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From: gnu@hoptoad.uucp (John Gilmore)
Newsgroups: comp.sys.mac,comp.windows.ms,comp.sys.ibm.pc,misc.legal
Subject: Apple versus Microsoft -- not favorable to Apple.
Message-ID: <6815@hoptoad.uucp>
Date: 24 Mar 89 11:34:22 GMT
References: <6271@bsu-cs.UUCP>
Organization: Grasshopper Group in San Francisco
Lines: 68

I was in court last Friday to watch the suit.  What happened was
basically the judge rubber-stamping an agreement among the three
sets of lawyers (Apple, Microsoft, HP) that said that Windows 2.03
is a new product, not another version of Windows 1, so it is not
covered by the license agreement of Windows 1.

However, that doesn't mean that none of it is covered; the lawyer
for Microsoft believes that e.g. if Apple licensed Microsoft to
use trash cans in Windows 1, then even though all of Windows 2.03
doesn't qualify, the parts that are common still do.  What the agreement
really means is that they are going to settle the copyright issue
rather than avoid it.

Overall I was very impressed with one of the HP lawyers (Mr. Marshall),
and very unimpressed by the main Apple lawyer (Mr. Brown).  Marshall
and Mr. McDonald (of Microsoft) tended to ask straightforward questions
and make reasonable motions.  Apple's responses were almost uniformly
gobbledygook and mumbling.  E.g. while McDonald kept asking for a list
or summary of what parts of the visual interface Apple thought
infringed, Brown would just mumble about how the "totality of Apple's
way of expressing the desktop metaphor" was being infringed.  Another
example, Apple has filed an "estoppel" brief, asking that the court
stop Microsoft from shipping the product.  Unfortunately, the court has
to decide whether Apple has a valid copyright and whether HP/uS
infringes on that copyright, before taking such a step.  Apple filed
the estoppel brief a while ago, and brought it up again Friday.  Judge
Schwartzer's response: "I have read it three times, and your estoppel
brief made no sense at all to me."  Brown is not senile, he knows what
he is doing; and what he appears to be doing is deception and subterfuge.

Judge Schwartzer got them to start several processes moving at once in
the case -- investigating "access, copying, and substantial similarity
of images" issues around the claimed copyright infringement.  Mr.
Marshall of HP started discovery (obtaining documents from the other
side) on the question of whether Apple's work is original or not.  He
claimed that it was derived from Xerox's and other peoples' work, and
wants to find out what access Apple had to Xerox ideas and
expressions.  If Apple's work is not original, it is not
copyrightable.  (***If anyone on the net has specific knowledge about what
access Apple had to Xerox work in the early Mac/Lisa days, please get
in touch with Mr. Marshall via the HP Legal Dept.  This can help
guide them in what to ask about.***).

Apple has made several copyright filings for its "audio-visual interface"
(which does not include sound!  So it's more mumbling when they talk
about "audio-visual").  The filings consist of documents and a videotape
with some "representations" of the interface.  But the filing is not
the interface, it is just "representative" -- Apple claims that more
is protected than what they filed with the copyright office.  They didn't
file a copy of the "totality" that they claim to own.

I am personally pleased with how the case is going.  Apple's claimed
copyrights are "on the block", as Mr. Marshall said after court adjourned.
HP and Microsoft will make every effort to show that these copyrights
are worthless, and if they succeed, it will be binding and Apple will
lose the copyrights.  I wish them luck.

The next court session is at 10AM (time may change) on April 14th,
where the lawyers are supposed to come in with a proposed joint order
for discovery, issues, motions, etc, that the judge can okay to get
more stuff happening.  This is in US District Court in SF (Federal
Building, 450 Golden Gate Avenue); I encourage interested parties from
the Bay Area to attend.  I'll be the guy with the "Keep Your Lawyers
Off My Computer" buttons...
-- 
John Gilmore    {sun,pacbell,uunet,pyramid,amdahl}!hoptoad!gnu    g...@toad.com
"Use the Source, Luke...."
Copyright 1989 John Gilmore; you may redistribute only if your recipients may.