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For History's Sake: Paterson v. Little Brown
Wednesday, August 01 2007 @ 04:22 PM EDT

Do you remember the anecdote about the discussion about whether QDOS was derived from CP/M and Gary Kildall, the author of CP/M, suggesting that someone should ask Bill Gates why function code 6 ends in a dollar sign? The author of QDOS, Tim Paterson, was deposed in litigation he recently initiated, and they asked him about that, and now history has its answer, as you can see from this snip from the defendants' motion for summary judgment:
Thirteen years before the Book was published, Mr. Kildall was quoted in a newspaper article as saying: "Ask Bill why function code 6 (in DOS) ends with a dollar sign . . . . No one in the world knows that but me." James Wallace & Jim Erickson, Bill Gates: Of Mind and Money, Seattle P-I, May 8, 1991... In his January 2007 deposition, Mr. Paterson conceded that function 9 was terminated with a "$" sign only "because that was what was in the manual. They published a manual; the manual said put a dollar sign at the end. So I followed the manual." Paterson Dep. at 130:11-131:9.

You may have read about this case, Paterson et al v. Little Brown and Company et al, in The Register. I did, and after reading some of the documents, I decided that for the sake of history, it would be worthwhile to put the docket's main filings up on Groklaw of case number 2:05-cv-01719-TSZ.

At issue in this case was a chapter in the book They Made America, by Sir Harold Evans and published in 2004 by Little Brown, that said this about Kildall: "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." The book also stated that QDOS was a clone of CP/M.

Evans and his publisher got sued by Tim Paterson over it. A suit for defamation, no less, false light and invasion of privacy. You can read the plaintiff's position by reading the Complaint [PDF]. For the defendants' side, you can read the Motion for Summary Judgment [PDF]. The court has now ruled in favor of the defendants. While it is conceivable that there will be an appeal, at this point, this court has decided the history of DOS and Dr. Kildall's role in it. And the case is Exhibit A proving the theory that defamation lawsuits rarely are a good idea.

There is an interesting side story. Dr. Lee Hollaar was an expert for the plaintiff. Here's part of what Hollaar told the court in his expert report:

9. In my opinion, the defendants have taken demonstrably-false statements and quotes from people without first-hand knowledge of the relationship between CP/M and QDOS, put them in a context that compounds their effect with respect to Mr. Paterson's work, and failed to subject the work for Mr. Kildall to the same standards, all to support the thesis of the chapter that Mr. Kildall was the "Edison of computers" who was "ripped off" in part by Mr. Patterson's illegal or immoral activities.

The defense then hired Gary Nutt as its expert to rebut Hollaar, and here's part of his own summary of his expert report:

A. Expert Report Summary

4. Dr. Gary Kildall created the first successful Operating System (OS) Control Program/Monitor (CPM) for a microprocessor.

5. CP/M defined a market that stimulated independent software development, inexpensive development platforms, and the proliferation of inexpensive application programs for inexpensive computers.

6. Dr. Kildall developed the Basic Input/Output System (BIOS) approach to designing small computer operating systems. This design was used in 86-DOS and its descendants.

7. At the time that Mr. Paterson developed the initial version of 86-DOS, he had no credentials for designing an OS, and used Dr. Kildalls CP/M design to direct the implementation of 86-DOS....

11. Sir Harold Evans' use of the term clone was qualified and accurately describes how 86-DOS compared to CP/M.

12. Mr. Paterson is unable to prove that 86-DOS did not copy algorithms, data structures, and other trade secrets and confidential information incorporated in the CP/M program.

Whereupon the plaintiff moved to exclude Nutt's report (for alleged lateness) and his testimony. The court however ruled in favor of the defendants on July 25:

The Court GRANTS Defendants’ Motion for Summary Judgment, docket no. 13, on each of Plaintiff’s claims. This case is dismissed.

The Register article explains the overview well. In granting their motion for summary judgment the judge explained his reasons for ruling as he did, and here is one of the fundamental ones -- truth is a complete defense to any defamation claim:

Summary judgment plays a “particularly important role” in defamation cases:
Serious problems regarding the exercise of free speech and free press guaranteed by the First Amendment are raised if unwarranted lawsuits are allowed to proceed to trial. The chilling effect of the pendency of such litigation can itself be sufficient to curtail the exercise of these freedoms.

Mark, 96 Wn.2d at 485 (internal quotations omitted). Defendants urge that Plaintiff cannot present a prima facie case for defamation and ask the Court to grant summary judgment in their favor.

1. Truth and Privilege.

It is for the Court to determine whether a statement is capable of defamatory meaning. Hoppe v. Hearst Corp., 53 Wn.App. 668, 672 (1989). “Defamatory meaning may not be imputed to true statements.”Lee v. The Columbian, Inc., 64 Wn.App. 534, 538 (1991). Put differently, the truth is an absolute defense to a claim of defamation.Ward v. Painters’ Local Union No. 300, 41 Wn.2d 859, 865 (1953).

[A] defamation defendant need not prove the literal truth of every claimed defamatory statement. A defendant need only show that the statement is substantially true or that the gist of the story, the portion that carries the “sting,” is true.

The court carefully considered the book's claims and decided they were not actionable. In some cases, he found that the plaintiff had overstated matters. I haven't had time to read the documents yet carefully enough to even have a personal opinion on the computer history, except to say that the court has ruled as it has.

Personally, I think folks *should* build on each others' software and share and share alike, because software is knowledge, and shared knowledge is a good thing. That's why I'm a GPL girl myself. I know others disagree, but in any case, one thing I'm sure of: history has value in its own right. For that reason, I am providing the significant documents so historians will have them to work with. Sir Harold Evans, in his deposition said, "History is a process of constant revision."

What I do have an opinion on is defamation lawsuits. They usually do backfire, just as this one has. Why? Because they're hard to prove, unless you can prove something was untrue, negative, and in the case of a public figure deliberately or negligently untrue. So all you accomplish is that more people hear about the very claims you wish had never seen the light of day. But there's another vital issue in this case, one that the court was sensitive to. I'd like to highlight footnote 13 in the motion for summary judgment:

13 Under the law of Washington, summary judgment is also designed to serve the important First Amendment goal of eliminating the chilling effect of unwarranted defamation litigation.... (The public interest is best served by expeditious disposition of cases raising First Amendment issues.).

Amen. And happily, the court agreed. Bottom line? People are sometimes too quick to sue:

The law of libel does not make actionable communications that are merely unflattering, annoying, irksome, or embarrassing, or that hurt[] only the plaintiffs feelings. 1 Robert D. Sack, Sack on Defamation § 2.4.1 (3rd ed. 2005). Additionally, [d]efamatory meaning may not be imputed to true statements.... The record shows that many of the statements at issue are indisputably true, supported by sworn and other statements by Mr. Paterson himself...

To capture all the fine points of the case, you will need to read the order in full. You can read an article by Dr. Kildall on the history of CP/M on this Digital Research page, if history interests you. Here, then, is the docket, with the main documents.

*************************

History

Doc.
No.
Dates Description
1
Filed: 10/11/2005
Entered: 10/13/2005
Complaint
Docket Text: COMPLAINT FOR DAMAGES FOR DEFAMATION AND FALSE LIGHT INVASION OF PRIVACY against defendant(s) David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans (NO Summons(es) issued) (Receipt # 320315 paid on 10/12/05) , filed by Tim Paterson, Penny Paterson. (Attachments: # (1) Civil Cover Sheet)(PM, ) Additional attachment(s) added on 10/14/2005: Email request to add new case (PM, ). Modified on 10/14/2005: to add copy of email and receipt number (PM, ).
2
Filed & Entered: 11/02/2005
FORM - Joint Status Report Order
Docket Text: ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT FRCP 26f Conference Deadline is 12/19/2005.Initial Disclosure Deadline is 1/3/2006. Joint Status Report due by 1/3/2006; by Judge Thomas S. Zilly. (GG, )
3
Filed: 11/09/2005
Entered: 11/10/2005
Praecipe for a Summons
Docket Text: PRAECIPE TO ISSUE SUMMONS.Sms (5) in blank issued. (CL, )
4
Filed & Entered: 01/12/2006
Notice of Appearance
Docket Text: NOTICE of Appearance by attorney Bruce EH Johnson on behalf of Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans (Johnson, Bruce)
5
Filed & Entered: 01/13/2006
Order to Show Cause
Docket Text: ORDER TO SHOW CAUSE - Counsel are directed to show cause by JANUARY 31, 2006 why this action should not be dismissed for failure to file a joint status report. (CC, )
6
Filed & Entered: 01/17/2006
Notice of Attorney Association
Docket Text: NOTICE of Association of Attorney by Dietrich Biemiller on behalf of Plaintiffs Tim Paterson, Penny Paterson (Biemiller, Dietrich)
7
Filed & Entered: 01/30/2006
Joint Status Report
Docket Text: JOINT STATUS REPORT filed by all parties. Est. Trial Days: 15. (Biemiller, Dietrich)
8
Filed & Entered: 02/02/2006
Notice of Appearance
Docket Text: NOTICE of Appearance by attorney Kaustuv Mukul Das on behalf of Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans (Das, Kaustuv)
9
Filed & Entered: 02/21/2006
Minute Order Setting Trial Date and Related Dates
Docket Text: MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *15 Days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Jury Trial is set for 9/17/2007 at 9:00 AM before Hon. Thomas S. Zilly. Joinder of Parties due by 5/15/2006; Amended Pleadings due by 3/21/2007; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 3/21/2007; Motions due by 4/20/2007; Discovery completed by 5/21/2007; Dispositive motions due by 6/19/2007; Settlement conference to be held by 7/19/2007; 39.1 mediation to be completed by 8/20/2007; Motions in Limine due by 8/20/2007; Pretrial Order due by 9/5/2007; Pretrial Conference set for 9/7/2007 at 3:00 PM before Hon. Thomas S. Zilly. Trial briefs to be submitted by 9/12/2007; Proposed voir dire/jury instructions due by 9/12/2007; by Judge Thomas S. Zilly. (GG, )
10
Filed & Entered: 05/16/2006
Proposed Order (Unsigned)
Docket Text: PROPOSED ORDER (Unsigned) Stipulated Protective Order. (Johnson, Bruce)
11
Filed & Entered: 05/22/2006
Protective Order
Docket Text: STIPULATED PROTECTIVE ORDER by Judge Thomas S. Zilly. (LT, )
12
Filed: 01/04/2007
Entered: 01/05/2007
Affidavit of Service of Deposition Subpoena
Docket Text: DECLARATION OF SERVICE OF DEPOSITION SUBPOENA upon Harold Evans served on 1/2/2007, filed by Plaintiffs Tim Paterson, Penny Paterson. (LT, )
13
Filed & Entered: 03/15/2007
Terminated: 07/25/2007
Motion for Summary Judgment
Docket Text: MOTION for Summary Judgment by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans. Oral Argument Requested. (Attachments: # (1) Proposed Order Granting Defendants' Motion for Summary Judgment)Noting Date 4/6/2007.(Johnson, Bruce)
14
Filed & Entered: 03/15/2007
Declaration
Docket Text: DECLARATION of Kaustuv M. Das filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans re [13] MOTION for Summary Judgment (Attachments: # (1) Exhibit A# (2) Exhibit B-F# (3) Exhibit G# (4) Exhibit H# (5) Exhibit I# (6) Exhibit J-L# (7) Exhibit M# (8) Exhibit N# (9) Exhibit O-Q# (10) Exhibit R-Z# (11) Exhibit AA-FF# (12) Exhibit GG-HH)(Johnson, Bruce)
15
Filed & Entered: 03/15/2007
Sealed Document
Docket Text: SEALED DOCUMENT Exhibit E to Das Declaration In Support of Defendants' Motion for Summary Judgment by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans re [11] Protective Order. (Johnson, Bruce)
16
Filed & Entered: 03/20/2007
Notice of Motion Re-Noted
Docket Text: NOTICE that the following is RE-NOTED: [13] MOTION for Summary Judgment. Filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans. Noting Date 4/20/2007.(Das, Kaustuv)
17
Filed & Entered: 03/20/2007
Stipulation
Docket Text: STIPULATION AND PROPOSED ORDER Regarding Extension of Certain Deadlines by parties. (Das, Kaustuv)
18
Filed: 03/23/2007
Entered: 03/26/2007
Stipulation and Order
Docket Text: STIPULATION AND ORDER re Extention of Certain Deadlines, by Judge Thomas S. Zilly. Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/18/2007, Motions due by 5/4/2007. (CL, )
19
Filed & Entered: 03/30/2007
Notice of Appearance
Docket Text: NOTICE of Appearance by attorney Nigel Avilez on behalf of Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans. (Avilez, Nigel)
20
Filed & Entered: 04/16/2007
Response to Motion
Docket Text: RESPONSE, by Plaintiff Tim Paterson, to [13] MOTION for Summary Judgment. (Attachments: # (1) Declaration of D. Michael Tomkins # (2) Declaration of Lee Hollaar # (3) Declaration of Tim Paterson # (4) Exhibit A,B, C, F, G)(Biemiller, Dietrich)
21
Filed & Entered: 04/16/2007
Sealed Document
Docket Text: SEALED DOCUMENT Exhibits D, E by Plaintiff Tim Paterson re [11] Protective Order. (Biemiller, Dietrich)
22
Filed & Entered: 04/20/2007
Reply to Response to Motion
Docket Text: REPLY, filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans, TO RESPONSE to [13] MOTION for Summary Judgment (Johnson, Bruce)
23
Filed & Entered: 04/20/2007
Declaration
Docket Text: DECLARATION of Bruce E. H. Johnson filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans re [13] MOTION for Summary Judgment (Attachments: # (1) Exhibit A-D to Johnson Declaration)(Johnson, Bruce)
24
Filed & Entered: 06/05/2007
Notice of Change of Address
Docket Text: NOTICE of Change of Address of Attorney Nigel Avilez. Filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans. (Avilez, Nigel)
25
Filed & Entered: 06/13/2007
Terminated: 07/25/2007
Motion to Exclude
Docket Text: MOTION to Exclude Defendants' Expert Witness by Plaintiff Tim Paterson. (Attachments: # (1) Exhibit A, Stipulation and Order Extending Dates# (2) Exhibit B, Defendants' Disclosure of Expert Witness # (3) Exhibit C, Report of Nutt # (4) Proposed Order)Noting Date 6/29/2007.(Biemiller, Dietrich)
--
Filed & Entered: 06/15/2007
Set/Reset Hearings
Docket Text: Set/Reset Hearings: In-court Hearing/Oral Argument set for MONDAY JULY 2, 2007 at 10:00 AM before Hon. Thomas S. Zilly. (CH)
26
Filed & Entered: 06/25/2007
Response to Motion
Docket Text: RESPONSE, by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans, to [25] MOTION to Exclude Defendants' Expert Witness. (Attachments: # (1) Proposed Order Proposed Order)(Johnson, Bruce)
27
Filed & Entered: 06/25/2007
Declaration
Docket Text: DECLARATION of Bruce Johnson filed by Defendants David Lefer, Little Brown and Company, Time Warner Book Group, Harold Evans Associates LLC, Harold Evans re [25] MOTION to Exclude Defendants' Expert Witness (Attachments: # (1) Exhibit A)(Johnson, Bruce)
28
Filed: 07/02/2007
Entered: 07/06/2007
Motion Hearing
Docket Text: MINUTE ENTRY for proceedings held before Judge Thomas S. Zilly - Dep Clerk: Gail Glass; Pla Counsel: Detrich Biemiller; Def Counsel: Michael Tomkins; CR: Joe Roth; Motion Hearing held on 7/2/2007 The Court hears oral argument from counsel on Defendants' Motion for Summary Judgment, docket [13]. The Court takes the matter under advisement.(GG, )
29
Filed & Entered: 07/25/2007
Order on Motion for Summary Judgment
Docket Text: ORDER by Judge Thomas S. Zilly. The Court GRANTS [13] Dfts' Motion for Summary Judgment. (CL, )
30
Filed & Entered: 07/25/2007
Judgment by Court
Docket Text: JUDGMENT IN A CIVIL CASE/DECISION BY COURT. IT IS ORDERED AND ADJUDGED; The Court GRANTS dfts' Motion for Summary Judgment, docket no. [13], on each of pltf's claims. This case is dismissed.(CL, )


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