Martin Banks, Personal Computer World 01/86 - checked

January 1986 issue:

It was a dark and a chill night as the ghost of Charles Babbage arose from its resting place to stalk the halls of Lincoln's Inn Fields, the heart of London's legal community.

The ghost had a mission of the utmost seriousness. It had felt the vibrations out on the astral plane and had sensed the injustice building gradually within it. Now the time had come to strike. If others could do it and win, then who had a better claim to the same victories than Charles Babbage. The ghost was now intent upon gaining them.

In Lincoln's Inn Field it found what it sought, a legal mind skilled in the arts of copyright law. With a gentle puff of icy breath the legal mind was brought sharply awake, stunned by the apparition that stood at the end of the bed, wavering gently in the breeze. The apparition, once it was sure that this fine legal mind was fully home to lunch, spoke.

"Listen, I have a job for you. I want you to sue every company and every individual that has ever made a computer, ever thought of making a computer or ever wondered if it might be possible one day. I, the ghost of Charles Babbage, the inventor of the first computer, claim the copyright on the whole damned thing."

The fine legal mind, having rapidly digested this information, suggested that there might be problems with legal precedent, or the lack of it. "The precedent exists", said the ghost, "just go seek for the Apple".

Now that might seem just a trifle absurd, even though poor old Charles Babbage did invent a computer ages before anyone else (he called it a `difference engine', which has a much better ring to it than PC, but never mind). Only the lack of money and mechanical engineering skills prevented it working in practice.

On that basis, he or his descendants, including his ghost, have the legal right to sue just about everybody for coming up with a similar idea. OK, so they did it a different way by using electronics and stuff, which was cheating. He, however, came up with the idea.

Such a suggestion seems just about as logical as the recent happenings at Apple, already reckoned by some to be amongst the most litigious companies the computer industry has ever spawned. It is a company that has produced some great ideas in its time, and some interesting applications of those ideas, especially in the form of the all-conquering Apple II, and the later Macintosh machine.

Part of that computer, and its predecessor the now departed Lisa, is a graphics and icon-based interface that transformed the way in which users communicated with the machine. Together with the mouse, you can point to what you want with the cursor, click a few buttons and be into a file or performing some task without having to dabble in quirky command lines. This, not surprisingly, has been universally hailed as a `good idea'. As such, of course, it can't be copyrighted.

This is, presumably, somewhat to Apple's chagrin, for the company is keen to protect its rights and position by recourse to the legal profession. It has done it in the past, quite correctly from a legal point of view, with moves to stop some Far East manufacturers from gate-crashing the Apple II market with cheap hardware.

Certainly these machines were various degrees of a rip-off but, it has left Apple as the sole contender in its own marketplace, which is big but not going too far these days. IBM on the other hand has let others build clones and compatibles based on a publicly available operating system. The result has been that IBM is now sitting at the top of a much bigger marketplace that IS going somewhere.

Now Apple is on the legal trail again over the Macintosh interface. Its legal action against Digital Research seems, to an outsider, to border on the petulant. DR came up with GEM, another graphics-and-icons interface. The difference, as we all know, was that it was designed for the PC market, where such a thing was urgently needed.

It also followed the pattern set out by Apple with the Macintosh interface, after all, why re-invent the wheel.

GEM works differently to Macintosh, so it couldn't be touched as a direct copy. Apple therefore claimed copyright of how it looked. This is despite the fact that the Macintosh system works only in black and white, while GEM is in colour. Its contentions are apparently based on a legal precedent set in a computer games case between Atari and Bally-Midway, vs. Magnavox over a Pac Man rip-off claim.

This is a test defined at that case which is generally refered to as the `stand ten feet away and squint at it' test. If something looks similar under these circumstances, then you sue. Using this legal principle, Digital Research can definitely get its own back by suing Microsoft (and get in before Apple gets to them over MS-Windows looking the same as Macintosh - Apple is said to be `looking' at Windows already). DR could sue, quite justifiably for the visual similarities between CP/M and MS-DOS. Damn it, the A> is exactly the same.

Let's take it to the logical absurdity. I shall now sue my mate Guy Kewney for writing about computers in PCW AND, at the same time, having a beard. At ten feet, people have been known to confuse us (they can do it closer than that, but that is another story).

As some people have pointed out, the basis of Apple's case is tenuous at best. Apart from anything else, the Macintosh interface is itself a rip-off of the original SmallTalk system produced by Xerox. They haven't bothered to sue anyone. Another factor is the point that, as one US observer succinctly put it, "I'm not sure you can copyright a picture of a garbage can".

Quite why Apple decides to spend its time suing all and sundry is beyond me. As IBM has shown, the way to grow is to get everyone using the same things (ie PCs) from wherever. That way, there is more market for everyone. Apple's current legal activities have been likened, perhaps unkindly, to the writhings of a dying man, slashing out at all and sundry. Certainly the Apple legal department is one part with something still to live for.

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