From wpg!uunet!lll-winken!lll-lcc!well!rogue Tue Mar 22 00:22:05 CST 1988 I've received several pieces of mail indicating that the original posting of this message arrived in garbled form (or not at all) in various parts of the net. Because it concerns an important issue in which there appears to be a great deal of interest, I am reposting the article in its entirety, with all known errors corrected. Please forgive any inconvenience the extra copy may cause. Sincerely, Brett Glass (well!rogue) ________________________________________________________________ Apple has entered a legal challenge which, if successful, could have dire effects on future development of user interfaces for personal computers. I've keyboarded the complete text of the complaint filed by Apple Computer on March 17, 1988 in the U.S. District Court in San Jose. If you take as dim a view as I do of Apple's action, you may want to make your opinion known by penning a letter to: Mr. John Sculley Chairman of the Board Apple Computer, Inc. 20525 Mariani Avenue Cupertino, California 95041 (408) 996-1010 If there is sufficient interest, I am also willing to help coordinate the development of an "Amicus Curiae" ("Friend of the Court") brief opposing Apple's claims. For more information on this effort, please contact me (L. Brett Glass) at one of the following electronic addresses: Usenet: {ihnp4 | uunet}!lll-winken!well!rogue BIX: glass CompuServe and MCI: CIS [72267,3673] And now, the text.... _______________________________________________________________ Jack E. Brown BROWN & BAIN, P.A. Post Office Box 400 222 North Central Avenue Phoenix, Arizona 85001 (602)257-8777 Lois W. Abraham Chris R. Ottenweller Martin L. Lagod Jeffrey D. Steinhardt BROWN & BAIN 600 Hansen Way, Suite 100 Palo Alto, California 94306 (415)856-9411 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA APPLE COMPUTER, INC., ) a California corporation, ) ) No. Plaintiff, ) ) COMPLAINT FOR COPYRIGHT v. ) INFRINGEMENT AND UNFAIR ) COMPETITION MICROSOFT CORPORATION, a Delaware ) corporation, and ) JURY TRIAL DEMANDED HEWLETT-PACKARD COMPANY, ) a California corporation, ) ) Defendants. ) ) ___________________________________) Plaintiff Apple Computer, Inc. ("Apple"), by its undersigned attorneys, complains of defendants and alleges as follows: NATURE OF THE ACTION ____________________ 1. This is an action arising out of defendants' infringement of Apple's copyrighted audiovisual works and the computer programs embodying those audiovisual works. JURISDICTION AND VENUE ______________________ 2. The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. $$ 1331 and 1338 and the doctrine of pendant jurisdiction. 3. Venue is proper in this court pursuant to 28 U.S.C. $ 1391(b) and (c) and $ 1400. THE PARTIES ___________ 4. Plaintiff Apple Computer, Inc. is a corporation organized and existing under the laws of the State of California with its principal place of business in Cupertino, California. Apple is engaged in the business of designing, developing and marketing computer hardware and software products, including the Macintosh computer. Apple is recognized as a worldwide leader in the design, manufacturing and distribution of innovative personal computer systems. 5. Defendant Microsoft Corporation ("Microsoft") is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Redmond, Washington. Microsoft is engaged in the business of developing, marketing and publishing computer programs. Microsoft is qualified to do business and is doing business in this judicial district. 6. Defendant Hewlett-Packard Company ("Hewlett-Packard") is a corporation organized and existing under the laws of the State of California with its principal place of business in Palo Alto, California. Hewlett-Packard is engaged in the business of designing, manufacturing and marketing hardware and software products which compete with Apple's products. Hewlett-Packard resides, transacts business and may be found in this judicial district. COUNT I _______ (Copyright Infringement) 7. Plaintiff repeats and incorporates herein the allegations set forth in paragraphs 1 through 6 above. 8. Since its introduction in 1984, the Macintosh personal computer has achieved great commercial success and acceptance in the United States and throughout the world. A major reason for that success is the innovative audiovisual display developed by Apple which makes the Macintosh unique and distinctive and, in computer parlance, extremely "user friendly." 9. The Macintosh computer programs generate a series of fanciful visual displays and images appearing on the computer screen, whereby the user, by using a cursor control device (i.e., "mouse"), can communicate with the computer. Apple has expended millions of dollars and years of creative effort in the development of artistic, aesthetically pleasing visual displays and graphic images that enhance the value and commercial appeal of Apple's products. The development started with Apple's work on the Lisa computer and continued through the extensive development efforts on the Macintosh. As a result of this major investment, the distinctive expression represented by the visual displays and graphic images generated by the Macintosh computer programs is widely recognized as a hallmark of the Macintosh computer system. 10. The visual displays and images generated by the Macintosh computer programs are protected audiovisual works under the Copyright Act. Apple is the owner of the following copyrighted audiovisual works, each of which substantially consists of material wholly original with Apple and is copyrightable subject matter under the Copyright Act: (a) Lisa, Reg. No. PA 336 104, effective May 1, 1987 (Exhibit A). (b) Macintosh Finder, Reg. No. PA 336 105, effective May 1, 1987, a derivative work based on Lisa (Exhibit B). (c) LisaDraw, Reg. No. PA 336 103, effective May 1, 1987 (Exhibit C). (d) MacDraw, Reg. No. PA 336 102, effective May 1, 1987, a derivative work based on LisaDraw (Exhibit D). (e) MacPaint, Reg. No. PA 336 107, effective May 1, 1987 (Exhibit E). (f) Lisa Project, Reg. No. PA 336 106, effective May 1, 1987 (Exhibit F). (g) Mac Project, Reg. No. PA 336 101, effective May 1, 1987 (Exhibit G). Further, the computer programs that embody the audiovisual works are protected literary works under the Copyright Act. Apple is the owner of the following computer programs, each of which substantially consists of material wholly original with Apple and is copyrightable subject matter under the Copyright Act: (h) Macintosh Finder 1.0, Reg. No. TX 2 130 713, effective August 25, 1987 (Exhibit H). (i) MacDraw 1.7, Reg. No. TX 2 130 712, effective August 25, 1987 (Exhibit I). (j) MacPaint 1.0, Reg. No. TX 2 130 711, effective August 25, 1987 (Exhibit J). (k) MacProject 1.0, Reg. No. TX 2 130 714, effective August 25, 1987 (Exhibit K). (l) Macintosh ROM, Reg. No. TX 2 130 714, effective September 12, 1985 and supplemental registration, Reg. No. TX 2 043 375, effective April 14, 1987 (Exhibit L). (m) Macintosh Plus ROM, Reg. No. TX 1 862 601, effective August 5, 1986 (Exhibit M). Collectively the above works are referred to herein as the "works in suit" or the Macintosh audiovisual works." 11. At all times, Apple has been and is the sole owner of all rights, title and interest in the works in suit. For each work Apple has complied in all respects with the Copyright Act and all other laws of the United States governing copyrights, and has received Certificates of Registration from the Register of Copyrights. 12. Hewlett-Packard sought a license from Apple for the Macintosh audiovisual works which, on information and belief, Hewlett-Packard intended to use in connection with computer programs that would generate visual displays and images. Apple declined to grant a license to its Macintosh audiovisual works. Plaintiff is informed and believes, and on that basis alleges, that nonetheless Hewlett-Packard has developed a computer program called "New Wave" which embodies and generates a copy of the Macintosh audiovisual works. New Wave must be used in conjunction with a computer program sold and distributed by Microsoft known as "Windows 2.03." On information and belief, Hewlett-Packard is licensed by Microsoft for the use of Windows 2.03 in connection with New Wave. As used herein, the term "New Wave" includes any and all visual displays and images generated by Windows 2.03 when operating in conjunction with New Wave. The term "Windows 2.03" is used herein to include all versions or revisions of that product. 13. The visual displays and images generated by New Wave are illegal and infringing copies of the Macintosh audiovisual works and are unauthorized derivative works. Attached hereto are photographs comparing various visual displays and images generated by the Macintosh computer programs (Exhibit N1, N3, N5, N7, and N9) and screen displays generated by New Wave (Exhibit N2, N4, N6, N8, and N10). The similarity between New Wave and the Macintosh visual displays and images is so great that even the Hewlett-Packard product manager for New Wave in touting the product has conceded publicly that New Wave is "similar to the Macintosh." On information and belief, Hewlett-Packard had access to the Macintosh audiovisual works. Hewlett-Packard's copying and adaptation of the Macintosh audiovisual works in New Wave infringe Apple's exclusive rights under the Copyright Act. 14. The visual displays and images generated by Windows 2.03 are themselves illegal and infringing copies of the Macintosh audiovisual works and are unauthorized derivative works. Throughout its development of Windows 2.03, Microsoft had access to the Macintosh audiovisual works. Microsoft's distribution and sale of Windows 2.03 and its copying and adaptation of the Macintosh audiovisual works exceed limited license rights granted to Microsoft by Apple and infringe Apple's exclusive rights under the Copyright Act. 15. Defendants' copying and adaptation of the Macintosh audiovisual works in New Wave and Windows 2.03 are unauthorized by Apple and constitute willful infringement of the exclusive rights reserved to Apple under the Copyright Act. By reason of defendants' acts of infringement, Apple has suffered and will continue to suffer, unless defendants' infringement is enjoined, irreparable injury that cannot be adequately be remedied at law. Because of such willful infringement, Apple is entitled to an award of its attorneys fees pursuant to 17 U.S.C. $ 505. COUNT II ________ (Contributory Infringement) 16. Plaintiff repeats and incorporates herein the allegations set forth in paragraphs 1 through 15 above. 17. On information and belief, Microsoft has aided and assisted Hewlett-Packard in using Windows 2.03 in conjunction with New Wave. On information and belief, Microsoft has facilitated, by purporting to grant license rights, and has involved itself in the development of New Wave. By such conduct Microsoft has and is continuing to contributorily infringe the Macintosh audiovisual works. 18. By reason of Microsoft's acts of contributory infringement, Apple has suffered and will continue to suffer, unless Microsoft's conduct is enjoined, irreparable injury that cannot be adequately remedied at law. COUNT III _________ (Unfair Competition) 19. Plaintiff repeats and incorporates herein the allegations set forth in paragraphs 1 through 18 above. 20. The acts committed by defendants as alleged above constitute unfair competition and unfair business practices in violation of California Business and Professions Code $ 17200 et seq. and common law. 21. Because of defendants' acts of unfair competition, plaintiff has suffered and will continue to suffer damages in an amount to be determined at trial. WHEREFORE, plaintiff prays for judgment as follows: 1. Enjoining defendants, their officers, agents, servants and employees and those persons in active concert or participation with them, from infringing or contributorily infringing the works in suit in any manner, directly or indirectly; 2. Enjoining defendants, their officers, agents, servants and employees and those persons in active concert or participation with them, from copying, selling, marketing, distributing, or placing in interstate commerce their products known as New Wave and Windows 2.03, or any version, revision or modification thereof or any derivative work based thereon; 3. Entering judgment in favor of plaintiff and against defendants declaring that defendants are infringing and have infringed the works in suit and that defendant Microsoft has and is contributorily infringing the works in suit; 4. Ordering defendants to account for all gains, profits and advantage derived from their infringement of plaintiff's copyrights; 5. Entering judgment in favor of plaintiff and against defendants jointly and severally in an amount equal to the damages sustained by the plaintiff and the profits earned by defendants from the infringements alleged herein pursuant to 17 U.S.C. $ 504(b); 6. Entering judgment in favor of plaintiff and against defendants jointly and severally for statutory damages in the amount of $50,000 per infringement pursuant to 17 U.S.C. $ 504(c); 7. Entering judgment in favor of plaintiff and against defendants jointly and severally in an amount equal to plaintiff's costs, including attorney's fees, pursuant to 17 U.S.C. $504(c); 7 [sic]. Entering judgment in favor of plaintiff and against defendants jointly and severally ordering the impoundment and destruction of all computer programs known as New Wave and Windows 2.03, or any version, revision or modification thereof or any derivative work based thereon; 8. Entering judgment in favor of plaintiff and against defendants jointly and severally for all damages sustained by plaintiff as a result of defendants' acts of unfair competition; 9. Ordering such other relief as is just and equitable in the circumstances. March 17, 1988 Jack E. Brown BROWN & BAIN, P.A. Post Office Box 400 222 North Central Avenue Phoenix, Arizona 85001 Lois W. Abraham Chris R. Ottenweller Martin L. Lagod Jeffrey D. Steinhardt BROWN & BAIN 600 Hansen Way, Suite 100 Palo Alto, California 94306 By: Attorneys for Plaintiff Apple Computer, Inc. JURY DEMAND ___________ Apple hereby demands a jury trial of all its claims against defendants. By: Attorneys for Plaintiff Apple Computer, Inc. From wpg!uunet!husc6!tut.cis.ohio-state.edu!bloom-beacon!mit-eddie!uw-beaver!cornell!rochester!ur-tut!aptr Tue Mar 22 00:23:22 CST 1988 Apple is either getting cockey or just plain stupid. Do they really think they can take on both HP and Microsoft? After all, the technology they are talking about was developed by Xerox in the seventies. (I actually had a chance to play with one of the Xerox systems in 1982 when they wer about to be replaced.) The person responsible for developing the Mac enviorment came from Xerox PARC. Apple decided (or rather Jobbs decided) to hire him because they had tried to write a system on their own and had really botched it. My father was at PARC (Palo Alto Research Center) the day Jobbs hired the guy (I can not think of his name). Jobbs came in in the morning and in the afternoon, the guy walked out with Jobbs, never to work for Xerox again. Apparently, Jobbs made an offer the guy couldn't refuse. Any one want to see Xerox sue the pants off of Apple? One other point should be made. When Apple sued Digital Research, Inc over GEM, most of the board of DRI was on the board at Apple. No wonder DRI settled out of court. I really doubt if HP or Microsoft would settle out of court. -- The Wumpus UUCP: {cmcl2!decvax}!rochester!ur-tut!aptr BITNET: aptrccss@uorvm Internet: aptr@tut.cc.rochester.edu Disclaimer: "Who? When? Me? It was the Booze!" - M. Binkley From wpg!uunet!husc6!hao!ames!lll-tis!mordor!sri-spam!robert Tue Mar 22 00:24:15 CST 1988 In article <1457@ur-tut.UUCP> aptr@tut.cc.rochester.edu.UUCP (The Wumpus) writes: + +The person responsible for developing the Mac enviorment came from +Xerox PARC. Apple decided (or rather Jobbs decided) to hire him +because they had tried to write a system on their own and had really +botched it. My father was at PARC (Palo Alto Research Center) the day +Jobbs hired the guy (I can not think of his name). Jobbs came in in +the morning and in the afternoon, the guy walked out with Jobbs, never +to work for Xerox again. Apparently, Jobbs made an offer the guy +couldn't refuse. + +Any one want to see Xerox sue the pants off of Apple? If Apple wins its' suit, and Xerox then sues Apple, it will be doubly ironic since Apple will have spent the money to develop a precedent which Xerox could then use to its' advantage. -- --------------------------------------------------------- Robert Allen, robert@spam.istc.sri.com 415-859-2143 (work phone, days) --------------------------------------------------------- From wpg!uunet!husc6!ut-sally!ut-emx!jcc Tue Mar 22 00:24:44 CST 1988 In article <1457@ur-tut.UUCP>, aptr@ur-tut (The Wumpus) writes: > Apple is either getting cockey or just plain stupid. Do they really > think they can take on both HP and Microsoft? [ other stuff deleted ] We were discussing this thing at work and one important word came up: CLARIS. Could it be that Apple is re-claiming its alleged right to the windowing interface so Claris can get that much more hold on the marketplace? As for specifics, we got pretty cooky after this, but some of the things we mused over was Claris writing its own "Windows" and New Wave, and telling Microsoft to go jump in a lake with its "Word." --chris Disclaimer: Nothing we said was rumor or fact, just a bunch of silliness. Any damages you might incur from the above is your own fault.