clyde.concordia.ca!uunet!tut.cis.ohio-state.edu!giza.cis.ohio-state.edu!francis From: francis@giza.cis.ohio-state.edu (RD Francis) Newsgroups: comp.society.futures,comp.sys.mac.misc Subject: Re: Intellectual Property Message-ID: <82861@tut.cis.ohio-state.edu> Date: 9 Aug 90 19:49:32 GMT References: <1990Aug6.052300.2514@world.std.com> <4534@uqcspe.cs.uq.oz.au> Sender: news@tut.cis.ohio-state.edu Followup-To: comp.society.futures Distribution: comp Organization: Ohio State Computer Science Lines: 115 All right, in this vein, let's look at the legitimacy of the "look and feel" suits. I'm going to try something, which hopefully won't bomb miserably; namely, an analogy. M&M's are reasonably distinctive. For years, they have had the same package design, the same shape, the same kinds (well, we'll ignore the "holidays" stuff), and the same colors (and we'll ignore the "red dye" flap). If another candy company wanted to come out with a candy, call it W-W's, and put it in a dark brown wrapper the same basic shape and size as the M&M's wrapper, would that be legal? I would hope not (I'm not a lawyer, so I can't say for sure on any of this); a strong case could be made that this other company is attempting to sell their product by confusing the consumer into purchasing it when they intend to purchase M&M's. Now, say that company had distinctly different packaging from the M&M packaging. However, the candies themselves are the same size, shape, and selection of colors. Do the M&M people have a case? Well, I know *I've* seen pseudo-M&M's before; I don't think there's anything to prevent someone from copying the (ahem) "look and feel" of M&M's. Other companies are certainly allowed to compete against M&M's (if not, we've got a trust, essentially, which is against federal law for anyone but the government :-). As long as their product is clearly distinguishable from M&M's in the marketplace, there should be no problem. Now, let's say that this other company advertises that their candies are "just like M&M's only {better | cheaper| better and cheaper}." Anything obviously wrong with this? To the best of my knowledge, as long as the comparison is provable in some way (taste test, pricing at local stores, for instance), the M&M's people can't really complain. I believe there are restrictions on pricing WRT the production costs (i.e., if the other company were taking a loss on their candy, in order to drive the M&M's people out of business, that could be illegal). So, what effect will this other company's product have on M&M's? Some effect, in all likelihood. Some people will pick it up because it's new, and like it well enough to stick with it. Some people will pick it up because of its claims as far as its quality vs. M&M's, and like it well anough to stay. However, there may well be a backlash reaction ("If the best you can do to make me buy your product is compare yourself to another product, maybe that other product's what I should be buying"). Certainly, there will be a number of customers who will *never* believe that *anything* could beat out M&M's themselves (Well, I don't know anyone who feels that way about M&M's, but for instance I'm sure we *all* know at least *one* person who feels that way about, say, Kellogg's Pop-Tarts). Ultimately, the success or failure of the new product will be determined by its quality, and how successfully their marketing strategy convinces people to try it. Now, let's try to apply this (conceptually, at least) to software. Should another company be able to come up with a product that fits into the same niche that an existing product fits into? Certainly. Should company B (the newcomer) be able to make their product indistinguishable from company A's (the oldtimer) on the store shelves? No, packaging should differ. Should B be able to base the appearance of their product on the appearance of A's, *inside* the package. I would say yes, based on my previous discussion. Should B be able to make their product Identical to A's? No. (going back to the M&M's, the competition shouldn't be able to put little m's on the candies, or to steal the recipe for the candies). Whose product will win in the marketplace? Ultimately, the one that most successfully balances pricing and quality. OK, enough for idealism. Now let's get down to the real world. Generally, software is bought relatively blindly, with only a minimal opportunity to "test-drive" it. Quality differences aren't necessarily going to be apparent to the average buyer. Software purchases tend to be for the long term, more like car purchases than candy purchases. If the purchaser cannot distinguish between two packages in any way in a matter of a few minutes, to the purchaser they are identical in our field. Also, the appearance of a package, from the layout of items on a screen to the choices for names for commands can represent a fairly considerable investment of time and effort for a company. If I came up with such a nice layout for a program that everyone who wrote that type of program wanted to adopt it, I'd be annoyed to see it springing up everywhere. So what do I think should be done? Well, first it must be proven (or admitted) that the "look and feel" of a program is based on that of an existing program. If this is shown to be the case, that look and feel should be changed *or licensed*. As an example, let's assume that the ruler in MacWrite was an original idea of Apple's (I don't know whether it was or not; I do know it's the first place I ever saw anything like it). It was obviously such a good idea that every word processor for the Macintosh that I've ever seen uses it. Unless the originator of the concept has given permission, that doesn't quite seem fair. By giving the originator of the idea some small payment per copy of your program sold, plus credit for the layout. ("By permission of Lotus, Inc. Sutol 10-9-8 uses the layout of Lotus 1-2-3"). Hmm, actually this is all drifting off into utter fuzziness. I really don't have the slightest idea how to resolve this. The ruler, I think, is the perfect example of an idea that was so good that everyone *ought* to use it; it should be the standard for word processors on graphic computers, unless someone thinks of something better. It would be bad for the users, and somewhat unfair to other companies, if that concept couldn't have been used by others; at the same time, it isn't fair to force the company to turn their great idea over to the public domain, in essence. Perhaps trademarking would come in here somewhere? -- R David Francis francis@cis.ohio-state.edu