An Open Letter to the Dbase Language Community Re Ashton-Tate/Fox Software Lawsuit Fox Sof

Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

An Open Letter to the Dbase Language Community Re: Ashton-Tate/Fox Software Lawsuit Fox Software tries hard to compete on the basis of product features and performance, and service to the user. Ashton-Tate has opted for litigation. Fox has not infringed Ashton-Tate's copyrights and has never competed with them unfairly. Our defenses and counterclaims against Ashton-Tate are now a matter of public record. We think they speak for themselves. To protect our business, Fox must meet Ashton-Tate head-on and endure the cost and distractions of litigation. However, this suit is not just a quarrel between Fox and Ashton-Tate. At its core, Ashton-Tate's suit embodies a deadly threat to the entire dbase community. From the very beginning, Ashton-Tate encouraged all of us -- not just Fox -- to produce applications, compilers, interpreters, report writers, program generators, etc. which utilize and support the dbase language. According to George Tate himself, this marketing strategy was calculated to extend the acceptance and influence of the dbase language as widely as possible and, thereby, to maximize Ashton-Tate's market share. This strategy has succeeded mightily. Ashton-Tate has captured more than 60% of the entire microcomputer database market. Hundreds of companies create products which support, use, and extend the dbase language: millions of lines of code have been written. Ability to read and write dbase files is an essential feature for databases, spreadsheets and many other types of programs. The vitality and breadth of the dbase aftermarket is a major reason for Ashton-Tate's success -- we all helped make Ashton-Tate what it is today. Now Ashton-Tate is trying to destroy the very people who helped them succeed. They claim that they alone own the dbase language and file formats. In Ashton-Tate's world, if you want to write programs in the dbase language you may use only an Ashton-Tate product -- no matter how flawed, mediocre, or expensive. If you find bugs, you'll wait for Ashton-Tate to fix them. If you want to read or write dbase files, you may do so only with Ashton-Tate's permission. We think Ashton-Tate is wrong. If a company induces others to develop language-compatible products to promote its own product as a de facto standard, it can't later forbid others to use the language. Fox will do everything possible to insure that the dbase language remains an industry standard. We are committed to providing dbase language users with timely products of the highest technical quality, at a fair price. This lawsuit will, if anything, accelerate introduction of new Fox products. Your enthusiastic acceptance of FoxBASE+ and FoxBASE+/Mac has been most gratifying and is deeply appreciated. We sincerely hope our next product, FoxPro, will also earn your approval. The outpouring of concern and encouragement from the dbase community has surprised and delighted us. We didn't know we had so many friends. Thank you. David Fulton Richard G. LaValley President Chairman ------------------------------------------------------------------------- PRESS INFORMATION For further information: For Immediate Release Richard Ney Fox Software, Inc. 419/874-0162 Note: A glossary of the legal Glenn Hart terms used appears at the end Glenn A. Hart Associates, Inc. of the release 914/357-2055 Fox Software Denies Ashton-Tate Complaints of Copyright Infringement and Unfair Competition, Files Affirmative Responses and Extensive Counterclaims Fox Claims Misappropriation of Trade Secrets, Unfair Competition, Monopolization, Fraudulent Copyrights Perrysburg, Ohio, December 12, 1988 -- Fox Software and Santa Cruz Operation, its licensee for SCO FoxBASE, have filed their Answer, Affirmative Defenses and Counterclaims in their lawsuit with Ashton-Tate. All Ashton-Tate claims of copyright infringement and unfair competition were denied. Fox Software's affirmative defenses raise the issues of the origin of the dBASE language and Ashton-Tate's products, Ashton- Tate's prior encouragement of others, especially Fox, to market compatible products, differences in the "look and feel" of Fox products from Ashton-Tate products, and the validity of Ashton-Tate copyrights. Extensive counterclaims against Ashton-Tate allege misappropriation of Fox proprietary, secret structures and algorithms, unfair competition, illegal monopolistic activity, and fraud in obtaining copyright registration. Fox has asked the U.S. District Court for the Central District of California to dismiss Ashton-Tate's Complaint with prejudice, to enjoin Ashton-Tate from its illegal monopolistic activities, to award Fox damages, and to declare Ashton-Tate's copyrights invalid. Affirmative Defenses Substantiate Fox Positions An extensive series of affirmative defenses support Fox Software's positions. Fox points out that dBASE II and its database language were derived from JPLDIS, a computer program developed at the Jet Propulsion Laboratories and from a program based on JPLDIS called Vulcan developed by Wayne Ratliff. Ashton-Tate's marketing strategy was to dominate the microcomputer database market by encouraging others to adopt the language used in dBASE II as an industry standard. As a result of its activities, Ashton-Tate has captured more than 60% of the microcomputer database market. In January of 1984, Fox Software advised George Tate, CEO of Ashton-Tate, and Wayne Ratliff, then an Ashton-Tate Vice-President, that Fox had developed a dBASE II workalike. After subsequently examining a copy, Ashton-Tate told Fox Software it could continue to sell the product. Ashton-Tate made no claim of copyright infringement, even though the Fox program was operationally identical to dBASE II. Subsequently, Ashton-Tate invited Fox to attend its 1986 developer's conference and to market FoxBASE+ at that conference. Ashton-Tate was well aware of the work-alike nature of Fox's product, even citing the Fox software's 100% compatibility with dBASE II and dBASE III Plus in the printed materials distributed at the conference. Ashton-Tate approached Fox in November of 1986 on the pretense of purchasing FoxBASE+ and marketing it as a developer's version of dBASE III Plus. In conjunction with these discussions, one of which Ashton-Tate tape recorded, Ashton-Tate induced Fox to disclose, in confidence, details of FoxBASE+ and to provide Ashton-Tate with details of the proprietary, secret structure and algorithms used in FoxBASE+. In February of 1988, Ashton-Tate sent a letter to members of a committee attempting to standardize the language used in dBASE and work-alike programs. Ashton-Tate's only concern was possible infringement on the trademarked name "dBASE"; at no time did Ashton- Tate suggest that the use of or the attempt to standardize the language constituted copyright infringement. "Look and Feel" of Current Fox Products Do Not Mirror Ashton-Tate Products; New Fox Programs Do Not Resemble Ashton-Tate Products in Any Way Fox noted that previous and current FoxBASE programs do not substantially copy the look of the dBASE programs. While some screens do resemble dBASE screens, such screens are not representative of the whole of the FoxBASE, FoxBASE+ and SCO FoxBASE programs. Many screens have no counterpart in the dBASE programs, Fox has added numerous commands, functions and other features not found in the counterpart dBASE programs, and whole sections of FoxBASE+ have no counterparts in dBASE III Plus. Neither do the Fox programs have the same feel as Ashton-Tate's programs, as the Fox software runs significantly faster and contains commands and functions not found in Ashton-Tate's programs, and, therefore, feels substantially different. Fox Software also observed that FoxBASE+/Mac and its recently announced FoxPro have entirely different user interfaces from both Ashton-Tate dBASE products and from Fox's own previous FoxBASE software. Fox Claims Ashton-Tate Has No Exclusive Rights to Screens, Language or File Structure Fox notes that Ashton-Tate has no exclusive rights in the screens, language or file structure used by dBASE and work-alike compatibles. Ashton-Tate can have no claim to the subject matter contained in JPLDIS, and dBASE IV and other Ashton-Tate dBASE products have borrowed liberally from other's works, including JPLDIS and third-party add-on products. In addition, Ashton-Tate's active encouragement of other companies to create programs and other materials incorporating the programming language and file formats used in dBASE amounts to dedication of the language to the public. Computer languages and file formats, per se, are not copyrightable subject matter. Fox also noted that the screens attached to Ashton-Tate's complaint do not meet the minimum requirements for copyright protection. Ashton-Tate Actions Amount to an Actual and Implied License to Make, Use and Sell FoxBASE programs Ashton-Tate's encouragement of Fox's development of the FoxBASE programs and its statement that Fox could continue to sell its products, combined with Fox's reliance on those acts and Fox Software's substantial investment of time and money in its software, amounts to an estoppel, laches and an actual and implied license to make, use and sell the FoxBASE programs, including FoxBASE, FoxBASE+, FoxBASE+/Mac, SCO FoxBASE and future releases. Fox Asserts Ashton-Tate Guilty of Fraud and Inequitable Conduct; Copyrights are Invalid Fox contends that Ashton-Tate intentionally withheld from the Copyright Office the fact that dBASE II, dBASE III, dBASE III PLUS and dBASE IV were derived from JPL's and Ratliff's earlier work, and that they intentionally failed to list preexisting works on their copyright applications. This intentional withholding of information from the Copyright Office constitutes fraud and inequitable conduct and invalidates each of the copyright registrations. Fox Counterclaims for Misappropriation of Trade Secrets, Unfair Competition, Monopolization under the Sherman Anti-Trust Act, Invalidation of Ashton-Tate Copyrights Injunctions Against the Continued Sale of dBASE IV, Invalidation of Ashton-Tate Copyrights, Various Damages Sought Fox Software has filed extensive counterclaims against Ashton- Tate. Claims for Trade Secret Misappropriation and Unfair Competition as described above address Ashton-Tate's willful misappropriation of the proprietary, secret structures and algorithms revealed to Ashton-Tate by Fox. Fox has also brought a counterclaim under the Sherman Anti- Trust Act. Ashton-Tate has monopolized and is attempting to monopolize the market for microcomputer database software, by fraudulently obtaining and attempting to enforce copyright registrations it knows to be invalid, fraudulently inducing companies to disclose confidential programming information and then using that information in dBASE products, and by bringing groundless litigation against publishers of dBASE-compatible products in an effort to drive them from the market and discourage others from entering the market. Fox called for a preliminary and permanent injunction against the continued misappropriation of Fox's proprietary information, continued unfair competition with Fox, prevention of Ashton-Tate monopolizing or attempting to monopolize the microcomputer database market, and the copying, selling, marketing and distribution of dBASE IV. Fox seeks the impounding and destruction of all copies of dBASE IV as well as actual, exemplary and punitive damages, court costs and attorneys' fees. In addition, Fox requested the Court to declare Ashton-Tate's copyright registrations on its dBASE programs to be invalid, to declare that Fox has not infringed any copyright belonging to Ashton-Tate, to declare that Ashton-Tate's screens, language and file structure are not copyrightable subject matter, and to declare that Ashton-Tate does not have a copyright in portions of the dBASE programs which it has incorporated from other sources. Fox seeks preliminary and permanent injunctions preventing Ashton-Tate from enforcing the copyrights for which it fraudulently procured registrations, and the award of damages. # # # ----------------------------------------------------------------- Layman's Glossary of Legal Terms Laches: Inaction on the part of a company in protecting its rights creates an assumption that activities of another company pertaining to those rights are acceptable. (Ashton-Tate waited many years before taking legal action against Fox). Estoppel: Affirmative actions by a company which in effect grant tacit approval to another company's activities, and upon which the other company relies. (Ashton-Tate's actions actively consent to Fox's activities). Dismissal With Prejudice: A dismissal of a lawsuit such that it can not be brought again. Preliminary Injunction: A company is forbidden to conduct certain activities while a case is pending; a preliminary injunction lasts only as long as the case is pending. Permanent Injunction: A company is permanently forbidden to engage in certain activities; a permanent injunction can be granted only when a case is decided. (Fox has asked the Court for a variety of injunctions against Ashton-Tate). Actual Damages: Monetary awards granted for specific, measurable and documented losses incurred. Exemplary Damages: Monetary awards which compensate a company above and beyond the actual damages incurred, to set an example of the guilty company. Punitive Damages: Monetary awards which punish a company for its misactions, unrelated to the actual damages incurred by the injured company. (Fox asks for Actual, Exemplary and Punitive Damages from Ashton-Tate, in addition to court costs and legal fees). # # #


E-Mail Fredric L. Rice / The Skeptic Tank