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------------------------------------------------------------------------------- SEA vs. PKWARE Shareware Company Threatens BBS World That Gave It Life ------------------------------------------------------------------------------- Last April, System Enhancement Associates, vendors of the archive utility ARC, filed suit against Phil Katz, author of the archive programs PKARC and PKXARC, and his company PKWARE. SEA claimed trademark infringement on the name "ARC," and violation of their copyright on the "look and feel" of ARC's command-line user-interface, in addition to charging Katz with appropriating ARC program code. The company demanded all profits from PKARC and PKXARC, treble damages, statutory damages at the highest level allowed, and attorney fees. It also requested that all copies of PKARC and PKXARC, from those owned by bulletin board users to those licensed by businesses, be impounded, and that Katz be barred from ever again selling or distributing the programs. In August, SEA and PKWARE settled out of court. SEA obtained the source code for PKARC and PKXARC, and PKWARE's customer list, and Katz was required to pay SEA royalties on the program back to 1985, in addition to attorney's fees and legal expenses--an amount that, according to documents on file at the Milwaukee County Federal Courthouse, totals $62,500. He also agreed not to use the word "arc" in a trademark sense. Under the settlement Katz is permitted to license his PKARC and PKXARC programs (or PKPAK and PKUNPAK, as they are now called) from SEA until January 31, 1989. (Anyone who licenses PKPAK and/or PKUNPAK from Katz prior to then may continue to use those versions of the program perpetually, even after January 31, 1989.) Recently SEA filed contempt of court charges against Katz. While the company has kept details of their allegations under seal, they appear to be alleging that any use of the word "arc" by Katz, even as a descriptive or generic term (for instance, to refer to the act of achiving a file--whether one is using SEA's ARC or ZOO or any other archiving utility--as "arcing" it) is in viola- tion of the settlement. SEA has lately been contacting other software developers whose products make use of the ARC file format and threatening legal action. Gary Conway, author of NARC, an archive extraction utility, was contacted by the company, which tried to pressure him to license the ARC format and turn over the source code of NARC. Don Kinzer of Polytron received a similar call from Thom Henderson of SEA. Henderson told Kinzer that if a software product had the ability to read an ARC file--not create or extract it, merely read it--SEA would require the vendor to obtain a license from SEA. Settlement Issues and Rumor Mongering As part of the PKWARE-SEA settlement, both parties agreed to refrain from any comment on the settlement. Not surprisingly, unfounded rumors about the settlement have proliferated. One such rumor is that the judge in the PKWARE- SEA case had an outside consultant compare SEA's and Katz's source code. When the consultant found plagiarized code in PKARC, the story goes, Katz settled quickly to save face. Not true. No attorneys for either SEA or Katz had ever met with the judge prior to the settlement, and at no time did the judge ever retain an expert or himself see the source code. The real issues in the case were SEA's charges that Katz had copied ARC's program code and that he had violated the company's trademark on the word "arc." In regard to the first complaint, there are only two pieces of code in ARC with non-trivial algorithm: the squeeze code and the crunch code. SEA copied these almost verbatim from public domain sources. Katz's use of the same public domain sources resulted in a program that ran four times faster than the then current version of SEA's ARC. No competent programmer could ever conclude that Katz had plagiarized SEA code. SEA's claim that it owns a trademark on the word "arc" is, as one UUCP mail user noted, like Digital Equipment insisting that it owns the word "equipment." The word "arc" as an abbreviation for "archive" has been in the public domain long before either SEA or PKWARE entered the scene. Any word which has become a part of popular parlance, as "arc" has, cannot be protected as a trademark. Nevertheless, SEA claims that no one else can use this word to describe their archive utilities, and that Katz used it to intentionally confuse users and capitalize on the popularity of SEA's ARC. Finally, SEA claimed in its lawsuit that Katz violated the copyright on the "look and feel" of ARC's user-interface. Anyone who has ever used both ARC and PKARC knows that neither touts an interface that is anything more than a few commands and switches entered at the DOS command line. There are no menus. There are no full-screen displays. There is nothing artistic or seminal in the interface of either. Yet, SEA argued in its suit that Katz "substantially copied and plagiarized the entire appearance and user interface and screens which result when a computer user interacts with or uses [ARC]." By the same logic the author of Fido bulletin board software may as well sue the designer of RBBS. (Note: If you have any questions about the SEA suit, please see the copy of the complaint filed in that suit which has been circulating on bulletin boards and on-line services. A press statement concerning the settlement is also in circulation.) Why You As a User Should Care Over the past year the popularity of Katz's PKARC/PKXARC programs among both bulletin board and business users surpassed that of SEA's ARC by a wide margin. Many consider the suit that SEA waged against PKWARE, as well as the company's subsequent legal bullying of other shareware archive software developers, as legal coercion intended solely to drive its competitors out of business--a tactic not unheard of in the computer industry. Defending your software against a suit such as the one filed by SEA against PKWARE can run from $100,000 into the millions, as copyright and patent suits are the most costly forms of litigation to defend against. If your product is not grossing over a million in sales, you will be advised (nay, forced by economics) to seek an early settlement--as Katz did. Consider what this means if you're a Dan Bricklin-type programmer running a small software operation out of your home. The program you slaved over for months so that it might win you emancipation from your 9-to-5 job, you might be forced to destroy in a "legal settlement" over a bogus suit. (Some of us know people besides Katz to whom this has happened.) Consider what this means if you're a user. Your choice in software is being dictated, not by a software package's intrinsic merits, but legal manipulation. Legal manipulation that favors the litigant with the most money as opposed to the one with the best product. It also means that great programmers are spending their time in court when they could be busy creating better products for the marketplace. Unfortunately, legal experts are predicting an escalation in such suits over the next decade. What Can We Do? As a user you can stand up and say that you're not going to put up with companies that use the courts to strangle their competition, that employ lawyers and lawsuits to bully companies and independent programmers out of existence, that dish out frivolous suits rather than decent products. No, you do not have to take it anymore, and yes, you do have the power to change things. A number of bulletin board operators, to protest SEA's legal bullying of its competitors, have stopped using SEA's ARC to archive programs on their systems. Some have pulled SEA products from their file collections. We suggest that you likewise boycott SEA's ARC, as well as the company's SEADOG mail program, until the company desists its harassment of archive authors. But boycotts alone are rarely effective. We also ask that you write to SEA. Accompanying this file is a "form letter" to SEA (in the accompanying file LETTER.TXT) that you can print out, sign your name to, and mail. Feel free to add to or change anything in the letter. In addition, please upload this file and the accompanying file LETTER.TXT onto any bulletin board or on-line system that you call. If you are a sysop who supports this campaign we ask that you mention it in your board's introductory screen and ask users to download these files. If enough of us speak up and let it be known that we are opposed to this kind of misuse of the legal system, we will be sending a loud message to software vendors that the computer user community will not tolerate firms that attempt to drive their competitors out of business through legal harassment. Remember that together we have built the PC community into the most vibrant computer user community in history, and by uniting we can make it even better. Matt Anderson Sysop, Alaska EMS RBBS Fairbanks, Alaska 907/463-4988 Rod Bowman Sysop, PC Spectrum San Bernardino-Area, California 714/945-2612 Ed Branley Sysop, Minas Trinith RBBS New Orleans, Louisiana 504/455-8665 Danyaon Coston-Clark Sysop, ACCESS: ONLINE BBS Malverne, New York 516/887-5804 Mike Coticchio Sysop, Beginnings BBS Levittown, New York 516/796-7296 Juan Davila Sysop, Mega-D RBBS-PC Puerto Rico or Thereabouts 809/751-7728 Michael Davis Sysop, Horizon RBBS-PC Dallas, Texas 214/881-9346 Ron Fowler Author of MEX-PC Communications Program Fort Atkinson, Wisconsin John Friel III Author of Qmodem / Sysop, Qmodem PCBoard Cedar Rapids, Iowa 319/233-6157 Judy Getts Contributing Editor/Telecommunications PC World Magazine David Gibbs Sysop, The Midrange System Chicago, Illinois 312/439-9679 James A. Grettum Sysop, RBBS-PC of Fargo Fargo, North Dakota 701/293-5973 Chris Harrower Co-Sysop, Lancaster Area BBS Lancaster, Pennsylvania 717/394-1357 Andrew Hoag Sysop, Satellite RBBS North Dakota 701/232-3811 Jerry Hunter Sysop, DMC Switchboard Network RBBS-PC Arkansas 501/636-2810 Andy Jones Sysop, Everglad RBBS-PC Tampa-Area, Florida 813/992-5993 Bob Jones Sysop, BJ's RBBS-PC Pasadena-Area, California 818/248-1087 Loren Jones Sysop, RBBS-PC of Chicago Chicago, Illinois 312/352-1005 Henry Kisor Sysop, Word Processing BBS Chicago, Illinois 312/491-6995 Jeff Krueger Sysop, A Different BBS Chicago, Illinois 312/589-0074 Rick Lawsha Sysop, STORK RBBS Galesburg-Area, Illinois 309/342-0637 *.* Loban Sysop, Oregon Net Anaheim-Area, California 714/945-2612 Gene Lowry Sysop, Bigfoot II RBBS-PC Arizona 602/886-7943 Robert Mahoney Sysop, Exec-PC BBS Milwaukee, Wisconsin 414/964-5160 Sal Manaro Sysop, Underdog's Mininet Seattle, Washington 206/725-9233 Jon Martin Sysop, Aircomm Bay Area, California 415/689-2090 George Maynard Sysop, OBIE RBBS-PC Cleveland-Area, Ohio 216/684-2059 Jim Oswell Sysop, The Grapevine RBBS-PC Charlotte-Area, North Carolina 704/364-3632 Michael Part Sysop, The Wicked Scherzo Pasadena, California 818/906-8683 Tim Pearson Sysop, LANStar RBBS-PC Springfield, Missouri 417/673-2283 Terry Rossi Sysop, RTC-BBS New Jersey 609/654-0999 Jerry Shenk Co-Sysop, Lancaster Area BBS Lancaster, Pennsylvania 717/394-1357 Don Smith Sysop, NorthWest Ohio RBBS Toledo, Ohio 419/448-1421 Phil Stults Sysop, The LANS Multi-Node BBS #1 Gary, Indiana 219/884-9508 Maurice Thaler Sysop, Power Board BBS and Audio Projects BBS Madison, Wisconsin 608/221-8422 Bill Tulles Sysop, AV-SYNC Atlanta, Georgia 404/320-6202 Paul Waldinger Sysop, Sound of Music BBS Oceanside, New York 516/536-8723 Bob Westcott Sysop, Stateline BBS New Hampshire 603/424-5497 Randall Young Sysop, ATT-PAC BBS The Bay Area, California 415/829-6062 Posted September 5, 1988. [Note: Please do not alter or augment this file. If you are a sysop or software author and would like to add your name to this list of endorsers, please leave a message containing your name, phone number, name of your BBS and/or product, and the name of the city that your board resides in, to Judy Getts on one of the following boards: Exec-PC in Milwaukee at 414/964-5160; Loren Jones' RBBS-PC in Chicago at 312/352-1035; or the Sound of Music in Oceanside, New York at 516/536-8723. We thank you.] -------------------------------------------------------------------------------