Path: utzoo!attcan!uunet!husc6!ukma!nrl-cmf!ames!ucsd!nprdc!malloy From: malloy@nprdc.arpa (Sean Malloy) Newsgroups: comp.sys.ibm.pc Subject: Re: Wake up and smell the coffee Summary: "Find out what he's been smoking, and have a few ounces sent to my chambers." Message-ID: <934@skinner.nprdc.arpa> Date: 2 Oct 88 03:33:31 GMT References: <4574232@ <16800358@clio> <925@psu-cs.UUCP> <1988Sep13.185106.14193@gpu.utcs.toronto.edu> <506@mks.UUCP> <439@l5comp.UUCP> Reply-To: malloy@nprdc.arpa (Sean Malloy) Organization: Navy Personnel R&D Center, San Diego Lines: 293 In article <439@l5comp.UUCP> scotty@l5comp.UUCP (Scott Turner) writes: >[The author kindly asks that if you wish to flame him in public that you >at least read the last few paragraphs of this message before doing so.] Sounds fair to me. Done. Now, on to work . . . >The other big problem has been one Keith Peterson. He's been dancing around >this thing trying to throw gas on it to keep it going. He's scored a few >good splashes, but he has also needlessly muddied this matter when he missed. >(Can you make mud with gas? I hope so or my metaphor is in trouble. :) Keith has certainly put in a lot of effort to make sure that the situation is kept out in public where people will be aware of it; it's all to easy to let things like this vanish in the noise simply because it isn't being written up in some industry journal every time new information becomes available. The news media did the same thing when the Iranian airliner was shot down in the Persian Gulf, and I don't see you railing about their coverage, which, at least to my mind, has been equally inflammatory. >First big leap that people SHOULD have made but didn't about the recent >2nd lawsuit filed by SEA: They spent their $40,000 WELL! They got a damn >good lawyer who advised them well and may yet get one Phil Katz thrown in >jail. All the justice you can afford, eh? They invested $40,000, and are getting $62,500 out of PKware. Filing lawsuits is obviously a cost-effective business practice -- especially when the guy at the other end of the lawsuit can't afford to defend the lawsuit. >Phil signed that agreement even though it had two very key problems for him. >First, it clearly states he can't use the term ARC inside his new program >or dox. Second, ANY product he makes can't use the letter grouping ARC >anywhere inside the names of files it creates. By your own words, SEA has created an industry standard for archiving programs with ARC. In his documentation for PKPAK/PKUNPAK, Phil used the term 'ARCing' referring to the process of creating archive files. I seem to recall that a number of other companies have lost trademarks through usage falling into the public domain. Aspirin comes to mind. I believe that Xerox eventually gave up on pumping out money to prevent the same thing happening. How many of the people reading this casually refer to 'going to xerox some copies of this' or 'xerox copies' or 'xeroxes' whether or not the machine they are using to make the photocopies was built by Xerox? If 'arcing' and 'unarcing' have become common usage with respect to creating and extracting archive files, then SEA's trademark on ARC is unenforceable as regards those two verbs. In any case, you are flat _wrong_ about PKware not being able to sell programs that make ".ARC" files. More on this momentarily. >SEA's lawyer then finished the trap by making this deal with Phil to give >him a license to use the ARC file format and to distribute a modified >version of his program until Jan '89. HOWEVER, Phil's lawyer forgot the >fine print. While Phil can distribute said program, I can find no loophole >for said restriction on using the letter grouping ARC in filenames! ie Phil >could still sell a program, but he had to change the file extension he used. Wrong. From the text of the agreement between SEA and PKware that was archived at SIMTEL20: | 4. Termination of PK's License: After January 31, 1989, PK agrees | not to distribute or offer for license any program that: 1. | creates ARC compatible archive files; 2. by default adds a | filename extension of ".ARC"; or 3. processes ARC format files. | | 5. No Trademark License: After the effective date of this | Agreement, PK agrees not to distribute or offer for license any | program that carries a trademark, tradename or filename | including the letter combination "ARC" or any other trademark, | tradename or filename the use of which may be confusingly | similar to any of SEA's trademarks, or the use of which may be | likely to cause confusion or mistake or to deceive with respect | to SEA's programs. PK agrees to forthwith abandon any | applications it has pending to register in the United States | Patent & Trademark Office any of its trademarks containing the | letter combination "ARC". This says _explicitly_ that PKware may not distribute a _program_ that has 'ARC' in its name, whether in the documentation or on the disk. It also states _specifically_ the date _after_ which PKware is enjoined from selling a program that makes '.ARC' files (unless the user specifies that file extension explicitly). _After_ 1/1/89, the program can't make ".ARC" files. Not before. Changing the _program_ names to PKPAK and PKUNPAK fulfills the requirement in clause 5; nothing in clause 4 prohibits these programs from creating, by default, ".ARC" file extensions until the start of next year. SEA has shot themselves in the foot. >So all of Keith's recent efforts to fan the "SEA can't claim a trademark on >ARC" are for naught, if he's trying to save Phil. Even if SEA's claim to ARC >as a trademark is proven to be false at this point, Phil agreed not to use >it in his out of court settlement. If SEA's trademark on 'ARC' is ruled invalid, all PKware has to do is petition the court to overturn the settlement. >All I can suggest is that Phil better get a sharper lawyer to defend him on >this contempt filing than he had on the original. This SEA lawyer is SHARP. When how much you get paid, or whether you get paid at all, depends on your convincing the court that the other guy is Hitler even if he's Schweitzer, you're going to be grabbing for all the legal tricks you can. If some of them don't pay off, all you're out is time -- and you're out that anyway. >I think the person responsible for the whole ARC mess is one Phil Katz, not >SEA. We have only Mr. Katz to thank for getting SEA so pissed off that they >decided they had to take a new posture on ARC. Mr. Katz went in and started >taking away SEA's business without paying the dues that SEA has paid in full. >There are no VMS/Unix/Atari ST/Commodore C64/CPM/Amiga PKARC programs folks. >And there never would have been since Phil never released his source. If PKARC and PKXARC were so damaging to SEA's 'ARC' trademark and name, why did they wait until versions 3.5 and 3.6 of the PK programs were out? It seems to me that SEA is guilty of failing to defend their trademark. They ignored PKware until they saw that the PKware programs had grabbed a significant, if not major, piece of the archive program market, and only _then_ did they file to shut him down. This isn't "He's infringing our trademark; we'd better slap him down" but "He's cutting into our income; we'd better stomp him before we're out of a job". >Just look at it from SEA's viewpoint for a moment, you've created the industry >standard and fostered it's growth across a BROAD range of computers. But the >only place you get any pay back is from the IBM PC market. And then this >Phil Katz guy decides he's going to go after it, without having any of the >overhead from being the industry standard. He can even add this SQUASHED >format with ease since he has no concerns of VMS/UNIX/AMIGA etc... And people use this new program because it's faster and makes smaller archives, so it cuts into your income. So, rather than make your program better so it can compete with this new program, you drag him into a lawsuit you know you won't win if it drags on long enough, but you know he can't afford to spin the suit out for long enough to win, so he'll have to settle out of court. You get a legal precedent without having to test the justice of your position. >What would you do? Most people say SEA deserves to loose this conflict because >they didn't keep improving ARC and making it faster. But this is patently >untrue. What was ARC 5.21? Chopped liver? And never forget that if they add a >feature to ARC it has a wide impact which will elicit the same howls of >protest that PKARC's SQUASHED format brought. (HEAVY SATIRE WARNING) And SEA's _never_ released an updated version of their ARC program that created arcfiles that previous versions couldn't read. If SEA added a new feature to ARC, PKware would have to add that feature to PKARC and PKXARC, or would lose market share to SEA, and vice versa. In case you're not familiar with it, this is called _competition_. Two or more companies add features and utility to a program to create increased sales and income. SEA is trying to monopolize the market by trying to stomp on anyone who tries to reverse-engineer the ARC programs. It's already been proven in court that reverse-engineering _hardware_ is legal; why should _software_ be any different? >Surely people can remember back to when Phil was public enemy number one with >SYSOPS over his SQUASHED format? GEnie just recently started letting people >post arc files using this format. And only in the IBM roundtables since there >is no PKARC for the other computers. Funny, the 'arc' program I have running on the Vax at work reads arcfiles with SQUASHED format files in them. (HEAVY SATIRE WARNING) Then I must only have _imagined_ getting this program off of the comp.sources.unix newsgroup, and have only _thought_ I was reading documentation files I extracted using it. I _must_ have a medical checkup immediately; I'm hallucinating. Oh, but you said there was no _PKARC_ for other computers. Yes, I'm sorry, the program I use at work combines both create and extract into one program, and is written in C. As soon as I get some free time, I'll break it up into two programs, and rewrite it in Vax assembler. Real Soon Now. >I was surprised to find myself coming around to SEA's view of this thing. I >mean when you get right down to it who's done the most good for the most >people? SEA or PKWare? Who's been more open? SEA or PKWare? Who's had the >larger investment in ARC? SEA or PKWare? And if PKWare were to run SEA out >of the ARC business who would be hurt? SEA or ME? One of the underlying truths behind a free and open market is if you can't compete and won't get out of the market, you're going to lose money. Lose enough money, and you'll _have_ to get out of the market. >The last issue is what finally made me wake up folks. I've heard several >times that it's always a good idea to take something and reverse it to >see if you would like it the other way around, and THEN decide what to do. No matter which way the arguments are flying, when it comes down to what, in my opinion, is one company suing another because the second company is making a better product, then the first company is maliciously trying to monopolize the market. >SEA gave us source code to ARC so everyone could use it. PKWare gave us >nothing. If SEA were to give up on ARC those of us that depended on that >source code for non-PCDOS versions of ARC would be screwed since PKWare >never gave away their source. Never promised to either. Never gave away >any code fragments for those of us on non-PCDOS machines so we could read/write >SQUASHED arc files. The algorithms for the compression routines are in the public domain, because you can't copyright an algorithm. For all your screaming about what a monster Phil Katz is for not releasing source to PKARC and PKXARC and introducing this incompatible SQUASHED format, the fact remains that he _did_ release the format of a SQUASHED file, and anyone who is willing to put in the work to write a SQUASHing routine for a non-PCDOS machine can do it. You are saying that Phil Katz is dirt because he only created this new archive format for PCDOS machines. (HEAVY SATIRE WARNING) If you are so anguished about the hapless plight of the millions of Amiga, Atari, Commodore, Apple, and Mac users out there, who are all _obviously_ incapable of writing code of this complexity given both the algorithm used and the file format, (FLAME WARNING) then by God _YOU_ write the programs for them -- don't go whining and badmouthing Phil Katz because he only wanted to do it for the IBM PC! >After looking at it that way I just couldn't swallow Keith's garbage anymore. >And further study revealed all that I have laid out above. You're not putting out garbage -- just fertilizer. > >But just keep that above thought in mind when you pick a side to root for, >who's really trying to keep people from using their code? I agree. Phil Katz is keeping people from using his _code_. He has put a lot of work into his programs, and wants to prevent people from taking his code, filing off the serial numbers, and selling it as _their_ code. However, the _algorithms_ used in the programs are available, as is the file format. If you can't take an algorithm and a file format and write code that will generate that file format using that algorithm, then find someone who can and is willing to do it for you. >Phil has managed, through what would seem to be his close buddy Keith, to >start a anti-SEA movement. Everywhere you look you hear the chant "Kill SEA! >Kill SEA! Down with ARC! I want Phil's new product WHATEVER it is!" > >Boy, wouldn't you LOVE to be in that position? The general concensus appears to be that Phil Katz is getting a fudge packing from SEA. As a result of this, and based on his track record of producing quality software, people _are_ going to support his intention to build a new, and putatively better, file archiving program. This also puts him on the hot seat, because if it's a turkey, it's going to shoot his reputation full of holes. > >But it gets better. He now runs around saying his new program will use a >public domain file format and he will give away a library of routines for >reading/writing the new file format. > >He doesn't have to promise to give away all the source code, since he has >cleverly made the two topics of file format and reading/writing it HOT >buttons for the public. They see he's going to be a good guy about these >hot buttons and look no further. Like how those folks using machines Phil >has no intrest in are going to get a copy of his new program to use? Phil is >going to have a whole new market open to him on the PC universe and if he >succeeds in the current campaign he'll make a PILE of money off it. He's not >about to repeat SEA's mistake and give away the source code to HIS program >so he can face his own Phil Katz some day. Unless he's going to come up with some new compression algorithm and keep _that_ under his hat, he's going to be using existing file compression algorithms, which are publicly available. With the file format and the algorithm(s) used, anyone who's interested will be able to write routines to read and write the file format for other machines. If his new archiving program goes over big enough, _somebody_ will find it to be worth his while to write the code so he can read that format on his machine. Once that starts, it's all downhill from there -- more implementations on more machines will start appearing. >But there is one thing he is right about, we can no longer, thanks to Phil >Katz, rely on ARC as the industry standard. Phil has forced SEA into a postion >that they can no longer back down from. A new industry standard will HAVE >to be selected at this point. Not because SEA is evil, but because Phil Katz >backed them into a corner and they were FORCED to act as any reasonable person >would when their livelyhood is threatened. SEA wasn't competetive in the software market, so they decided that, since trying to compete in the market wouldn't _guarantee_ that they could compete, they dragged Phil into the legal system, where _he_ was the one who lacked the financial resources to compete. Sean Malloy Navy Personnel Research & Development Center San Diego, CA 92152-6800 malloy@nprdc.arpa