Imitation Or Infringement?

By Philip Elmer-DeWitt

It began with an eleven-page complaint over the alleged violation of an arcane bit of copyright law. But by last week it was clear to the computer industry that the federal lawsuit filed by Apple Computer against Microsoft, a leading U.S. software firm, and Hewlett-Packard, a major electronics company, could be just the opening salvo in a monumental legal battle. The dispute pits two of the best-known figures in the industry against each other: John Sculley, 49, president of Apple; and Bill Gates, 32, chairman of Microsoft. It also seems calculated to derail the plans of IBM to endow its computer line with the "user friendly" features pioneered by Apple's popular Macintosh model.

At the center of the conflict is the part of a computer that is most visible to the user: the words and pictures that appear on the screen and the commands by which the machine can be made to do one's bidding. Conventional computers, including the industry-standard IBM PC, are controlled by entering commands letter by letter on the computer's typewriter-like keyboard. The Mac, by contrast, uses artful screen displays to create the visual illusion of a desktop littered with objects and documents that can be selected and manipulated with a "mouse," a handheld pointing device.

Apple's success with the Mac inspired a host of imitators who incorporated elements of the computer's visual display into their own systems. At the heart of the current dispute is Apple's charge that Microsoft, with a program called Windows 2.03, and Hewlett-Packard, with NewWave, took imitation beyond the point of flattery to copyright infringement. "The computer industry was created through the innovation of individuals," said Apple Chief Operating Officer Delbert Yocam. "It is critically important to the entire industry that innovation be protected from illegal copiers with the full force of law."

But the timing of Apple's action suggests more specific motives. Apple's archrival, IBM, is currently demonstrating to dealers and software developers a third program, called Presentation Manager, that is intended to be the software centerpiece of its new PS/2 line of personal computers. Presentation Manager is virtually identical to Windows 2.03, and any legal restraints placed on Windows can be expected to apply with equal force to the IBM program. That is the real target of Apple's suit, says Richard Shaffer, editor of Technologic Computer Letter. "Apple wants to delay, stall, confuse or otherwise hold at bay IBM's Presentation Manager."

IBM, Hewlett-Packard and Microsoft all express confidence that they are not in violation of Apple's copyrights. Microsoft's Gates is especially puzzled: in 1985 he and Sculley signed a confidential agreement, made public last week, that gave Microsoft a "nonexclusive, worldwide, royalty-free, perpetual, nontransferable license" to use parts of the Macintosh display in an earlier version of Windows. Apple argues that the latest version of Windows is too Mac-like and thus violates the agreement. But when Gates spoke to Sculley two days before the suit was filed, the Apple chairman made no mention of the problem.

For the moment at least, Apple has succeeded in casting a pall over the hundreds of independent software developers whom IBM is counting on to write programs that run in conjunction with the Microsoft product. Suddenly, they have to worry about whether the programs they are working on will be declared illegal. "For years Microsoft has been telling us Windows was safe," says - Philippe Kahn, president of Borland International, which has already spent nearly $1 million developing an information-retrieval program based on Windows. "It's like waking up and finding out that your partner might have AIDS."

With reporting by Charles Pelton/San Francisco