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