Re: Microsoft's OS competitors

S. Keith Graham <vapspcx[_at_]cad.gatech.edu> wrote:
>
> Bruce Hayden <bhayden[_at_]copatlaw.com> wrote:
> >
> > I think technically this is incorrect, and that MS-DOS was
> > a rewrite of DR-DOS. If you will remember the original story,
> > IBM mistakenly flew to Wash. to get a DOS from Gates. [...]
>
> Bruce was recounting a different story in the history of Microsoft.
> DR-DOS was a later product intended to compete with DOS versions 3.x
> or so (circa 1988).
>
> Novell bought DR-DOS, which has since been purchased by Calderra.
> They're now giving away source code freely to the Internet (OpenDOS).
> As part of the purchase, one of the "assets" was a lawsuit against
> Microsoft. The press release about the lawsuit is at:

Well, I may have the gotten the products wrong (though I am not convinced that this earlier product didn't have any relation to DR Dos). However, assuming arguendo that DR-Dos was totally new, Microsoft would still have had a major problem in enforcing any copyright it had in MS Dos, since it apparently never owned the copyright to the version that went into the original IBM PCs, etc. (Since by all indications that version was a direct clone of someone else's original work). DOS 5 and 6 then are essentially derivative works of that someone else's original work, and MS's copyright only extends to the value added.

This may have been sufficient in the late 1980's as look and feel was peaking. However, more recently, post-Feist, and post-Altai, the majority of circuits have adopted something akin to Abstraction/Filtration/Comparison where the old stuff would be filtered out. And worse to MS, the 9th Circuit seems to have taken an even more restrictive view.

The problem with even filtration as to DOS is that the tendency of a plaintiff is to throw a wide net. But then they would be faced with a defense arguing that that element that MS is trying to claim actually belongs to another, etc. In other words, it would (IMHO) be hard for them to isolate (i.e. abstract/filter) sufficient original expression without opening themselves up to at least the introduction of their own inequitable conduct in acquring the original DOS (since that is the thing they would be filtering out). And the introduction of their own unclean hands would surely have biased most courts.

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1997 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com