Endorsing A Computer Monopoly

Business Forum

Endorsing A Computer Monopoly

By R. Barry Borden

The New York Times

September 25, 1983

R. Barry Borden is chairman and chief executive of the Franklin Computer Corporation in Cherry Hill, N.J.

The Apple-Franklin litigation has been the subject of much notoriety and controversy. It has broadened beyond a dispute between two parties and has raised questions involving the rights of computer manufacturers, software companies, and, most importantly, consumers.

Franklin is of course sympathetic to the needs of the software industry to enjoy protection for their original works of authorship. This issue was never a question. Our dispute with Apple involves a substantially different matter. Namely, whether the copyright laws can be stretched so far as to afford protection in areas for which they were never intended.

What is ultimately at stake is how receptive the American system of copyrights and patents is to the use of such protection to obtain monopolies in high technology. If Apple's view prevails, rather than Franklin's, prices for computers will be higher, fewer computers will be sold and the software industry will have a smaller market. Unhappily, the consumer will pay more for technology.

Our system of copyrights and patents was developed to afford protection to authors and inventors, while encouraging free enterprise and safeguarding against monopolies. Copyright laws protect original works of authorship. If an idea can be expressed in a variety of ways, the assumption inherent in granting a copyright is that each of these ways may be individually protected.

A copyright is easy to obtain and lasts for 75 years. A patent, on the other hand, is more difficult to obtain and lasts for only 17 years. Patent laws protect inventions and discoveries. The criteria for patentability are stringent and require that the object under consideration possess a high degree of novelty and utility. To emphasize the distinction between our copyright and patent laws, Congress has stated that the protection of ''an idea, system, process or method of operation'' falls outside the realm of copyrights.

Apple has accused Franklin of violating Apple's copyright by employing some of the operating system programs integral to the Apple machine as part of the Franklin machine. Franklin's position is very simple. An application program such as Visicalc or Wordstar might be copyrightable. A portable operating system such as MS-DOS or CP/M, which, while it enhances the utility of a computer, is at least separable from the machine and may be adapted to run on a variety of computers. This may or may not be copyrightable. But if the very design of a machine, such as a computer, involves the implementation of functions performed by circuits and by program steps in which these circuits and program steps are mutually inseparable and form a single entity, then such an implementation cannot be copyrighted. To do so would be as absurd as assigning a copyright to the camshaft of an engine.

Such protection would provide an enormous loophole through which manufacturers could subvert the intent of our patent system. Our specific contention is that Apple is trying to establish such a loophole to protect a rather ordinary circuit.

Many products are brought to market by companies without the protection of copyrights or patents. They compete by the strength of their engineering, manufacturing and marketing. This encourages competition, which in general benefits society.

Franklin, by offering a computer capable of running the 15,000 programs developed independently for the Apple II by individuals or companies other than Apple, has broadened the market for such software products. It has also created a competitive environment that has driven down prices, improved features and increased product availability for this segment of the market. This is why hundreds of software companies advertise that their products run on Franklin as well as Apples.

Let us contrast this with the ''open'' approach in the higher-end personal computer world fostered by I.B.M., where multiple computer manufacturers offer compatible machines. Software companies can be assured a large market for their products and cannot be frozen out by I.B.M. Computer stores can find alternative sources of products should they not be an I.B.M. dealer or if the product is in limited supply. And the consumer can find variety, such as portable computers and lower-cost versions.

The consumer buying an Apple or a Franklin does so to get access to software applications. It is our contention that it is not Franklin that is misappropriating the rights of Apple, but Apple that has misused the copyright protection, not to protect their original works of authorship, but their monopoly on the works of others.