Franklin Advert - August 1982

The Franklin 1200 was an update of Franklin's earlier 1000 model, and both were unofficial Apple II clones. The company always referred to its machines with the acronym ACE, which it's tempting to think might secretly have meant "Apple Computer Equivalent".

The 1200 model came with built-in 5.25" floppy drives and an additional Zilog Z80 processor, something that would normally be an add-in extra for the Apple. The advert makes much of how you'd have to get a load of expensive extras for the implied Apple II to match the specification of this machine.

The Apple II often gets credited with being the first and most successful "personal computer", however it was neither as the Commodore PET was the first to be unveiled at the beginning of 1977, whilst Tandy's TRS-80 was initially more successful than either Commodore or Apple.

What saved the Apple, and its parent company's fortune, was the advent of VisiCalc - the first practical spreadsheet program, and which might have been written for DEC's PDT, had not Dan Fylstra - the founder of VisiCalc's publisher Personal Software - persuaded Dan Bricklin to target one of the 1977 Trinity "personal computers" instead.

Fylstra had previously programmed on the 6502, which favoured either the PET or the Apple, but he particularly liked Apple's "marketing strategy and prowess" and also saw an opportunity to work with Apple reseller Computerland, and so the Apple II was chosen. Fylstra lent Personal Software's own Apple II - purchased directly from Steve Jobs - to Bricklin so he could develop his spreadsheet ideas^[1].

Visicalc rapidly became the first "killer app" after its release at the end of 1979, which meant that buyers were now seeking out the machine that could run it, rather than the other way around.

Apple's success in this area was cemented by its exclusive licence for Visicalc for its first year of production, a move which helped the company go from revenues of $800,000 in 1977 to nearly $48 million in 1979^[2].

The ineviable side effect of all this was that the Apple II rapidly became the most attractive machine to clone or to write other business software for.

An advert from Franklin showing its earlier ACE 1000 model, and how it had improved since the year before with extra interface cards and - as befitting a clone - a clone of VisiCalc, called ACECalc, thrown in. From Creative Computing, January 1984

Franklin was one of those companies, but it soon came under legal fire for its cloning of the Apple and by September of 1983 had been defeated in a court case which set out to prove that it had stolen its AppleSoft ROM operating system software from Apple, although the company vowed to fight on at appeal^[3].

It wasn't just the software that Franklin had copied, as according to Steve Wozniak - designer of the Apple I and II - when he first saw the Ace, he felt that Franklin had even copied the circuit-board layout, right down to how the chips were arranged. According to Stephen Arrants, writing in January 1984's Creative Computing:

"When Franklin claimed 'compatible' most people at Apple felt that compatible didn't mean 'copy'. It was seen as [just] another product for the market."

Wozniak, who had been speaking at CompuServe's Apple Special Interest Group in October 1983, pitched in about the lawsuit, saying:

"Programs belong to who wrote them, even the Op-Sys code and the like, and have value. You can't take another's work, 'Xerox' it and sell it. I found out that it only takes two people to start a company: a Xerox operator and a lawyer^[4]."

Franklin had originally claimed that as software was not generally printed out it couldn't be copyrighted and even won a temporary injunction allowing it to continue producing^[5] and selling its Ace, in which time it managed to shift an estimated 100,000 computers generating sales of $70 million in 1983.

The Philadelphia Federal Appeals Court eventually disagreed and wrote "The medium is not the message", paving the way for the copyright protection of all software in whatever form^[6].

By way of settlement, Franklin had to pay Apple $2.5 million, but in return it got a grace period in which to develop some alternative products that didn't infringe Apple's copyright^[7].

Industry watchers noted that the whole thing was developing in to a test case in whether software burned in to silicon was covered by the copyright laws which already applied to software in other forms (in particular, print), although many saw Franklin as doomed whatever the final outcome of any further appeals, as all the litigation would make dealers too scared to stock Franklin's machines.

This probably didn't comfort Bill Sydnes - engineering manager of the IBM 5150 PC project - who had just moved to Franklin after 18 years with Big Blue^[8].

Sydnes had been the first person that "father of the PC" William Lowe recruited when IBM set up the PC project at its Entry Level Systems (ELS) offshoot in Boca Raton, Florida.

He, and the rest of the small team which came to be known as the Dirty Dozen - a sort-of in joke as there were thirteen of them (coincidentally just like the advert) - was tasked with creating the 5150 PC in a matter of months.

Luckily, Sydnes had previous form for sleeping on or under his desk and not eating until his projects were finished - all amply demonstrated previously on the ultimately-aborted 5120 computer, which he had steered from conception to production in only 90 days.

Sydnes would eventually leave IBM during the PCjr fiasco, a machine which he was also managing, and after Franklin went bankrupt would eventually end up at Tandon, along with former IBM staff Dan Wilkie and HL "Sparky" Sparks^[9].

In the end, Franklin and its cloning of the Apple and the law suits that flew around helped set the precedent both for the copyright of software but just as importantly the right to reverse-engineer to reproduce the behaviour of other systems.

Apple eventually pushed Franklin and all other Apple cloners, including later companies that produce licenced versions of Apple machines, out of the market, with the company filing three law suits in the late summer of 1983 alone, against Jade Computer Products, Cosmic Computers Unlimited and Ironsides Computer Corp, all of California and claiming patent infringement and unfair competition^[10].

However, none of this is yet worrying the look-a-like Ben Franklin in the advert, with his brown bag of 18" sub rolls.

Attack of the Apple Clones

Apple continued its action against "rotten Apples" throughout 1983, but its various legal moves didn't always go its way.

In December 1983, Apple failed to stop the selling of an unofficial Taiwanese clone of the Apple II in Australia, when a court ruled that the two machines - The Wombat and the Apple II - were "clearly distinguishable by their names and that the Wombat distributor was not guilty of misrepresentation"^[11].

Apple appealed against the Wombat ruling, which had also turned on the same assumptions as in Franklin's initial victory that copyright law "designed to protect literary works" couldn't be used to protect computer software - despite the fact in this case that the Taiwanese-made Wombat's ROM was virtually identical to the Apple one and had clearly been copied.

The previous ruling was eventually overturned, which provided relief (at least to Apple) not just in Australia but around the world, as the newly-established legal position was now that copyright extended to software both in source code as well as compiled form.

Also providing something of a disincentive to potential distributors of unofficial clones, the Wombat's re-seller, Computer Edge, was also sued under the Australian Trade Practices Act.

The court decided in this case that advertising Apple II compatibility and copying Apple user manuals did not actually imply an endorsment by Apple, a practice which Trading Standards in the UK had already successfully prosecuted as it essentially constituted counterfeiting.

Also in the UK, Chiltern Electronics was feeling the heat and decided to drop the Unitron 2200 it was importing from the Far East.

This particular clone had even been reviewed in March 1984's Practical Computing and was considered well made and well specced.

It was also less than half the price of an equivalent Apple II, but its BASIC was a straight copy and even the reference manual contained photographic copies of illustrations from Apple's original manual^[12].

Meanwhile Franklin, which had been operating under Chapter 11 bankruptcy protection for a while, eventually threw in the towel after it failed to find a buyer or a merger partner.

It announced that it was liquidating its assets and ceasing operations at the end of 1984^[13].

Despite some early litigation successes, Apple was still having to fend off clones well into the Mac era, as the rumour swirling around 1989's MacWorld was that Taiwanese company Akkord Technologies was actually close to building a "legit" Mac clone, having already released a "semi clone" on Christmas Day 1988.

The crucial difference came down to the Mac's ROM, with Akkord insisting that it had built a clone of which was "legally compatible", having apparently designed it in a clean-room environment.

The cloned ROMs were then due to be submitted to US legal testing and approval before bringing out the full clone machines.

Meanwhile, it was already shifting its semi-clone machines for under $1000.

These were essentially just motherboards in cases which left the buyer to source their own official Mac ROM, but this wasn't difficult as they were apparently plentiful enough in major markets.

Cloning the ROM itself was said by Apple to be "impossible", but as was shown time and again - much later - with the jail-breaking of iPhones and the like, manufacturers should never say never.

Personal Computer World seemed to consider the whole issue as a Good Thing for competition as, although Apple was likely to fight the clones all the way, a clean-Mac clone laptop for $2,000 compared favourably to what was thought to be a price tag of $5,000 for Apple's first laptop, due later in 1989.

Personal Computer World suggested that this might "make Apple lower its prices and become more competitive in the Mac market"^[14].

Fat chance.

The look-and-feel wars

Perhaps traumatised by its long fight against clones of its hardware, Apple was also becoming very sensitive about its Macintosh operating system, or more particularly about other companies copying its look-and-feel.

This came to a head in the May of 1988 as it launched legal action against Microsoft and Hewlett-Packard, where it alleged "copyright infringements and unfair competition" over Microsoft's Windows 2.03 and HP's New Wave - a badged version of Windows produced with Microsoft's consent.

The assertion was that the two products got "too close to the look and feel of the Macintosh user interface, and that they amount to unauthorised derivative works in violation of Apple's copyright", a claim which Microsoft countered by pointing out that it already had a 1985 agreement with Apple for Windows.

Naturally, Apple reckoned that this was only valid for "an earlier version".

It seemed clear that Apple's lawsuit was not really targetted at HP, but was actually aimed at Microsoft, given that the rumours around Silicon Valley were that Bill Gates had already started discussions about badging New Wave as a Microsoft product.

Apple's fear was not really about HP bringing New Wave out, although that was a threat, but that if Microsoft released it as its own it really would find its way into every part of the business computer world, leaving Apple with nothing to differentiate itself.

It was suggested by Tim Bajarin of Personal Computer World that Apple's move was an attempt to both stop New Wave and to give it "time through the courts system to add new features to its own operating system"^[15].

Bill Gates of Microsoft was clearly not impressed with the law suit as he had apparently privately suggested that "somebody had been up to dirty tricks" before swiftly filing a counter-suit claiming that Apple had misled people.

This boiled down to suggestions that Apple had misled the US Copyright Office when it claimed that Apple was the sole author of the Macintosh user interface (it wasn't, but more on that below), and that it had also misled the courts when it chose a screenshot from NewWave which had been specially tailored to look more like a Mac.

Microsoft, which was very much siding with HP against Apple in this case, also stuck the boot in when it announced an agreement with HP to port its Excel spreadsheet onto NewWave - a move which Guy Kewney of Personal Computer World reckoned would be viewed as outright treachery by Apple, as it had come to see Excel as "the Mac spreadsheet which will convince [PC] Lotus users that they need a Mac".

Kewney reckoned that this antognism was very much Microsoft's plan - a warning to Apple that its support for the Mac platform wasn't unequivocal^[16].

It was suggested that perhaps another target of this action was IBM's Presentation Manager - the windowing system atop Big Blue's recently-launched OS/2 - which being based upon Microsoft's Windows was essentially another "infringing" operating system, but which at the time might have been considered more of a direct threat to Apple.

Although OS/2 had been out for around a year, Presentation Manager had still not yet been released and third-party OS/2 software was only just starting to appear.

So it was the perfect time to "throw a spanner in the works" and was perhaps also the safest way to sow Fear, Uncertainty and Doubt over the future of OS/2 without going head-to-head with IBM, what with its massive team of lawyers and very deep pockets.

As Practical Computing pointed out, this was all somewhat hypocritical, as whilst Apple was touting the value of open industry standards, including its own Open Architecture Systems Integration Strategy, or Oasis - a set of definitions of its current and future projects which were meant to promote integration between various systems - it was also trying to agressively protect its own proprietory Macintosh operating system.

The whole thing was essentially a continuation of a long-running battle about the Macintosh's look-and-feel that by the end of 1985 had earned Apple a reputation as one of "the most litigious companies that the computer industry has ever spawned"^[17].

Back then, the target of its ire was Digital Research's GEM - the Graphical Environment Manager - in an action which to Martin Banks, writing in January 1985's Personal Computer World was "bordering on the petulant".

DR's GEM was perhaps especially frustrating to Apple as because it had been written for the PC market, rather than Macs, it was clearly not infringing any direct software copyright, which left Apple only able to take action over the look and feel.

Apparently, this rested on a precedent set in Atari and Bally-Midway vs. Magnavox over the latter's cloning of Pac-Man, which boiled down to "stand ten feet away and squint at it", and if it looked the same then it probably was. Martin Banks was not impressed with the whole thing, suggesting that he should:

"now sue my colleague Guy Kewney for writing about computers in 'Newsprint' and, at the same time, for having a beard. At ten feet, people have been known to confuse us".

As Banks also pointed out, the whole thing was nonsense as the Mac was a rip-off of the SmallTalk user-interface system produced at Xerox's Palo Alto Research Centre (Xerox PARC) in the early 1970s, which itself was influenced by work at Stanford Research Institute even before that^[18] - a history that Apple rarely seemed to acknowledge.

Perhaps some of those "influences" came from the fact that Apple had employed Alan Kay as its product development consultant in 1984, as it was Kay who had undertaken pioneering work at Xerox PARC on concepts like 1968's Dynabook and on the development of the WIMP interface, as now found on Apple Macintosh computers^[19].

Banks concluded:

"Quite why Apple spends its time suing all and sundry is beyond me. As IBM has shown, the way to grow is to have everyone using the same things (that is, PCs). That way, there is more market for everyone. Apple's current legal activities have been likened, perhaps unkindly, to the writhings of a dying man, lashing out at all and sundry. Certainly, the Apple legal department is one part with something to live for"^[20].

Apple clearly didn't die, but neither did its computers ever achieve much more than a 10% market share of the personal computer market - although unlike IBM, it owned 100% of its 5-15% share. It's a situation it repeated in mobile phones, with Android dominating the market with a share of over 70%, but spread over tens of manufacturers, whilst Apple's iPhone owns 100% of the remaining 28%^[21].

--

The myth and legend of the DynaBook was still alive and well even towards the end of the 1980s, as the industry was on the cusp of producing a machine that would fulfil the ideals of the concept - a computer that was powerful but which was the size of a notebook.

By 1988, several machines were coming close, with Toshiba's T1000 being in the running were it not for its poor screen.

Sinclair's Cambridge Computer Z88 was perhaps the closest of all, only being let down by its choice of the ageing Z80 as its processor, which also meant it lost out on the tons of productivity software now available for DOS-based machines.

There was however competition in the form of the opportunistically-named Dynabook Inc, which had noted everything it could about the original Alan Kay design and which was aiming to have a product out by the end of 1988.

The downside was its likely pricing of around $3,000.

Tim Bajarin of Personal Computer World was optimistic though that the time of the DynaBook was finally upon the industry, saying:

"for the first time we have the screen and battery technology to bring the DynaBook to market. The idea of a powerful electronic notebook may make this type of computer the one that captures the attention of the mass market and finds its way into every school and home"^[22].