Tabberone is pronounced tab ber won |
|
The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
Source: http://www.vmyths.com/column/1/1997/11/24/ August 30, 2008 - content has not been altered. Links have been removed. |
Truth About Computer Security Hysteria |
Stop arguing over SymantecsRob Rosenberger, Vmyths co-founderMonday, 24 November 1997 IT CAME AS no shock to the antivirus world when Symantec sued McAfee in April 1997 for alleged copyright infringement. Industry watchers didn't pay much heed because ... well, because those two vendors fight all the time. Just another chapter in the Hatfield-McCoy saga, everyone thought. McAfee typically wins these battles — and wins them easily. But not this time. The normally placid Symantec switched to an anything-goes fighting style, using its well-oiled propaganda machine to fight McAfee in the media as well as the courtroom. This change in tactics caught industry watchers (including myself) off-guard.
PrologTHE STORY ACTUALLY begins in 1996 with what seems like an unrelated event. A company called Trio Systems discovered Symantec illegally used its C-Index/II code in various products. Caught with its pants down in a copyright violation, Symantec asked to negotiate a license ex post facto.[1] Trio readily accepted.As part of the agreement, "Symantec represented and warranted that it had used C-Index/II only in [Norton Administrator for Networks and Norton Desktop Administrator]." Symantec also "expressly agreed" in the license "that any use by it of C-Index/II in any other software program would constitute intentional infringement of Plaintiff's copyright." Also in 1996, McAfee launched a media assault against Symantec for what it called "false and misleading advertising." McAfee's press release demanded no less than a worldwide recall of Norton AntiVirus. Symantec issued a rather wimpy response to this attack. (Score a victory for McAfee.) Trio Systems surfaced again in February 1997 when they revoked Symantec's license under the "bad faith" clause. According to the lawsuit they later filed:[2] |
20. In February, 1997, Plaintiff discovered that Symantec had blatantly lied about its use of C-Index/II. Plaintiff discovered that Norton Utilities, Norton
Your Eyes Only and pcAnywhere, all important Symantec software programs, incorporated copyrighted portions of C-Index/II. Each of these three
programs is a pre-existing software product of Symantec that is not covered by the Replacement License Agreement. None of these programs was
developed for NAS, has the required NAS functionality, or was derived from NAN or NDA. By using C-Index/II in each of these programs without
license or permission from Plaintiff, Symantec is intentionally and willfully infringing Plaintiff's copyright.
21. On February 26, 1997, Plaintiff gave notice to Symantec that it had materially breached the Replacement License Agreement and was willfully infringing Trio's copyright in C-Index/II. On the basis of Symantec's deception and material breach of the Replacement License Agreement, Plaintiff elected to terminate the Replacement License Agreement and notified Symantec that it must cease and desist from further use of Trio's copyrighted software. To date, Symantec has refused to comply and continues to manufacture, sell and distribute software programs that contain unauthorized copies of Trio's C-Index/II software. 34. Symantec has in the past copied and infringed upon, is presently copying and infringing upon, and is threatening in the future to continue copying and infringing upon, Plaintiff's copyrights to C-Index/II. Plaintiff is informed and believes, and on that basis alleges, that C-Index/II unlawfully appears in the following Symantec software products, among others: (1) Norton Utilities, (2) Norton Your Eyes Only and (3) pcAnywhere. 35. Unless this Court restrains Symantec from further commission of said acts, Plaintiff will suffer irreparable injury for which Plaintiff will be without an adequate remedy at law. Plaintiff is, therefore, entitled to a temporary restraining order, preliminary injunction and permanent injunction restraining Symantec, its officers, directors, agents, employees, affiliates and subsidiaries, and all persons acting in concert with them, from engaging in further acts in violation of the copyright laws. |
Adding to Symantec's grief in early 1997, McAfee's researchers discovered an obscure security flaw in the Norton Utilities package. Instead of notifying Symantec, McAfee chose to notify only the media. They even wrote a blatant demonstration program so Windows Sources magazine could include it as part of a fear-inducing online story — another effective media assault against Symantec. Symantec felt McAfee should have notified them instead of helping the media write scary stories about a trivial flaw. Product manager Tom Andrus told Associated Press: "we were taken aback that they would go to the press, create something akin to a virus and then basically show the world how to do that." Symantec also berated Windows Sources for providing McAfee's code to any malicious hacker who wanted it. Editors pulled McAfee's blatant demo from the Windows Sources website the next day. Symantec quickly released a software patch to calm the nerves of frightened customers — and distributed an extremely polite press release announcing the patch. (Score another victory for McAfee.)
Symantec goes on the offensiveSYMANTEC STRUCK BACK on 23 April with an eye-popping press release perfectly timed to damage McAfee's quarterly earnings call. Symantec accused them of "stealing code" and demanded a U.S. recall of McAfee's PC Medic software. (The "vital code" in question amounted to 30 lines.) They also filed suit to garnish all profits from the sale of PC Medic.
Symantec struck again on 21 July with another perfectly timed media attack, damaging McAfee's next quarterly earnings call. A blistering press release claimed they discovered "copyright infringement" (101 lines of code this time) in VirusScan. McAfee followed the next day with a press release announcing a counter-suit for "defamation, business interference, [and] contempt of court." McAfee vice president Peter Watkins figured the two firms would battle in court over Symantec's claims. He paid for a "clean-room rewrite" because it would cost less in the long run to discard 131 lines of disputed code. Symantec might exploit it as a "tacit admission of guilt," but Watkins' decision offered McAfee a tactical legal advantage.
Symantec Japan joins the fightSymantec's Japanese division joined the fracas the same day McAfee announced its counter-suit. A 22 July press release — intended neither for U.S. nor European distribution — trumpeted how Symantec won its copyright infringement lawsuit against McAfee. In it, Symantec proclaimed: |
Symantec Won A Trademark Infringement Lawsuit
...After filing the lawsuit, a McAfee employee confirmed that a McAfee software programmer retrieved ... Norton CrashGuard from Symantec's website and [used part of it] in McAfee's software... Enrique Salem, [Symantec's chief technology officer], says "...we are happy because the court ruled in our favor and McAfee confirmed that it stole [the software]."[3] |
According to McAfee, Symantec's Japanese division issued a different press release on 25 July which also said they won the lawsuit. McAfee — again
for reasons unknown — remained quiet in the U.S. & Europe regarding this event.
Symantec continued to promote its untrue claims for another two weeks. They finally appeared in court on 12 August with a "correction notice,"[4] and McAfee's lawyer confirmed the offending press releases disappeared from Symantec's website the night before. Given these new developments, "the judge suggested either withdrawal of our [lawsuit] or a negotiation and settlement between the parties" if the correction notice itself needed correcting. "It has become difficult to maintain [the lawsuit]," the lawyer notified McAfee, because "its aim was substantially achieved, and we will have to withdraw it eventually." McAfee could still sue for libel & defamation, though.
It gets worse for McAfeeON 21 AUGUST, McAfee issued a press release announcing their flagship product "does not use alleged Symantec code." Also of importance, they declared the code in question actually resides "in the public domain," meaning anyone can use it for free. (McAfee's claims remain unsubstantiated.)Watkins decided the company would acknowledge a faux pas in the 21 August press release. It admitted "that a recently hired ex-Symantec employee... may have had [intellectual property belonging to Symantec]... None of his research has been used in VirusScan or any McAfee product." Watkins included this information because he didn't want Symantec to disclose it first as media bait. It didn't help — Symantec countered with an inflammatory press release (issued the same day) claiming McAfee "admitted that its products contain code misappropriated from Symantec ... From the wording of McAfee's press release, it appears that McAfee employees may have [also] engaged in illegal destruction of evidence relevant to the ongoing dispute." Watkins didn't expect to see such a wild press release on his desk when he returned to work the next morning. Reporters around the world latched onto Symantec's tirade, writing stories with headlines making it sound like McAfee pled guilty in court. (Many of these "breaking stories" in reality plagiarized Symantec's press release.) The next day, McAfee distributed an eye-popping press release of its own announcing a $1 billion lawsuit for defamation & trade libel. "McAfee's suit is in response to the latest press release from Symantec which blatantly lies about the facts of on-going litigation between the companies. The most egrious [sic] lie in Symantec's latest release ... is that McAfee has admitted copying code. McAfee has never admitted it has ever used copied code." Stories filed by Dow Jones News Service say both companies' stocks dropped in value when Wall Street caught wind of it.
McAfee and Symantec victorious?
Symantec's press release, on the other hand, turns an obvious setback into an amazing-sounding victory. It does not describe the lawsuit in question. It does not mention any apology to McAfee. And the "unilateral" adjective makes it sound like McAfee dropped a frivolous case.
Symantec fires another volleySymantec slapped McAfee in the face again on 22 September with yet another press release. This time, they announced a judicial order forcing McAfee to "preserve evidence" in the case. "The judge also ordered McAfee to make available to Symantec all computer hard disks in all research groups in which that employee worked, to refrain from making any changes to any of those disks, and to respond to Symantec's discovery requests on an expedited basis."Newsbytes reporter Bob Woods filed a newswire about Symantec's claims on the morning of its release. He noted "McAfee officials did not make themselves available for comment to Newsbytes by the early edition deadline." McAfee's spokeswoman returned his call a little too late — and Woods filed a different newswire the next morning: |
McAfee Associates [NASDAQ:MCAF] told Newsbytes Monday afternoon that facts detailed in a press release issued by Symantec Corp.
[NASDAQ:MCAF] [sic] early Monday morning actually took place a month ago, although the release seemed to indicate that the actions just took place.
In the release, Symantec said a magistrate judge ordered McAfee Associates to "preserve evidence" in the copyright infringement case Symantec filed against its anti-virus rival. Symantec also said the judge ordered McAfee to produce computer disks that may be involved with the case. McAfee spokesperson Jennifer Keavney told Newsbytes that her company handed over evidence in the case last August, including computers that "had been attached to" an employee's home computer that contained code McAfee claims was from a public source. But Keavney said a court denied Symantec's recent request for access to additional computers.... |
The judicial order seems to back McAfee's claims. The first paragraph says Symantec filed "an ex parte motion" to which McAfee "filed an opposition
to this motion and Symantec filed a reply. Having reviewed and considered all documents submitted by the parties..."
Popgun-wielding McAfee fires backMcAFEE FINALLY RETALIATED on 23 September with a press release titled "McAfee Market Dominance Prompts Symantec Dirty Tricks":[6] |
A history of lost market share, slow growth, and poor product execution, has led Symantec (NASDAQ: SYMC) to embark on a campaign of meritless legal
actions and false press releases in an attempt to slow McAfee Associates' (NASDAQ: MCAF) industry leading growth. Symantec's most recent action —
a news release which once again failed to accurately portray a court ruling — is just the latest attempt by Symantec to mask business, market share and
product failures.
Symantec claimed this court ruling as a victory when in fact the court adopted McAfee's proposal and denied Symantec's primary request. This is just the latest in a string of falsehoods Symantec has distributed about ongoing litigation between the companies. Other ridiculous examples of Symantec untruths abound... |
This press release probably did little to improve McAfee's media image. Three computer industry
reporters[7] dismissed it as typical spin control. "I like McAfee," one
admitted, but "I probably wouldn't read this thing beyond the first sentence."
Déjà vu: McAfee and Symantec victoriousReuters reporter Josephine Ng filed an interesting newswire from Singapore on 2 October titled "Symantec sees favourable result in suits." Asked about an upcoming pre-trial hearing, Salem predicted the judge would order McAfee to stop shipping products containing disputed code.Lawyers faced each other on 3 October (in the U.S. this time) at a pre-trial hearing watched closely by the media. Judge Ronald Whyte denied Symantec's request for a nationwide product recall, but he did authorize a temporary injunction on McAfee's use of disputed code as Salem had predicted to Reuters. However, new product versions already contained clean-room code thanks to Watkins' tactical decision. The injunction amounted to nothing. McAfee filed a typical motion asking for a summary dismissal of the case. Judge Whyte refused. Symantec tacked another accusation onto the lawsuit, this time accusing McAfee of stealing "trade secrets." They also wanted to dispute the "cleanliness" of McAfee's rewritten code but the judge told them to file a separate pre-trial motion. Speaking later in an interview, Watkins said he would swallow the cost of another clean-room rewrite if necessary.
Symantec temporarily avoids the mediaSYMANTEC QUIETED DOWN after 9 October — possibly due to media pressure created by this investigative report. A sidebar titled "Rosenberger's prediction" said readers should "expect Symantec to issue an important anti-McAfee press release on, or just before, 20 Oct 97, the scheduled date for McAfee's next quarterly earnings call."Symantec proved the prediction wrong. They quietly executed important legal maneuvers during this timeframe:
Symantec filed another motion two days later to dismiss the $1 billion defamation lawsuit, calling it "an improper attempt to prevent Symantec from commenting publically [sic] on Symantec's copyright and trade secret suit against McAfee." (A court will hear these arguments as well on 13 January.) Symantec again decided not to issue a press release. Symantec finally launched an attack on 24 October called "The Facts Behind Symantec's Litigation." This time, they offered scanned images of documents related to their case.[8] Who actually owns the disputed code?SYMANTEC HAS NOT proven it owns the 131 lines of disputed code despite their adamant claims to the contrary. The 6 October judicial proclamation says "there is nothing overt in the code that indicates who wrote the code and [Symantec's expert witness] does not know who at Symantec wrote the code," if anyone.
The 'First Code Block' (30 lines)
The 'Second Code Block' (101 lines) "Based on the evidence presented," Judge Whyte continued, "the court finds that Symantec has sufficiently demonstrated that [McAfee's employee] had access to" Symantec's copy of the Second Code Block, thereby justifying a temporary injunction.
Symantec's claim of "irreparable harm" Symantec filed another pre-trial motion for a nationwide recall, this time claiming PC Medic "is in fact derived from [Symantec's] Crashguard." The court will hear arguments on 19 December. SummaryIT SEEMS IRONIC for Symantec to sue McAfee over copyright infringement and theft of trade secrets when they still need to settle a case against them alleging copyright infringement and deceptive practices. Still, you can chalk up an incredibly one-sided media victory for Symantec.
McAfee faces other hurdles as well. Symantec made only a token effort to notify people who received false press releases last July. More preliminary hearings take place in December & January; the actual trial may start next September. Symantec shows no signs of giving up this fight — and McAfee knows it can only "win" by forcing a draw. These important questions remain unanswered:
Footnotes
[fifth edition] |
General Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
Corporate Lawyers |
Definitions |
Federal Court Cases Alphabetically | by Federal Circuit | by Subject | by Court Quotations |
Federal Statutes Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22
|