Apple Computer, Inc. v. Franklin Computer Corp.

• Decision Date: 30 July 1982
• Docket Number: Civ. A. No. 82-2107.
• Citation: 545 F. Supp. 812
• Parties: APPLE COMPUTER, INC. v. FRANKLIN COMPUTER CORP.
• Court: U.S. District Court — Eastern District of Pennsylvania

545 F. Supp. 812

APPLE COMPUTER, INC. v. FRANKLIN COMPUTER CORP.

Civ. A. No. 82-2107.

United States District Court, E. D. Pennsylvania.

July 30, 1982.

Ronald Panitch, Philadelphia, Pa., for plaintiff.

Manny Pokotilow, Jerome Shestack, Philadelphia, Pa., for defendant.

NEWCOMER, District Judge.

Plaintiff Apple Computer, Inc., ("Apple") moves for a preliminary injunction restraining defendant Franklin Computer Corp. ("Franklin") from using, copying, selling, or infringing in any other way Apple's registered copyrights on fourteen computer programs that are contained in or sold with the Apple II personal computer.

I. The Parties

Apple is a California corporation, acknowledged to be a leader in the field of personal computers. It employs approximately 3,000 people and it has sold almost 400,000 computers. Apple had sales of $335,000,000 last fiscal year. Franklin is a Pennsylvania corporation, formed in 1981, with 75 employees. It has sold fewer than 1,000 computers.

For reasons more fully expressed below I have concluded that there is some doubt as to the copyrightability of the programs described in this litigation. Because of this doubt, I find that plaintiff has failed to show a reasonable probability of success on the merits and for that reason, as well as a failure to show irreparable harm, I must deny the motion.

II. The Works

A. The "Computers"

The two machines in this case are the Apple II, made by Apple Computer, Inc., and the Ace 100, made by Franklin Computer Corporation. Both are generally referred to as microcomputers or personal computers because of their size and their ease of use by individuals and small businesses.

Both computers contain a large flat circuit board, called a "mother board". Mounted on this board, forming the electronic circuitry which is the operating center of the computer, are a number of small integrated circuits or chips. These integrated circuits are described herein and are the focus of this lawsuit.

B. The Integrated Circuits: CPU, RAMs, ROMs, PROMs and EPROMs

Personal computers contain a variety of integrated circuits, which are photo-chemically imprinted silicon chips.¹ Each integrated circuit, or chip, is constructed with a specific size memory or programming capacity. In microcomputers, the capacity of a chip may range from 4,000 bytes (4K of memory) to 64,000 bytes (64K of memory). One "byte" is one cell or one location point for information to be stored in the chip. In turn, on computers like Apple and Ace, each byte has eight "bits" (Binary digIT) each of which specifies the single value of "0" or "1", negative or positive.

Like all computers, both Apple and Ace have a central processing unit ("CPU") which is the specialized integrated circuit that executes binary programs. The CPU does the primary calculations required of all programs and shifts answers to other parts of the system depending upon the requirements of the program controlling it. On both Apple and Ace, the CPU uses a 6502 microprocessor chip which has a 64K storage capacity.

In addition to the CPU, which does the calculations, computers have internal memories that hold information generated within the computer or entered into the computer from an external source like a floppy disk or keyboard. The information may be stored in a permanent or impermanent ("volatile") form of memory. Some chips store information only as long as the machine is on; these are Random Access Memory chips (RAMs). When the power is turned off, the information stored in these chips is lost.

The information to be stored permanently is held in other chips called Read Only Memory (ROMs). Information stored in ROMs is not lost when the power is turned off. Information is stored in a ROM by destroying the fusible links that make up the structure of each byte, creating the equivalent of on-and-off switches arranged according to the specifications of the program to be imprinted in the ROM.²

For all practical purposes, the information stored in a ROM cannot be changed by the user of a computer. As the name suggests, the ROM contains information that can only be read. Nothing new can be added or "written" onto it. Of the 14 "works in suit," four of them are stored on ROMs.³

C. Programs: Software, Interpreters, and Languages

Of signal difficulty in this case is the elasticity of the word "program." A computer program is a set of serial instructions that directs the computer to perform certain tasks. A user does not instruct the operating center of the machine. The user writes programs that are expressed in "high level" languages resembling English. Depending on the circumstances, one or more special machine "programs" will in turn translate or "interpret" those instructions, given by the user, into a form of instruction that can be executed in the circuitry. At the level of the circuitry, programs are expressed in "low level" languages. At the very lowest level, every program is eventually reduced to "an object code," which is expressed in binary (base 2) numbers, a series of zeroes and ones that represent open and closed switches within the computer's circuits.

Object code is the heart of this case. In a crude way, object code that has been etched onto the ROM architecture can be "read" by an expert with a microscope and patience. However, the object code in either its binary form or in the silicon chip form is not designed to be read by humans. It is the machine's language.

At issue in this case are fourteen "programs" expressed in object code. These programs are either imprinted on the Apple's ROMs or the Ace's EPROM or they are enscribed on floppy disks which allow for easy storage and transmission to the computer's RAMs when the programs are needed.

All of these programs are "operating" programs as opposed to "application" programs. The distinction is based on the breadth of use and the function of the program. An application program has a specific task, ordinarily chosen by the user, such as to maintain records, perform certain calculations, or display graphic images. Application programs are normally written in high level languages which are designed to be easily used by the unsophisticated. An operating program, by contrast, is generally internal to the computer and is designed only to facilitate the operating of the application program.

D. Compatibility and Operating Systems

An operating system that consists of a variety of separate operating programs is in a sense a part of the machine; it provides the functioning system that allows the user to progress in an orderly fashion as he moves through the physical process of keying information into a computer. The operating system instructs the machine how to use this information and receives the solutions to the problems posed. Once in the machine, either permanently implanted as a ROM or entered from a floppy disk, an operating system is very nearly "transparent"; the user is not aware of the work and order of the work it is processing.

Because of the complex relationship between the physical elements of a computer (keyboard, screen, printer, disk drives, etc.) and the logic of the system that is both built into the CPU and added through high level languages, operating systems are critical to personal computers. Without them, every operation would require an impractical number of steps before it could be executed.

The operating system is configured to satisfy the requirements of the physical environment of the computer, especially the structure of the CPU, and to provide easy compatibility with software written in the general market place and with peripherals made by other manufacturers. The present litigation occurs because the Apple computer has stimulated the creation of an extraordinary amount of software and peripheral hardware that is only compatible with Apple. Most of this software and peripheral hardware was designed with Apple's operating system in mind, which means it will not work, except with great difficulty or restructuring, on machines other than those with the particular configuration of operating system and CPU that is found in the Apple.

Amateurs and small businessmen who buy small computers, like Apple, buy it not for its quality, although quality is not unimportant, but for the software and peripherals that are compatible with it. Franklin has "designed" a computer that is Apple-compatible. Essentially that means that the Ace was designed to run most, if not all, of the software written for Apple by hundreds of entrepreneurs and to accept the peripherals manufactured by many others. Apple contends in this suit that Franklin has "stolen" the logic and structure of their system. Franklin contends that Apple has deprived non-Apple owners of the opportunity to take advantage of the wealth of Apple-compatible material that exists in the market place. Franklin's argument is that it has created not an Apple-compatible system but rather a system compatible with Apple-compatible software which must of necessity share a great deal of the essential structure of Apple, especially of the structure of Apple's operating system.

E. The Works in Suit

The works upon which this action is based are in object code, stored in Read Only Memory (ROM) or on floppy disks.

(1) Autostart ROM

The Autostart program, stored in ROM, is a collection of low-level subroutines ("booting" routines) that initiate registers and other circuitry in the Apple II when the power is turned on. It also performs a variety of hardware-oriented functions during operating, so that the machine can accept keystrokes and generate character graphics for video display.

(2) Applesoft

The Applesoft program is Apple's version of BASIC ("Beginner's All-purpose Symbolic Instruction Code"), a higher level programming language that was originally developed at Dartmouth College. The Applesoft program is stored in ROM and is an interpreter program that processes BASIC statements, one...