Paterson v. Little, Brown & Co.

• Decision Date: 25 July 2007
• Docket Number: No. C05-1719Z.,C05-1719Z.
• Citation: 502 F.Supp.2d 1124
• Parties: Tim and Penny PATERSON, Plaintiffs, v. LITTLE, BROWN AND COMPANY, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans, and David Lefer, Defendants.
• Court: U.S. District Court — Western District of Washington

502 F.Supp.2d 1124

Tim and Penny PATERSON, Plaintiffs, v. LITTLE, BROWN AND COMPANY, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans, and David Lefer, Defendants.

No. C05-1719Z.

United States District Court, W.D. Washington, at Seattle.

July 25, 2007.

COPYRIGHT MATERIAL OMITTED

D. Michael Tomkins, Law Offices of D. Michael Tomkins, P.S., Seattle, WA, Dietrich Biemiller, Law Offices of Dietrich Biemiller, Seattle, WA, for Plaintiffs.

Bruce E.H. Johnson, Nigel P. Avilez, Davis Wright Tremaine, Seattle, WA, for Defendants.

ORDER

THOMAS S. ZILLY, District Judge.

This matter comes before the Court on Motion for Summary Judgment, docket no. 13, by Defendants Little, Brown & Co. ("Little Brown"), Time Warner Book Group ("Time Warner"), Harold Evans Associates LLC ("Harold Evans Associates"), Sir Harold Evans, and David Lefer (collectively "Defendants"). The Court has considered the Defendants' Motion for Summary Judgment, docket no. 13, Plaintiffs' Response, docket no. 20, Defendants' Reply, docket no. 22, and the various supporting declarations and exhibits filed by the Parties. The Court heard Oral Argument on Monday, July 2, 2007, and took the matter under advisement. The Court now being fully informed hereby GRANTS the Defendants' Motion for Summary Judgment, docket no. 13, and dismisses Plaintiffs' Complaint.

In 2004, Little Brown & Co.¹ published a series of essays on American inventors and innovators. The essays were written by Sir Harold Evans, and the book was titled They Made America: From the Steam Engine to the Search Engine: Two Centuries of Innovators. Among its profiles of American inventors, the book included a chapter titled "Gary Kildall: He saw the future and made it work. He was the true founder of the personal computer revolution and the father of PC software." Das Decl., docket no. 14, Ex. B (the "Kildall chapter"). The Kildall chapter details the life and work of Gary Kildall, a pioneer in personal computing, and focuses on his creation of the CP/M microcomputer operating system in the 1970s. In recounting the significance of Kildall's life and work, and noting his role as the "father of PC Software," the book considers Bill Gates, Microsoft, the MS-DOS operating system, and their relation to Kildall's CP/M operating system.

Plaintiff Tim Paterson created an early computer operating system called "QDOS," or "86-DOS," that would ultimately be purchased by Microsoft and sold by IBM as "PC-DOS," and by Microsoft as "MS-DOS," or simply "DOS." At issue in this defamation case is Evans' discussion of Paterson's reliance on CP/M in creating DOS. Evans contends, in the Kildall chapter, that Paterson "[took] a ride on" Kildall's operating system, appropriated the "look and feel" of the CP/M operating system, and copied much of his operating system interface from CP/M. Das Decl., docket no. 14, Ex. B at 412-13.

Paterson contends that statements in the book are false and defamatory. See Compl., docket no. 1, ¶ 1.5. Paterson also asserts a claim for false light invasion of privacy based on the book's allegedly false statements. Id. ¶¶ 2.1-2.4.

A. Background: CP/M, QDOS, 86-DOS, and MS-DOS

In 1973, Gary Kildall created CP/M, which stood for "Control Program/Monitor." CP/M was an operating system for microcomputers. In 1974, Kildall founded Intergalactic Digital Research (shortened to Digital Research, Inc., or DRI) to sell his operating system. Das Decl., docket no. 14, Ex. C (John Markoff, Gary Kildall, 52, Crucial Player In Computer Development, Dies, N.Y. Times, July 13, 1994, at D19). By the late 1970s, CP/M had become the standard operating system for the first generation of 8-bit microcomputers, including Intel's 8-bit chip, the 8080, and a competing 8-bit chip, the Zilog Z80 Id., Ex. C, Ex. E (Tim Paterson, The Right Place ... The Right Time, at 33 (unpublished)).

In 1978, Intel introduced its 16-bit chip, the 8086. Das Decl., docket no. 14, Ex. F (Microsoft Press, The MS-DOS Encyclopedia, at 11 (Ray Duncan ed. 1988)). While working at Seattle Computer Products in 1979, Paterson designed a central processing unit ("CPU") card that incorporated the Intel 8086 chip. Id. at 12. During this period, Digital Research was developing a 16-bit version of CP/M, generally referred' to as CP/M-86, designed to run on the Intel 8086. However, CP/M-86 was still unavailable in April 1980, and Seattle Computer Products decided to develop its own 16-bit operating system.

Both Paterson (working on QDOS) and Rod Brock knew that a standard operating system for the 8086 was mandatory if users were to be assured of a wide range of application software and languages. CP/M had become the standard for 8-bit machines, so the ability to mechanically translate existing CP/M applications to run on a 16-bit system became one of Paterson's major goals for the new operating system. To achieve this compatibility, the system [Paterson] developed mimicked CP/80's functions and command structure, including its use of file control blocks (FCBs) and its approach to executable files:

Id. at 12. At the same time, however, Paterson rejected CP/M's system for file allocation, which was inefficient for large disks, and instead used a file allocation table ("FAT"), as Microsoft had done with its own M-DOS and stand-alone disk BASIC. Id. at 13.

Paterson and Seattle Computer Products ("SCP") proceeded with development in two phases. First, Paterson developed a "quick and dirty operating system," nick-named "QDOS," to fill the immediate need for SCP's computer. Paterson Decl., docket no. 20-4, ¶ 4. Second, Paterson worked to create a "much more refined operating system" that would ultimately be made available in single-user and multi-user versions. Id. Paterson's primary objective for his version of DOS was to make it "as easy as possible for software developers to write applications for it...." Id. ¶ 5. He therefore developed an application program interface ("API") that was compatible with CP/M, and enabled the automatic translation of 8-bit programs into 16-bit programs. Id. Translation compatibility was the "primary design requirement" in Paterson's development of an operating system for the 8086. Id. ¶ 6.

1. Translation Compatibility.

In order for Paterson's DOS to be "translation compatible" with Kildall's CP/M, the numbers assigned to any given function, the registers used to pass data, and the memory structures used to pass information all needed to be identical as between DOS and CP/M. See Das Decl., docket no. 14, Ex. A (Paterson Dep. at 50:25-51:5). For Paterson, "[s]tep one was to write down what CP/M-80 did." Das Decl., docket no. 14, Ex. L (David Hunter, Tim Paterson: The Roots of DOS, Softalk for the IBM Computer, March 1983). Translation compatibility allowed programs for Intel's 8080, which ran on CP/M, to run under DOS:

"Once you translated these programs, my operating system would take the CP/M function after translation and it would respond in the same way," said Paterson. "To do this did not require ever having CP/M. It only required taking Digital's manual and writing my operating system. And that's exactly what I did. I never looked at Kildall's code, just his manual."

Das Decl., docket no. 14, Ex. G (James Wallace & Jim Erickson, Hard Drive: Bill Gates and the Making of the Microsoft Empire 185 (John Wiley & Sons, Inc. 1992)).

In a letter to the editor of Microprocessor Report in 1994, Paterson further described the relationship and compatibility between CP/M and DOS, and his reasons for ensuring compatibility between the two:

SCP was a small company with no clout in the industry. To get major software developers to port their products from the 8080/Z80 to the 8086, I decided we had to make it as easy as possible. I had already written a Z80-to-8086 source code translator (hosted on the 8080 and CP/M). My plan was that running an 8080 CP/M program through the translator would be the only work required by software developers to port the programs to the 8086. In other words, the interface used by the applications to request operating system services would be exactly the same as CP/ M's after applying the translation rules. So 86-DOS generally had all the same application-visible elements as CP/M — the function codes, the entry point address, part of the File Control Block layout, etc. I used the 1976 CP/M Interface Guide for my description of the requirements. I also provided some similar commands from the console such as DIR, RENAME, ERASE — although any system would have such functions, regardless of name chosen.

Das Decl., docket no. 14, Ex. J (Tim Paterson, The Origins of DOS: DOS Creator Gives His View of Relationship Between CP/M, MS-DOS, Microprocessor Report, Oct. 3, 1994, Letter to the Editor). Paterson's DOS was designed to mimic CP/M-80 in both "functions available and style of operation":

[t]he structures of 86-DOS's file control blocks, program segment prefixes, and executable files were nearly identical to those of CP/M-80.

Das Decl., docket no. 14, Ex. D (Ray Duncan, Advanced MS-DOS Programming 4 (Microsoft Press 1986)).²

2. Controversy and Commentary.

Even before IBM unveiled the IBM Personal Computer, the industry began to note similarities between DOS and CP/M. Infoworld commented in 1981, even before the release of the IBM PC, that the operating system for IBM's new computer "will be similar to CP/M in many respects." Das Decl., docket no. 14, Ex. S (Infoworld Staff, IBM to Pounce on Micro Market, June 8, 1981). In the years that followed, however, commentary on Paterson's DOS would become increasingly critical, with regard to its similarities with CP/M. As evidence of an ongoing public debate over the so-called "paternity" of DOS, Defendants cite various authors and commentators, as well as writings by Gary Kildall and Tim Paterson.

▪ DOS was a "a CP/M-look-alike operating system." Das Decl., docket no. 14, Ex. U (Kevin Strehlo, Microsoft Expands, Weighs...