*** From the Archives ***
This article is from June 4, 2009, and is no longer current.
Adobe Acquitted of InDesign Copyright Violation
I’m planning on suing all the other sites on the Web that have the word “secrets” in them and that provide content using written words. No, not really, but sometimes it seems like you can sue for anything these days, at least in America. (Is that what has become of the “American Dream”?) That’s what I think of, at least, when I read this morning that Adobe has been acquitted (again) of any wrongdoing in a copyright violation case that was brought against it by Brookhaven Typesetting Services some years ago — a case which alleged that Adobe had violated Brookhaven’s copyright because Brookhaven owned some page-layout software written in the early 90’s called K2.
Now, I’m not a lawyer, though I like arguing law and getting self-righteous as much as the next guy. So here’s the quick version of the story: In the early 1990s, a company called Science Typographers (STI) comes up with a textbook publishing page-layout program that they call K2. They try to license it to Aldus, which already had a little page-layout program called PageMaker. STI even goes as far as to send Aldus their source code for their program. Unfortunately, STI goes out of business soonafter and the program ends up in Brookhaven’s hands. In 1998, Adobe announces that they’re working on some new page-layout program, codenamed K2. The codename was later shed in favor of a better name: InDesign.
Brookhaven sued in 2001, saying that InDesign was not only a lot like their original program (it offered page-layout capabilities and could be used to lay out textbooks), but it also might offer long-document and science typesetting features someday. Six years later, Judge Ronald Whyte of the U.S. District Court for the Northern District of California granted a summary judgment in Adobe’s favor (you can read the judgement in this pdf, if you’re a masochist for that kind of thing), noting that expert witnesses who looked at the two programs’ source code saw zero similarities, and that Brookhaven could not demonstrate any significant unique copyrightable similarities between the two programs. Brookhaven appealed, and a few days ago, the U.S. Court of Appeals for the Ninth Circuit upheld the original decision.
So why am I typing all this? It’s certainly not an InDesign Secret that many people care about. But given that I’ve been in the page-layout biz since 1987 and played with lots of different apps, I found the story fascinating — in a train-wreck kind of way. From the limited facts I have, I’m glad that Adobe won this appeal, and I’m sorry that Adobe’s shareholders had to bear the burden of yet another case that appears to have no real basis in reality. Unfortunately, this kind of action is not uncommon against big software companies, apparently, making them all the more wary of talking to anyone on the outside.
I suppose, however, that given the outcome of that case, I probably shouldn’t try to sue those other secrets sites… even though there are a lot of them! Here’s a list I compiled in about 5 minutes:
- https://www.opensecrets.org/
- https://windowssecrets.com/
- https://www.parrotsecrets.com/
- https://www.trafficsecrets.com/
- https://www.scriptsecrets.net
- https://www.digital-photo-secrets.com/
- https://www.yogahealthsecrets.com/
- https://travelsecrets.com/
- https://www.scriptwritingsecrets.com/
- https://www.cinemasecrets.com/
- https://racingsecrets.com/
- https://www.decoratorsecrets.com/
- https://guitarsecrets.com/
- https://www.bopsecrets.org/
- https://www.bottomlinesecrets.com/
- https://twittinsecrets.com/
- https://www.recipesecrets.com/
- https://www.photosecrets.com/
- https://www.craftysecrets.com/
- https://www.citysecrets.com/
- https://www.catsecrets.com/
- https://www.50secrets.com/
- https://www.englishgrammarsecrets.com/
- https://www.1001beautysecrets.com/
- https://www.chocolatesecrets.net/
- https://www.cropcirclesecrets.org/
- https://www.troutfishingsecrets.com/
- https://www.sushisecrets.com/
Ooh. Sushi secrets… mmmm…. enjoy!
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The secret is … it’s actually raw fish!!! SHHHHH
Oh, and you could sue Anne-Marie for her InCopySecrets… ;-) Nice read David, thanks for sharing.
-Rufus
I am going to make a new website called “indesignsecretssecrets” it will be a trashy rumormill that covers all of the celebrity indesignsecrets news stories. Looks out Mr. Rankin, the paparazzi are coming to your door, we know you had an affair with Ms Univers!
Adobe could try to get their legal costs paid by Brookhaven. In the past, courts typically awarded legal costs only to successful plaintiffs (those suing). Since a 1998 Supreme Court decision called for a more even-handed treatment, courts have become more willing to award legal costs to whichever party wins, particularly in cases like this where the win came at summary judgment, indicating that Brookhaven never really had a case.
I don’t normally tilt in favor of deep-pocketed corporations, but given the number of harassment lawsuits taking place today, something needs to be done and what is more apt that forcing these thugs to pay. In the case of ‘class action’ lawsuits that are little more than ploys to enrich lawyers, the lawyers should be forced to pay.
That more even-handed approach still isn’t just. First, like patent trolls, it’s likely that the entity suing them, this Brookhaven, was deliberately set up to have almost zero assets, so it couldn’t pay if it lost. It is still possible to get past that to those who’d have grown rich if Adobe had chosen to settle out of court, a process called “piercing the corporate veil.” But it isn’t easy.
Second, as I like to tell people, our entire legal system is run of, by and for lawyers. It’s quite happy to award lawyers who win their fees, although not at the expense of the opposing side’s lawyers even though it is often they who manufactured the dispute. For IP law that’s $300/hour up. But the courts have yet to deem it necessary to award the actual winning party, which is often an individual or small company, for their costs. A just system would pay all those involved in a dispute on the winning side rather than just their lawyers. As I said, our legal system looks after the lawyers.
And by my lights, the lawyers ought to be at the end of the line when money is dolled out. Lawyers are getting rich while the rest of us suffer. I saw that a few weeks ago when I attended a few receptions at a big convention for international trademark lawyers in Seattle. The world economy may be hurting, but law is still flush with cash.
I also have some experience in this matter. In 2002, lawyers representing the Tolkien estate sued me in federal court, alleging copyright violation for my book-length Lord of the Rings chronology. The lawyer on the other side certainly grew rich. Based on what other lawyers told me, he probably billed the Tolkien estate around $250,000.
And for all that money, he lost badly. The arguments I made for fair use at the summary judgment stage were so telling, the estate bailed out, offering to settle out of court rather than face almost certain defeat. The judge later confirmed their fears by dismissing their lawsuit “with prejudice.”
What’s the justice in a system that pays a losing lawyer so handsomely and yet doesn’t permit a penny to be paid to an individual like me who, acting as pro se, defeats him? By any standard, I was the better lawyer. Even car mechanics have to actually fix a car to get paid. Why not treat lawyers the same?
You can always tell when a profession is in decline by the stress it places on credentials. Lincoln had less than one grade of formal education, yet he became an excellent lawyer and a great president. I know at least one highly visible, well-paid, Harvard-trained lawyer today that I wouldn’t trust to handle a parking ticket.
–Michael W. Perry, Seattle, author of Untangling Tolkien
Lets’ not forget blogs such as designsecrets.wordpress.com!
In addition to copyright laws, which are aimed at protecting intellectual property, there are anti-trust laws, which are aimed at protecting consumers (and the market in general) from monopolies.
Although both copyright laws and anti-trust laws are “internationally observed”, small, backward countries tend to get away with faking merchandise, and big, advanced countries tend to get away with charging consumers “whatever the market will bear” — and the more they dominate the market as a monopoly, the more they can charge.
One of the big problems here, I think, is that Bill Gates and Microsoft are widely regarded as the devil incarnate, while Steve Jobs and Apple are regarded as saints.
Having worked both as an employee and freelance as a proofreader for Science Typographers from 1978 thru about 1991, and … STI having failed at bankruptcy reorganization owing me and countless others a great deal in wages (only a coupla hundred dollars in my case; but way more for others, including–I was told–near 6 figures in one guy’s case), I can only say that it sounds as if the chickens have come home to roost, once and for all, to Mr. and Mrs. R., STI’s (and, later, Brookhaven Typesetting’s) principals.
While I really don’t wish ill on anyone, I remember enough late and bounced paychecks, and our medical insurance being cancelled unbeknownst to us–when I was still an employee (NY State’s Dept. of Labor, I believe, reached some kind of settlement with them that didn’t do us workers any substantial good)–while Mrs. R. drove her white Corvette to feel badly for them.
Imagine how surprised I was to find this item detailing their loss to Adobe on appeal. :)
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