Category : Tutorials + Patches
Archive   : MSAPPLE.ZIP
Filename : MSAPPLE.LAW

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 against HP and Microsoft on March 17, 1988 in the U.S.
District Court in San Jose. If, after reading it, 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 willing to help coordinate
the development of an amicus curiae 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 [sic], 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 [sic] 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 [sic] 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.

________

(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 [sic] 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,
unles