From <@vm42.cso.uiuc.edu:owner-cudigest@VMD.CSO.UIUC.EDU> Sun Jul 10 15:56:49 1994
Date: Sun, 10 Jul 1994 14:34:00 CDT
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Subject: Cu Digest, #6.62
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Computer underground Digest Sun July 10, 1994 Volume 6 : Issue 62
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
Archivist: Brendan Kehoe
Retiring Shadow Archivist: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Copper Ionizer: Ephram Shrustleau
CONTENTS, #6.62 (Sun, July 10, 1994)
File 1--Sysop Liability for Copyright Infringement (Sysop Beware)
File 2--The Disinformation Highway: A-V Shills Do It Again
File 3--Re: AA BBS Trial coming up
File 4--Re: DNA proposal
File 5--Response to Wade Riddick Open Letter
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Date: Thu, 8 Jul 1994 22:50:18 PDT
From: George, Donaldson & Ford
Subject: File 1--Sysop Liability for Copyright Infringement (Sysop Beware)
Source: LEGAL BYTES, Spring 1994, Volume 2, Number 1
Copyright (c) 1994 George, Donaldson & Ford, L.L.P.
(Permission is granted freely to redistribute
this newsletter in its entirety electronically.)
1. BBS SYSOP LIABILITY FOR COPYRIGHT INFRINGEMENT:
LET THE OPERATOR BEWARE!
Two recent court decisions should remind electronic bulletin
board ("BBS") system operators that, despite popular theories and
arguments, current statutory and common law is being applied to
BBSs without much attention to the unique nature of the
communications technology. These legal actions are challenging the
notion that BBSs can be unregulated virtual swap meets or
unsupervised shopping malls, where the sysop can provide a place
for the swapping of computer files and information, without tending
to the content or pedigree of the files available on the board.
1. PLAYBOY ENTERPRISES, INC. v. FRENA.
In December, 1993, a federal trial court in Florida decided an
important copyright case involving a typical situation faced by
many BBS sysops: the unauthorized uploading of copyrighted files
by users. The case imposes a high standard of liability on sysops,
and should be a reminder that sysops need to pay attention to
*actual* court decisions, not just the latest legal theories
bandied about the Net.
George Frena is the sysop of a BBS in Florida called "Techs
Warehouse." His BBS carries, among other things, adult material.
At the time of the court decision, Frena provided free access to
users who purchased products from him, and charged $25 a month to
those who did not. Frena allowed subscribers to upload whatever
they wanted onto his BBS, and uploads were apparently immediately
available for downloading.
According to the opinion, Techs Warehouse contained among its
files 170 copyrighted PLAYBOY and PLAYGIRL pictures. Frena
conceded that these pictures were on his BBS, and that he did not
have authority from Playboy Enterprises, Inc. ("PEI"), to
distribute the pictures. The pictures' file descriptions included
the registered trademarks PLAYBOY and PLAYMATE. PEI's text had
been removed from these pictures, and Frena's name, "Techs
Warehouse BBS," and the BBS's phone number had been added.
According to Frena, he did not post or alter the pictures; the
files were all modified and uploaded by users. After PEI sued him,
Frena removed the offending files and now monitors his BBS to
assure that no more PLAYBOY pictures are uploaded.
In a simple one-two analysis of "ownership" and "copying", the
Court held that Frena violated PEI's copyrights.
The Court first held that PEI owned the copyrights in the
pictures, which was not disputed. The Court then decided that
Frena had "copied" these pictures, despite his claim not to have
posted the pictures on the BBS himself. The Court *inferred* that
Frena had copied because (a) Frena had access to the original
pictures, because *PLAYBOY* is a widely circulated magazine; (b)
the computer file images were "substantially similar" to the
copyrighted PLAYBOY pictures; and (c) the copyright owner's "public
distribution" and "display" rights were infringed by having the
image files available on the BBS.
The two arguments a typical sysop might think persuasive in
this situation were rejected.
First, even if Frena himself did not copy the pictures, the
Court said that was irrelevant. The mere presence of the images on
his BBS was enough:
There is no dispute that Defendant Frena supplied a product
containing unauthorized copies of a copyrighted work. It does
not matter that Defendant Frena claims he did not make the
Second, even if Frena did not *intend* to violate PEI's
copyrights, the Court held this too was irrelevant:
It does not matter that Defendant Frena may have been unaware
of the copyright infringement. Intent to infringe is not
needed to find copyright infringement. ... [E]ven an innocent
infringer is liable for infringement ... .
Innocent intent only matters when it comes to damages, not
Along with copyright infringement, the Court also held that
Frena was liable for trademark infringement, because the offending
files contained the PLAYBOY and PLAYMATE registered trademarks.
Again, Frena's claim that he did not himself put these words on the
images nor post the images was held to be irrelevant. As a final
reproof, the Court held that the trademark infringement also made
Frena liable for "unfair competition" against PEI. The Court left
the question of damages for a later hearing.
The procedural posture of the FRENA decision makes this an
especially important precedent: the Court was required to believe
Frena's claims, but found him liable anyway.
The Court in FRENA has essentially put the burden on BBS
sysops (at least those that charge money for access) of reviewing
all files on their boards for possible copyright and trademark
infringements. Regardless of the sysops' good faith or efforts to
remove infringing files, the sysop will be liable for copyright
trademark infringement for those files that escape detection.
Several aspects of the FRENA decision are open to question and
the opinion certainly will not be the last word, especially when a
case is decided by a court more attuned to the technology involved.
The FRENA court was certainly correct that a person need not
intend to infringe, or know he is infringing, to be liable for
copyright infringement. In that sense, it is a "strict liability"
tort. When applied to computer files actually uploaded by the
sysop, this principle is no less fair than when it is applied to
non-electronic publishers like newspapers and magazines.
However, one can wonder about the Court's unquestioning
application of this principle to files uploaded by users. Are a
BBS's file directories similar to paper publications, as the Court
assumed without discussing the question, or are they more like a
swap meet or shopping mall where the sysop provides the space, and
the users provide the goods? Holding a sysop strictly liable for
the legal pedigree of every file on the BBS significantly limits
the core innovation of BBSs -- free two-directional file transfer.
A newspaper publisher cannot claim not to know what is in the
newspaper; the publisher makes the decision what to include and
what to leave out. The sysop does not necessarily do this, or know
what is on the BBS at any given time. Given the ability to upload
and download files without the sysop's knowledge, is it proper to
hold the sysop strictly liable for the presence of infringing
files? If it is, is it also correct, as the FRENA court did, to
automatically infer the additional element of copyright
infringement -- "copying"? Is simply providing the *means* to swap
copyrighted files enough to make a sysop liable for illegal
"copying"? Should there be some requirement that the sysop at
least *know* that copyrighted files are being posted and downloaded
by users, and made no attempt, or only inadequate attempts, to
prevent such activity before a Court finds that he copied the
The Court in FRENA imposed liability regardless of the sysop's
knowledge of what users were doing on his board. Would the Court
have reached the same conclusion so easily if Frena had been the
owner of a shopping mall leasing space to a tenant who was (without
his knowledge) selling Metallica T-shirt rip-offs?
The Court also appeared to misunderstand the nature of a BBS
when it held that the availability of the image files violated the
"display" right aspect of a copyright. The Court apparently
believed the images were actually *displayed* to the user, a
capability that is only offered by some large commercial BBSs, and
is limited by the user's communication software. Of course, the
"public distribution" aspect of a copyright can still be violated
by the distribution of a computer file containing an image, and so
this error has no meaningful effect on the decision.
Finally, toward the end of its opinion, the Court seemed to
lose track of Frena's claim that he did not upload the images,
erase PEI's text, or add the BBSs' name and phone number himself --
a claim the Court legally had to accept at that stage in the
proceedings. It is not clear whether Frena unequivocally stated
that he did not know the PLAYBOY pictures were on his BBS before he
was sued. However, the Court went a step further, stating that
Frena himself deleted PEI's text from the PLAYBOY pictures,
"add[ed] his own text" and "appropriat[ed] PEI's photographs
without attribution," even though Frena denied having done so. The
Court's assumption of disputed facts in PEI's favor, while
questionable, might actually limit the impact of the opinion as
precedent, because if Frena *had*, in fact, done those things
himself there would be little question of his liability.
These problems with the FRENA opinion demonstrate that the
courts continue to struggle to understand computer communication
technology. The natural tendency of the law is to make square pegs
fit round holes until someone persuasively explains the difference.
For example, judging from the Court's opinion, Frena's lawyers
spent substantial energy making an obviously weak, losing defense
that making copyrighted PLAYBOY pictures available for download on
a commercial BBS was a "fair use" of those pictures exempt from
copyright law. The effort would better have been spent explaining
the unique nature of BBSs to the judge, and the unique problems
facing sysops in patrolling for copyright infringement.
PLAYBOY ENTERPRISES, INC. v. FRENA can be found at 22 Media
Law Reporter 1301 (M.D. Fla. Dec. 9, 1993).
Date: 07 Jul 94 14:07:23 EDT
From: Urnst Couch, Crypt Newsletter <70743.1711@COMPUSERVE.COM>
Subject: File 2--The Disinformation Highway: A-V Shills Do It Again
Here's a news story for CuD that broke out in June and splashed all
over Compuserve, Ziff-Davis On-line, anyone who read NewsBytes and
various other places. --Urnst
Pete: What's the difference between an
anti-virus software vendor and a virus writer?
Re-Pete: Gee, I dunno, Pete!
Pete: The anti-virus software vendor can afford
to staff a public relations department.
Although the joke is guaranteed to raise the hackles on conservative
elements within the world of computing, it remains quite a mystery to
Crypt Newsletter staffers why much of the on-line computer press still
react like stone idiots when confronted with p.r. touting super
viruses more than two years after Michelangelo.
Such was the case, recently, when a small anti-virus company from
Washington decided to use the shopworn cry of "Wolf!" over just
another of the thousands of viruses which can infect IBM-compatible
Reflex claimed to have discovered a virus called Junkie on an unnamed
client's system in Ann Arbor, Michigan. A company press release
outlining the was issued, landing with a satisfying thud at the
on-line NewsBytes news service which essentially republished Reflex
p.r. verbatim as wire news.
"Another Super-Virus Discovered," trumpeted the title of the June 2
NewsBytes article baring the Junkie threat.
NewsBytes proceeded to reprint the advice of Reflex flack Bob Reed who
claimed, "The only known cure is re-formatting the [computer's] hard
disk." And criminally stupid advice it was. Junkie virus could - in a
pinch - be removed from infected machines without the use of
anti-virus software and without eliminating all the data on the
computer's hard disk. In fact, the advice attributed to Reflex was so
bad it should have raised questions among computer journalists whether
the company even staffed the kind of experts that should be relied
upon when looking for anti-virus security.
Another representative from Reflex promptly engaged in an exercise in
finger-pointing, blaming Ziff-Davis On-line reporter Doug Vargas who,
he said, told readers "the only way to get rid of the virus is to
format the drive and start over."
"Evidently, this was lost in the translation from the Reflex engineers
to Doug Vargas . . . ," claimed the company spokesman. In any case, it
gave the impression Reflex representatives had no idea what they were
talking about and that on-line reporters weren't helping matters
The Reflex reps stressed the virus utilized alarming new techniques to
enhance its virulence. It could, they said, be spread by anti-virus
software to every other susceptible program on the computer. This was
dutifully passed on by NewsBytes and later Compuserve On-line, which
repackaged much of the original June 2 wirecopy for republication on
June 15 as part of its On-Line Today news service.
Again this was mendacious, mostly by error of omission. Viruses which
are spread by the action of anti-virus programs were not new.
Anti-virus specialists had been well-acquainted with such tricks since
at least 1992. Even the cheapest manuals supplied with such software
describe the mode of action in some detail.
Junkie was also a polymorphic virus, said NewsBytes, a virus much
harder to detect than average programs of the type because of an
encrypting technology which constantly shifts the majority of the
virus's instructions into a gobble unrecognizable by anti-virus
This also wasn't quite true. Bill Arnold, an IBM anti-virus software
developer said of Junkie, "For what it's worth, [Junkie] is easily
detected with scan strings with wildcards . . ." This meant that
although Junkie was "polymorphic," it was so in only a nit-picker's
sense of the term. A unique string of instructions could simply be
extracted from the Junkie virus and immediately folded into existing
software. The current edition of IBM's anti-virus software detected
Junkie as did a number of other competing programs. However,
Compuserve attributed Frank Horowitz of Reflex with another "good
salesman's" claim: that anti-virus scanner software couldn't find
To top it off, Junkie wasn't common. Outside of the alleged report
from Ann Arbor, Michigan, the only other claim to surface in the days
to follow came from Malmo, a city in Scandinavia. Junkie was actually
more virulent when amplified by the power of journalism. A story on it
had even been picked up by The New Orleans Times Picayune newspaper.
"The only known comprehensive method of detection and prevention [for
Junkie] at this date is . . . from Reflex," read the company's press
release on the virus. Paradoxically, the press release mentioned the
company had to rely on a competitor's product to help identify the
virus - a bit of news noticeably lacking from most on-line stories
dealing with Junkie.
The Compuserve news service also attached hearsay on another virus,
called Smeg, to the Junkie story. Funneled through Horowitz, Smeg was
dubbed another super virus infecting the financial districts of
London. Unfortunately, it was just more silly exaggeration. Richard
Ford, an Englishman who edits the trade journal Virus Bulletin,
estimated that only between 2-12 cases of Smeg had been found in the
United Kingdom. Of those, only two sightings were rock solid.
Ironically, the to-do about Smeg and Junkie got the attention of that
segment of the hacker underground interested in viruses. Although no
one in the underground had a sample of the Smeg virus at the beginning
of June, due to the publicity, a handful of hackers started making
inquiries and by the second week of the month had been able to obtain
a working copy of one of the versions of Smeg - there were actually
two - by way of a German named Gerhard Maier who had ties to the
European anti-virus software industry. Maier had accumulated a
reputation as a bulk purchaser of computer viruses from individuals
who operated private bulletin board systems stocking the programs on
the US eastern seaboard. The copy of the virus, attached to a copy of
the MS-DOS editor, was quickly passed around the United States to
anyone with the wit to ask via network electronic mail along the
FIDO-net backbone and through the Internet service known as Internet
Some refused to take a hit on the Junkie virus p.r. A reporter for
Information Week magazine furnished an article which, in short,
claimed the affair nonsense. Earlier, he had contacted Mark Ludwig,
an author who has published books containing a multiplicity of virus
code, for background. Although Ludwig hadn't seen Junkie, he informed
the reporter the case for it was quite probably over-stated.
Perhaps the most interesting facet of the Junkie virus story is the
way news concerning it was spread, twisted and manipulated into
strange and frightening tale far more interesting than the actual
program itelf. If there is a good side to the Junkie virus it is the
likelihood that the next time anti-virus vendors come knocking - and
they will - the chain of fools within the computer press corps who
unquestioningly cater to them will be a few links shorter.
Date: Thu, 7 Jul 94 22:19:33 PDT
From: email@example.com (H Keith Henson)
Subject: File 3--Re: AA BBS Trial coming up
Re File 9 of the 5 July issue of CuD,--Some thoughts on the AA BBS,
the Advocate writes:
>Stuff about the AA BBS case. This case is essentially a war of ideas.
>Can a backwards, pigheaded state like Tennessee set the moral and
>cultural standard of a sophisticated state like California?
So far they are making a serious attempt.
>I say not, and like minded individuals agree with us.
I would guess that 90+ percent of the people on the net agree, but
they don't control the federal legal and police forces.
>These "Reagan-Jungians" need to be beaten back. The best light is that
>of the First Amendment. Bring the press in, point out the vital issues.
While the press has been somewhat supportive, they don't get the
connection between *their* presses and what an adult BBS provides.
They don't understand the need to defend on the margins *before* you
get your heart ripped out. ("First they came for the Pornographers .
>The judge will be embarrassed if the AP or Court TV is televising
>what this action is about.
Federal courts don't admit TV. The original bust with its obvious
frame up of the sysop was reported on local (Bay area) TV. None of
those involved seem to be embarrassed in the slightest. (Though Judge
Brazil did remove himself from the case after being accused of serious
breaches of conduct.)
As a follow on what I posted mid January, it turns out that
possessing kiddy porn is not a crime in the 9th circuit. The
Excitement Video case in California ruled the law unconstitutional on
appeal. Newsom (the TN prosecutor) specializes in porn and must have
been up on this landmark case. The case was local to California, so
the local prosecutors would have known about it as well. It has
always been a mystery as to why postal inspector Dirmeyer did not have
warrant for the kiddy porn he mailed to the sysop just before he came
We now figure they left it off on purpose because even a corrupt judge
who knew about the EV case would not issue a warrant for something he
knew was legal! However, until the Supreme court rules on a case and
unifies the law, possession of kiddy porn *is* a crime in the 6th
circuit (where Tennessee is located). So, the sysop was indicted
*there* after being framed for possession in California! Aside from
the frame up, this raises the issue of: Can someone be charged with a
crime in a different district of the country when what they did would
not be a crime where it was done? The feds in Tennessee seem to think
they can do it. (Ah, well. California has some odd notions of how
far they can reach on things like sales and income taxes.)
>Has anyone tried contacting the Playboy Foundation or the Guccione
>Foundation. Contact people like Spider Robinson or William Gibson.
>Publicity can only help.
Yes Playboy Foundation, no Guccione. Playboy was marginally helpful.
Does anyone have an address or number for any of those mentioned?
>Especially given the candy ass tricks the prosecutors are trying out.
Right you are! This is clearly political/religious persecution. (Does
anyone know anything about the Conservative Caucus??) But what the
hell can you do when the courts ignore their own rules and cater to
the prosecutors? The court should dismiss this one on the speedy
trial issue alone (40 days over the limit), but the judge has not
ruled on several of the defendant's motions to dismiss, such as the
NAFTA issue. The judge and prosecutor seem determined to break the
For example, the last time Richard Williams (the AA BBS lawyer) went
to Memphis for a hearing, neither the judge (Gibbons) nor the
prosecutor (Newsom) assigned to the case showed up. All Richard could
do was to turn around and come home with $2000 in plane fare and
expenses down the drain.
There is a hearing Friday, (July 8, 1994) at which the judge will ask
Richard a single question--"are you ready for trial July 18" and to
which he will answer "yes." This could be accomplished by telephone,
but the judge said "show up or else." (Fortunately Richard was able
to get a local lawyer to show up in his place and say "yes.") I very
much doubt *they* will be ready for trial, since the judge has not
ruled on the motions in anything approaching the time allowed by court
My bet based on watching this business since January is that the judge
will stall till the trial starts, rule against all motions, and start
a trial which will be overturned on appeal just to break the AA BBS
sysop financially. There seems to be no rules against this vile
misuse of judicial power--nor any forum in which you can complain.
(Except the media--which is rather reluctant to support anyone whom
the government has smeared with the "hot button" of child porn.)
>Bring heat to Reno and Clinton.
I haven't got a clue as to how to do this. I can't (and neither can
anyone else who has tried) even reach Veronica Coleman, the local US
Attorney, much less her boss Janet Reno. Actually, I feel for Clinton
because there are likely people who *do* know how to hold his feet to
the fire. My bet is that the NSA/CIA/FIB/XYZ knows (as someone put it
on eff.talk) something Hillery does not. I am beginning to think that
top politicians should fuck sheep and abuse children on live TV.
Otherwise, those who know about their minor sins have an arm lock on
them. J. Edgar Hoover abused the US Presidents this way for all of
his long career.
>If this case is to be tried, it should be in california.
Judge Gibbons *did* rule on this one--denied. There wouldn't *be* a
case in California. You can buy everything the AA BBS sysop was
accused of selling within 10 blocks of the Federal Courthouse in San
Keith Henson (who finds that the government disobeying the rules
makes him itch!)
I get conflicting information on the status of the kiddy porn law in
the 9th circuit. Mike Godwin sent me a note that the case ruled on
the issue of whether the government had to prove *mens rea* (intent)
with regard to possession, and that the law--presumably 2252(a)(1) is
still in force everywhere. I guess this reasoning might get you off
if the cops found child porn which you could prove you did not know
you had (tough!). However, I get news from Richard Williams that
several people have been released as a result of this ruling. Perhaps
Mike Godwin will want to make further comments?
*****IN ANY CASE, CONSIDER CHILD PORN ILLEGAL IN EVERY STATE******
Re the hearing Friday, Judge Gibbons is allowing only a week for the
trial when three weeks were requested. (Vacation, you know.) I guess
that is the Memphis approach to "speedy trial." When asked about
rulings on the motions before her, she stated they were all denied,
and that they "were in the typewriter." (Reports indicate she was
hopping mad that Rich was able to find a local attorney to show up
which saved his client a heap of expenses.)
The very short trial indicates to me that they may be intending to
drop most of the charges. The kiddy porn charge is a blatant frameup,
much worse than the entrapment case the Supreme Court ruled on in '92.
They are claiming that expressing an interest in "unique" material in
chat equals ordering child porn. There is, of course, no evidence
that the AA BBS sysop has ever had any interest child porn. (He
certainly does have "unique" material for an adult BBS. The kitten-
in-a-sandbox one with the provocative title, the montage of 30
assholes, and the lobster shots are great examples!)
The downloading charges are equally bogus. There is no possible way a
sysop can prevent downloading into an up-tight state. If this *is* a
crime, Postal Inspector Dirmeyer is the guilty party.
That leaves the GIFS on disks, and the tapes. I know these are
available by mail from Europe and Mexico, so they will fall under
NAFTA--on appeal is my bet.
I sure do wish there was someone In TN who could look up Judge
Gibbons record, but that place is almost off the net.
Date: Thu, 7 Jul 94 19:02:02 EST
From: rainer@TOPAZIO.DCC.UFMG.BR(Rainer Brockerhoff)
Subject: File 4--Re: DNA proposal
These are comments on :
" A New Computer Standard: Fixing the Flats on the Information Highway"
by Wade Riddick , published in CuD 6.60,
and a rebuttal by Dr.Jerry Leichter , published in
In an open letter to US Vice-president Al Gore, Mr. Riddick sketches a
proposal for the establishment of an "open standard" he calls DNA,
which, as far as I understood his intentions, would define a
platform-independent object-oriented way of transporting data,
applications, operating systems and yet-to-be-invented other software.
Moreover he proposes that this standard be developed and enforced by
the US Government.
Dr. Leichter cites several examples of government-imposed standard
efforts that went awry, such as the late unlamented IBM channel
architecture and the never-quite-here OSI standards, and also mentions
the "death of object-oriented programming" as published in Byte
Magazine to bolster his dismissal of Mr. Riddick's arguments. I agree
with most of Dr. Leichter's rebuttal (although I see his repeated
mention of Mr. Riddick's lack of credentials as somewhat ad-hominem)
but I would like to call attention to an as-yet unmentioned flaw in
Mr.Riddick's proposal, namely the problems inherent in the
establishment of a standard by the _US_ Government (or any other
"merely" national government).
Although the US certainly has been for many years the main player and
focus in hardware and software, the international market is growing
intolerant of products that do not take international requirements
into consideration very early in the design process. Most major
'popular' computer magazines had recent articles on software
localization (I don't have the pertinent issue of Byte Magazine at
hand, to continue the line of the previous letters).
Here in Brazil we have had several excellent examples of the evils of
government intervention into computer standards. For instance some
years ago the local industry produced a slew of modems based on the
1200/75 baud standard that the national packet network used,
discouraging manufacturers from using the faster standards used
elsewhere. As a result, Brazilian modems are still (nearly all) huge,
slow and vastly overpriced.
Another example was the definition of a Brazilian ASCII (BRASCII)
character set. At the time (83) I was designing 8-bit microcomputers
for a local manufacturer. Since there was no clear international
standard at the time that incorporated all accented upper and
lowercase characters needed in Portuguese, BRASCII defined a new
character set for that. As a result we not only had to provide for
the use of these characters in an operating system designed around
English ASCII, but also had to provide alternatives a few years later
when the different extended character set of the IBM/PC became the
norm. Luckily the machine went out of date before Macintoshes and
Windows came out, since those use yet another (mutually incompatible)
extended ASCII. Today BRASCII is used, you guessed it, only on
machines bought by the government. I have done much work in
localizing software for the Brazilian market and have had great
trouble getting around the provincial mindset that many computer
companies build into their products (although that's slowly getting
better). I shudder to think of the biases the US Government, given its
inertia and general ignorance of foreign cultures, would build into
any standard as that proposed by Mr. Riddick. I also venture to
predict that any government-driven approach to standards on the
"information super-highway", to use the latest buzzword, is doomed to
failure on the long run. The US cannot hope to cling to provincial
standards on such a large and _necessarily_ global undertaking.
As a counterexample we need look no farther than the Internet over
which all this debate is taking place. The Internet protocols and
(relating to my example above) the MIME mail interchange standard are
in place and working, whatever their minor flaws, in a way that no
standard not obtained by consensus would work. I say, let the
expanding Internet community work on developing and proposing such
standards as they may be needed (_which_ are needed I won't venture to
propose here) but let's keep the government - any government - out of
In keeping with Dr. Leichter's letter I suppose I should mention my
own credentials : I work in computing since it was still called data
processing (1969), have programmed systems ranging from plug-board
machines over 4K IBM1401's to IBM and Burroughs mainframes, as well as
several brands of ancient and modern microcomputers. I also have done
hardware design, operating system design, embedded software for
medical systems, software localization and user interface design.
Lately I own and operate MetaLink, Brazil's first commercial on-line
service. Perhaps least importantly I have a Specialist (ABT) degree in
Computer Science from UFMG, Brazil.
Date: 06 Jul 94 21:55:20 EDT
From: David Moore <72074.1740@COMPUSERVE.COM>
Subject: File 5--Response to Wade Riddick Open Letter
Response to : Wade Riddick
An Open Letter To Al Gore,
Vice President of the United States of America
A New Computer Standard:
Fixing the Flats on the Information Highway
As a long time CUD lurker, I read this and planned to ignore it.
However, upon completing the entire article, I decided that Wade
Riddick is sincere and well meaning and deserves a response.
(I'm also guessing that he is a recent and enthusiastic purchaser of
a Macintosh Power PC. )
The U.S. government, however, has not done a good job of
standardizing the basic commands needed to operate computers-the
languages, compilers, operating systems and other instructions
governing the microprocessor (the central processing unit, or CPU,
that is a computer's "brain"). These forms of programming
instructions are the most valuable types of electronic data because
they tell computers how to handle information. If an application
(program) can be transmitted between two different computers but
cannot run on both machines-the current norm in the industry-the
application's value is limited.
A parade of images danced through my head of programmers hard at work
coding in government mandated Ada using a government certified Ada
compiler without integrated debug on a government approved computer
targeted for government mandated instruction sets. I can see them
illuminated by the green glow of their 3277 screens.
OK, maybe that little image is unfair. There are two misconceptions
here. The biggest is that there is someone in authority who knows
the best way to develop software (or anything). The other
misconception is that the computer application contains the value and
therefore should freely port between machines. The value is
contained in the DATA, not the application. More and more the
ability to port formatted data between machines is demanded. You
want to move your MS Word Document or your Excel spreadsheet, or your
Canvas drawing between PCs and Macs. You don't move the application
software because not only will it not work, you don't move it for the
same reason you wouldn't move it between two different PCs. You have
legal problems accounting for the machine installation. You also
don't want to have to keep installing and de-installing applications.
If you exchange via modem or e-mail, you want to send your 6K Excel
data file, not your 15 Meg application.
No one company has the business
expertise to design an entire system in a world where more diverse
products have to be brought to market faster than ever. That speed
requires higher levels of coordination, cooperation and
standardization between companies.
You seem to be suggesting that some government agency has the
expertise and speed to define standards for diverse products in order
to bring them to market faster. I can only say that your faith in
government is very patriotic. I'd also like to remind you that
"Government" is not an entity. Most government products, including
military products, are produced under contract by the very companies
you seek to replace.
incentive to sell incompatible platforms is still there; companies
have just decided to rely on translation software that they make,
called microkernels, instead of full-blown operating systems for
their profits. They have failed to break up the operating system
into individual components that can be built by different companies
according to comparative (instead of historical) advantage.
As much as it seems like a dastardly plot, it really isn't. Each
operating system came about through a series of enhancements from
prior versions along with the market need to maintain backward
compatibility. Contrary to your implication, there is nothing
magical about "full-blown operating systems" as compared to
microkernels. Microkernels are a modularized design technique
applied to operating systems to allow for future flexibility and
expansion. It's not simply translation software. In most cases
these microkernels represent pieces of standardized interfaces that
lead toward hardware independent applications. Isn't that what
you're asking for?
Under this system, it would be up to the CPU's manufacturer to
supply the most basic translation libraries, but other firms could
supply add-ons or extensions for functions too complex for the CPU to
This is not a new system. In fact I remember thinking what a
wonderful idea this was when I picked up my first UCSD P-Code package
about 15 years ago. One pseudo-instruction set that could execute on
any computer, Nirvana. The real world impacts of this are many.
First there is the performance lost by not running native code. Even
more than this is the question of complex I/O (Graphics, Sound, i.e.
non-textual). Even with the same computer instruction set, you can't
expect to port complex I/O. Just try moving a 68000 application from
a Mac to an Amiga (both of which are 68000 based). What's more even
systems that are nominally the same cannot be expected to port
applications without difficulties. Ask anyone who's upgraded Unix
versions or implemented network changes. As for functions that are
too complex for the CPU to execute, again that's relative. It wasn't
long ago that multiplies were too complex.
In the past, companies have objected to the slight performance
degradation caused by interpretation. The Macintosh has been
successful precisely because of the huge "toolbox"18 of standard
commands it makes available to applications. Because programs "call"
these functions in the system, instead of in the application itself,
Apple has managed to reduce program size and smoothly maintain the
system's evolutionary growth path.
You appear to be suggesting that the Mac Tool box is interpreted and
is the reason for the Mac's success. Actually the reverse is true.
The toolbox is highly optimized native instruction routines that are
in essence the very microkernels you objected to earlier.
The Power PC uses a new platform and microprocessor, the 601.
To run the old software, which is written for a 68000 microprocessor,
the Power PC interprets and translates that code to the 601.
Reinterpreting the old 68000 instructions slows things down, but by
rewriting the toolbox to run on the faster new 601, Apple makes up
for that loss. Users see no performance degradation with old
software and see tremendous gains with new software.
I don't understand why you think that this supports your argument.
This is the same evolution we've seen to date. A product with a new
instruction set (the 601). You were arguing earlier that we
shouldn't allow new incompatible instruction sets. In order to break
into the existing software market base Apple implemented a translator
that will support old applications until new instruction applications
are produced to supersede them. The old applications don't run any
better. No one buys a next generation machine to obtain the same
performance as their old machine. The sole purpose is to lessen the
pain of transition to next generation incompatible instructions.
You imply that we can simply translate any future instruction needs.
That's true, but that's always been true. We can translate an Apple
II 6502 processor on a pentium machine and get better performance
than a genuine Apple II. Never the less, I doubt that there's much
market for that.
The real issue to be decided in the telecommunications debate is not
over who owns the virtual asphalt or builds the on-ramps. The
question is who will own the resulting computer standard governing
the packaging of information.
Again, you're confusing the DATA with the APPLICATION. The exact
instructions, CPU, or hardware are not important. What's important
is access to the information and the ability to interpret it, not the
specific interpreters (pun intended).
There is already a consensus in the industry as to what features
computers will incorporate in the next decade. It is also clear that
some sort of standard for object code will emerge as well.
I don't know who you're getting your consensus from, but I seriously
doubt that you could get two or more people to agree on the features
of a computer ten years in the future. With an 18 month generation
cycle, your trying to standardize an Intel..5,6,7,8,9,10,11.. 801286!
I wouldn't even bet on the instruction size much less define it. As
for defining an object code standard. Not only would I not attempt
it, I would argue that it's a giant step backward. As processor
power increases, portability and flexibility comes from Source code.
The object code that it compiles to becomes less and less important.
Government, though, has several options for the role it can play in
this process: (1) the Commerce Department, perhaps with some
authorizing legislation, could call industry heads together and order
them to set a common object code standard; (2) Commerce could
acceptbids from various companies and groups for such a standard; or
(3)finally, the federal government could itself craft a standard with
thehelp of qualified but disinterested engineers, and then try to
forceit upon the industry through the use of government procurement
rules,control over the flow of research and development money or
Sputter, Gasp, Shudder! I'm so stunned by this statement, I don't
know where to begin. Perhaps someone else will address it. If you
ever get the opportunity to attend a government standards meeting,
you'll find it quite ... er ... different!
A serious effort should also be made to reach a consensus
with other industrialized nations, for computers are
globally interconnected to a degree that no other mass
consumer product has been.
One more time. It's the data and the communications interface to
this data that's important. Not the specific hardware or software
Last but not least. It's clear that you're enthusiastic. Hang in
End of Computer Underground Digest #6.62