Them’s Fightin’ Words – Desktop Video’s Legal Flamewar
When the Supreme Court of the United States recently rejected without comment Apple’s long-running copyright infringement suit against Microsoft Corporation and others over the "look and feel" of the Macintosh interface, some people in the Mac community got worried. What would Apple’s lawyers do without that suit? Like loggers – er, "timber harvesting professionals" – in the Pacific Northwest, there no longer seemed to be enough natural resources to sustain them. These lawyers have families and children to feed! You can’t take away their livelihood!
Well, we should have had more faith.
First Frames — As noted in TidBITS-263, in early February Apple filed suit against Microsoft and Intel, alleging both companies knowingly used and distributed low-level driver code originally developed by the San Francisco Canyon Company for Apple’s QuickTime for Windows. The code involves DCI, a method which allows improved video performance on a video chipset not directly supported by earlier versions of Video For Windows (VFW). Microsoft disputed the claim, saying it had repeatedly asked Apple to detail its allegations but that Apple had refused. Apple, in turn, said Microsoft had been belittling, refused to talk with Apple about the situation, and had threatened to discontinue Macintosh development if Apple didn’t drop OpenDoc. Most industry observers seemed to feel the issue was exaggerated and, frankly, most expected the whole thing to blow over.
Big mistake. Let’s just highlight a few details: as soon as Apple filed the suit, Apple and Microsoft immediately engaged in a public relations shoving match, releasing video tapes, open letters, and online propaganda to "clarify" their stances. Apple offered an amnesty program to let Video For Windows developers "continue using the pirated VFW code" for 90 days. Microsoft countered with releases of its own, saying "if Apple sues any developer over use and distribution of Microsoft Video For Windows 1.1d Microsoft will defend any such lawsuit." Apple released videotapes and QuickTime movies allegedly showing that "Apple technology" improved overall performance of Video For Windows. Microsoft countered that Apple’s demonstrations were misleading and immediately released a videotape of its own tests, showing no significant performance difference between VFW 1.1d and earlier versions of Video For Windows. In a letter to Apple CEO Michael Spindler, Bill Gates denied threatening to cease Macintosh development and claimed Spindler had repeatedly refused to talk about Canyon matter until additional beta copies of Windows 95 were sent to Apple. Apple countered with more releases and open letters, making some of the materials available via its Web site.
Marching Along — It gets better. In early March, a federal judge issued a temporary restraining order prohibiting distribution of VFW 1.1d. Microsoft immediately announced Video For Windows 1.1e – a version that doesn’t contain the disputed code – in order to get around the restraining order and keep its developers happy. (VFW 1.1e has now been released to developers.) Apple – for once – shows some restraint and things were almost quiet for a few weeks.
Then, on 24-Mar-95, Microsoft filed a counter-suit, alleging Apple is conducting an "orchestrated campaign of false and deceptive information" and seeking unspecified damages. Microsoft said the code was commonly used and even owned by someone else before Apple used it in the Windows version of QuickTime. Then, according to [email protected] Week, the same day Microsoft filed the counter-suit, Apple discovered that both Intel and Microsoft were continuing to distribute VFW 1.1d via America Online in violation of the temporary restraining order. Microsoft and Intel both removed the software from their forums, but Apple wanted the restraining order made permanent. To add fuel to the fire, Microsoft alleged an Apple employee had been using a pseudonym online to discuss issues surrounding the suit..
So Where Are We? — On 31-Mar-95, U.S. District Judge Robert Aguilar convinced Intel, Microsoft, and Apple to briefly set their flamethrowers aside regarding the permanent restraining order, hopefully sparing a lengthy formal hearing on the motion. However, the motion for a permanent restraining order is only one small facet of this disagreement which has snowballed in the tradition of the finest flamewars ever witnessed online. Judge Aguilar perhaps summed it up best: "There’s no reason," he said, looking out over a courtroom of nearly 20 lawyers, "that counsel of your experience can’t work something out."
Just wait. I’ll bet there is.