Season 3, Ep. 14 – TWiTH: Apple sues Microsoft, with Grey Garner
Homogenous design didn’t happen overnight; there’s a long and storied history of operating systems looking the same. And today, Grey and Faith talk about the very first instance of Apple suing Microsoft over design copyrights. While the suit didn’t go Apple’s way, thanks to some missteps by their legal team, it did have ripple effects–like pointing and clicking with a mouse becoming a ubiquitous feature.
(THE FRONTIER THEME PLAYS)
Grey, welcome back to the Frontier Podcast. (Grey: Thank you.) How you doing?
Good to be back.
<Laugh>. Good to be…I’m excited for the day when people feel like, starstruck being here. You know, like when are we gonna be like, famous podcasters? I don’t know. Maybe that can be a goal for next year.
Yeah. You get like, stopped at South by Southwest.
Yeah. “Are you that girl who speaks in a monotone voice and talks about topics you haven’t researched?” “Yes, I am indeed,” <laugh>.
Mm-Hmm <affirmative>. I feel like you gotta have a shtick, some kind of thing.
There’s gotta be a thing. Yeah, I accidentally went viral on TikTok last week. I wrote the Wayfarer about it this week. Basically, I’ve had on my to-do list in my like, personal triage <laugh> section that one of the things I need to learn how to do is TikTok, because it’s 2023, and I’m a marketer, and I just, it’s a platform I need to understand. (Grey: Yeah.) So I’ve had it as like, a to-do, to spend a week just posting like, making a TikTok every day, (Grey: Mm-Hmm <affirmative>.) and just seeing what I can learn, (Grey: Mm-Hmm <affirmative>.) and it’s this whole thing. I listened to an episode of Lenny’s Podcast; it was about like, shipping and your shipping cadence, and I was like, I just need to like, pull the trigger on a bunch of this stuff. So anyway, last week, I made my first TikTok, and then I didn’t log into TikTok for a week, because I’m not a TikToker. (Grey: Right.) And then I remembered that I had posted the TikTok, and I logged back in, and it had blown up. (Grey: What?) Yeah, I’m pretty sure like, the metrics are actual like, official blown-up metrics on TikTok. Like, I looked at my friends who were doing it, and you know, they’re getting like, maybe a couple dozen likes. I had like 40,000 likes.
Yeah! People like, commenting left and right like, it was just like, “Here’s some like, gizmos and gadgets that I’ve purchased for my home office and honest reviews.” You know, I’ve got this like, prickly acupuncture mat kind of thing. I’ve got my kneeling chair. I’ve got like, a hand heater. It’s like, basic stuff, my ergonomic keyboard. And people went bananas. So maybe that’s my shtick. Maybe it’s like, I–
Think you’re an influencer. I’m pretty sure you are.
That’s, yeah, I think so too. I’ve told my family they have to go through my manager now if they wanna contact me. So…
It’s a good call. It’s a good call.
Honestly. It’s best for everybody, I think <laugh>.
Yeah. Little bit of distance.
Yeah. You gotta have those layers in between, (Grey: And guardrails.) you know?
Yeah, for sure. I mean, I remember when I went through that, you know. (Faith: <Laugh>.) With my 40,000 like post.
<Laugh>. You’re…honestly, Grey, there’s a couple people on the team that I would be really unsurprised to learn were actually famous at one point in their lives and maybe are still famous, just like, in a circle I’m unfamiliar with. (Grey: Mm-Hmm <affirmative>.) You are one of them. Regis, absolutely, is one of them. I mean, the data doesn’t lie. Every time he’s on the Frontier podcast, the episode goes viral. So…
Yeah. What’s that kid hiding? <Laugh>.
Yeah, exactly. I think that’s it actually. I think it’s just you and Regis that I think were secretly famous people. So if you’re listening to this, and you wanna do some research, I would be grateful. Find out if my colleagues were famous.
I’ve covered my tracks pretty well, but see what you can dig.
<Laugh>. I guess step one is figuring out what your previous name was. (Grey: <Laugh>.) Anyway, speaking of, you know, law and maybe crime, (PIANO MUSIC FADES IN) we’re talking about a legal case today in “This Week in Tech History” that may be well-known, also may be a surprise to some people.
Noah Wyle as Steve Jobs, via The Pirates of Silicon Valley (1999) (03:54):
You’re stealing from us!
Anthony Michael Hall as Bill Gates, via The Pirates of Silicon Valley (1999) (03:59):
Steve, we’re not stealing from you, so don’t tell me that.
Noah Wyle as Steve Jobs (04:04):
What the hell are you doing, then? What is this that I keep hearing about you developing this, what do you call it? Windows? To compete with us?
Anthony Michael Hall as Bill Gates (04:18):
I’m not doing anything against you, Steve.
Noah Wyle as Steve Jobs (04:20):
Don’t gimme that crap! (FILM AUDIO STOPS)
This case happened in the ‘80s, and so most of what we’ve talked about so far in these episodes have been kind of early, like, mid-’70s random inventions, and patents, and clubs that, you know, now we know had a huge impact on just the shape of the technology industry today. But we haven’t gotten into the ‘80s. And so this is like, a decade beyond where we started with the series, (RETRO SYNTHESIZER MUSIC FADES IN) and it’s safe to assume lots of innovation happened in the years in between and also quite a bit of siloing. So the historical event today is Apple sues Microsoft for copyright infringement. So on March 17th, 1988, after years of working together harmoniously, Apple decided that Microsoft’s newest version of their operating system was taking too many liberties with design elements Apple considered proprietary and took the brand to court over it. Apple and Microsoft’s cozy relationship came about when Apple sent Bill Gates a Macintosh in 1984, allowing Gates and his company to create productivity software for the computer.
Macintosh promotional video (1984) voice actor (05:31):
Macintosh: the computer for the rest of us. (JINGLE SOUND EFFECT) The development of Macintosh by Apple has been paralleled by the work of leading software developers.
Bill Gates, via Macintosh promotional video (1984) (05:43):
It’s a great machine. It’s a step forward in terms of the way it uses graphics and the speed, and this is a machine that a lot of people are gonna be able to afford. That’s a very, very useful machine.
After the official unveiling, Gates requested that Apple license the software to outside parties, primarily because his profit margin with Apple was so large. While Apple rejected the offer, it didn’t stop Gates from continuing to build Microsoft, and in November of 1985, (Grey: <Laugh>.) they released Windows 1.0. Upon release, a number of individuals at Apple sounded the alarm bells, stating that they believed Microsoft had stolen several design elements from the Mac OS. Because of their close relationship, however, Apple decided that they would license the design elements to Microsoft. Unfortunately for Apple, their legal team missed the fact that this license was also to cover all future Microsoft software programs, as well. Imagine being the person who made that mistake <laugh>.
<Laugh>. No longer employed.
No longer employed. And man, what a story. So you can imagine the surprise when Windows 2.0 came out, still utilizing those Apple designs. The main point of contention was the GUI and how users interacted with it. That appearance, based on what the industry calls a “graphical user interface,” in which information appears in windows, and operations are carried out by pointing at objects and menus using a handheld device called a “mouse,” a major selling point of the Macintosh. Apple was big mad about Windows 2.0. They skipped straight past the angry phone calls and threatening letters, and they took windows to court. Unfortunately for Apple, a judge ruled that 179 of the 189 contested elements were covered under that license, while the remaining 10 were eligible for copyright protections. Wow, tough break. This loss marked a dark period for the company; one we’d hardly recognize today, of course, because you and I are currently talking on Macs and probably have these within arms reach. So you win some, you lose some. (RETRO SYNTHESIZER MUSIC FADES OUT) Damn. I did not know that that happened. I don’t know if, was this like a big deal? I don’t know if you would remember, because you were a music guy at this time.
Yeah. I mean I remember certainly like the ripple effects.
It was always sort of in the lore like, you know, I never studied it, you know, or really had a reason to reference it directly, but it was like, it was the thing that forced the industry to start thinking about concepts that they hadn’t contemplated before, you know. And legal concepts like, (Faith: Mm-hmm <affirmative>.) in terms of IP and copyright law and things like that, they had, you know, there weren’t precedents. There were precedents in other industries, you know. (Faith: Right.) So, no. I don’t remember it directly, but I mean, it was a landmark thing. I mean, it was, it’s part of the whole Apple lore, and I mean, and the relationship between, you know, Apple and Microsoft was a huge. It was a huge deal, because then Windows went on to be super successful, create ubiquity, almost put Apple out of business, and then Microsoft had to bail Apple out later. And so you have this like, it’s almost like a sibling type of relationship where there’s like, competition, but there’s also interest in keeping each other afloat.
To me, the interesting piece of this is when I think about copyrightable or patentable technology now, it’s rarely hardware, and it’s also rarely like, facets of UI and UX that we just assume are products of using technology. For example, like having data inside of windows, right, and using a mouse to point and click. And of course, that’s because these are things that I’ve just used in my daily life, essentially since I could talk, you know? But it’s interesting to think about those as like, patentable technologies.
And where the line is; I think that’s the interesting part. Usually it’s, you know, functional things that are sort of self-evident aren’t typically covered, but then a unique or novel way of doing something (Faith: Hmm <affirmative>.) could be considered protectable. So, you know, there’s this like, inevitable subjective line about everything from hardware, all the way up through, you know, iconography. Like how close is too close? What’s an infringement? What’s a derivative work? (Faith: Mm-Hmm <affirmative>.) What’s fair use? All of these things are interesting, and you’re right, (Faith: Yeah.) you don’t think about them now, because we’ve had decades of, basically, an interface having common components. Like these are, this is just the way that it works. Like an OS, itself, (Faith: Right.) is a pattern, (Faith: Right.) you know? So, yeah. It is interesting like, how this thing had to really grow up.
Exactly. And I, you know, I think probably in the ‘70s and ‘80s, what innovation looked like is much different than what it looks like today. (Grey: Mm-Hmm <affirmative>.) And also, you know, a sense of usability and user friction, just in like, learning how to use what you’ve created. I’m not sure if it was as much of a priority then, as it is today, in my mind. Like, create, not homogeneous technology, but technology that’s intuitive, because a user has used similar technology before, is in the best interest of a company. And so there’s pieces that, you know, you don’t wanna be very different (Grey: No.) from your competitors because you don’t want the curve to be too high, so that folks aren’t willing to switch to your OS, right? (Grey: Right.) So…
Right. You know, imagine getting in two different cars and all the controls are in completely different places. The pedals are on (Faith: Exactly.) the sides and stuff. You couldn’t do it, and you couldn’t do it with interfaces, either. It’s a great point. I think, part of like, the notion of usability has also evolved, (Faith: Mmm <affirmative>.) because pre-‘80s, ‘70s and ‘80s, I mean, the usability was a functional definition.
Right, yeah <laugh>.
Does the software do what it needs to do, so someone can use it and do their job? <Laugh>. (Faith: Mm-hmm <affirmative>.) Right, but it wasn’t user experience, which is kind of what it means today. You know, usability is about, you know, things like you were talking about like, is it intuitive? Is it simple? Is it clean? Do I understand what I’m doing? You know, it’s almost like it’s built for a different user type, which is like, it’s about making everyday lives of everyday people easier. Not is it functional for an expert to do their job. (Faith: Mm-Hmm <affirmative>.) It’s just a totally different evolution of the notion of usability.
Right. It is interesting to think about if this bit of history hadn’t happened, and let’s say, Apple hadn’t licensed Microsoft, if Microsoft was building from zero with no reference, and let’s pretend that the Xerox Alto also didn’t exist, right, which I’m pretty sure probably had these things locked in before even Mac, but if they were building from zero, I’m so curious to see like, what that would look like. Like, who’s to say that a mouse is the best way to navigate on a computer screen, and who’s to say that windows are the best way to consume information on a computer screen? It’s the best for us, because that’s just what has been true since the onset of computers. But I think you’re right. It’s interesting to think about how that concept of like, what actually is good, usable design, is shaped by just that like, homogenous experience at the outset.
Yeah. I think the fact that we’re looking at voice and gesture, now, sort of indicates that the mouse isn’t the be-all end-all. It was the best version of where we were, and it’s been the best version until now. But now we’re saying, “Well, why can’t I just do this and wave my hand?” Or “Why can’t I just speak into an interf–” Like, the notion of the interface itself is (Faith: Mm-hmm <affirmative>.) still evolving. So I think yeah, you’re right. Like, what is to say that down the road another 20, 25, 50 years, there’ll be a whole other notion of what an interface even means? ‘Cause that’s, we’re sort of redefining that. I mean, that was, the GUI <spoken phonetically> redefined what an interface was, (Faith: Mm-Hmm <affirmative>.) and the GUI <spoken phonetically> ruled, and then, you know, to your point, things like mice ruled, and now voice is gonna rule, and then gestures are gonna rule, and then some implant’s gonna rule, and then some…<laugh> right? (Faith: <Laugh>. Yikes.) Like, it’s like, the interface is kind of like this really interesting thing, because it’s reflective of the user, and it’s also reflective of the technology. Like, it is the interface, you know? (Faith: Mm-Hmm <affirmative>.) So it’s like, it’s the intersection of the technology and the user, so of course, it’s gonna evolve.
I’m also, I mean, obviously, you are a product person, and so you kind of have to operate in this space every day. And whether or not you’re aware of it, and any of us are aware of it, I think is another question. But we’re kind of operating in this like, super narrow space between axes that we can actually play on, right? Like, we’re all confined by the interface that’s expected by users, right? So there’s like, one edge of the spectrum, and then on the other is, you know, we’re confined by things that might be copyrighted or patented by other people. And that space in between is a space that we have to play, which, I guess depending on how you look at it, could feel really broad or could feel really narrow. But I’m curious about your take on like, what does it take to actually build a unique product these days that doesn’t venture too far into either side of that spectrum?
Building a unique product, to your earlier point about patterns, is not always the goal, right? It’s not the goal to be different in the way that you could interpret the word “unique.” (Faith: Mmm <affirmative>.) You know, it’s not fundamentally different, right? I think the dimension that is most important is the idea of understanding of the user, understanding of the job that needs done. How many user types and functions are you trying to accommodate in any given workflow? And I think, generally speaking, what we’re seeing is more modularity. So it’s not one size fits all. (Faith: Mmm <affirmative>.) So making a unique product is making products that narrow the focus of the user that you’re building for, and those workflows can be even within the same product. So I think, to me, again, it’s that intersection of like, who am I building for and what do they need to do? And how can I get everything else out of the way? (Faith: Hmm <affirmative>.) Even if a different user needs to come use the exact same product, maybe there’s, you know, maybe there’s only a handful of shared components, but I’m really building for something that I know, you know, intimately about what needs to be done.
It’d be so interesting to track the progression of who am I building for over time? Because I mean, that was Apple’s, I’m pretty sure at one point, it was their like, public purpose was like, (Grey: Mm-hmm <affirmative>.) everybody has a computer. (Grey: That’s right.) Right? And now what I’m hearing you say, and yeah, what I see with other product companies that are really successful is they’ve got a really narrow scope of who they’re building for and why, and what those people need. And part of that is probably a, you know, a symptom of just a really crowded software space. There’s so much being built that it’s kind of a death sentence to try to build for everybody, but I’m curious if there will be kind of a return to that building for the masses, versus for a specific user group.
Yeah, I think that, you know, it depends on, to me, a little bit about what you’re building. You know, because if you’re building, if you’re Apple or if you’re Microsoft, you’re building operating systems. If you’re Linux, you’re building operating systems. And so, you know, that has to be a little bit of an “everybody here” thing. (Faith: Mm-hmm <affirmative>.) But then the point solutions that exist on there, I think that’s where we’re seeing, you know, ten different software companies, become a hundred software companies, become a thousand software companies. So you inevitably have to carve out a narrower niche, even though you’re inheriting a ton from the operating system or from the platform. The end user specificity is really where the uniqueness comes in.
Mmm <affirmative>. Yeah. I’m also, you know, I’m obviously not a product professional, but I feel like I’ve sat in the audience of our product being built for long enough that it doesn’t strike me that concern about infringement, like patent or copyright infringement, comes up a whole lot in the product development purpose and process. Does that feel true to you? Like, do you ever think about whether we’re building something that already exists?
No, and I think there are a couple of reasons for that. I think people are comfortable with general patterns and software development. I mean, software development is, to a large degree, patterns and so, and patterns like we’ve talked about are good, and interaction patterns are good, and there are best practices around, you know, usability and user experience. And those are good. And so I think when you take all of the things that are sort of pattern-based or repeatable, or things that I’ve seen before, that’s 95% of what you’re building. (Faith: Mmm <affirmative>.) And then there’s the, there’s sort of how the style that you’re doing it, and that gets pretty obvious pretty quick that if you’re just copying something <laugh>, if I’m copying Adobe, (Faith: Mmm <affirmative>.) it’s gonna be pretty obvious that I’m copying Adobe, you know, but I’ve gotta copy it to the point where it’s stupid. (Faith: Right.) Like, you know, it’s not just gonna be like a general hint at something. There are plenty of clones out there, and there’s plenty of, you know, it’s a copycat world, but I think the line of like, copyright infringement feels really egregious (Faith: Mmm <affirmative>.) most of the time. You know, a little deeper in the stack, you know, it probably becomes, maybe there’s some more nuance and like, you know, am I actually creating something, you know, of new value with an existing toolkit, or am I just appropriating their toolkit and reselling it? <Laugh>.
Mm-Hmm <affirmative>, right?
That’s probably more true, deeper, but at the user interface level, I don’t think many people think about copyright infringement that much.
To me, I feel like we talk about it in three scenarios, and the first is, how can we reduce our like, internal thrash and just like, find something that works and, you know, use that as zero and build from it? The second is, we’re incentivized not to copy, because what edge do we get from that? Right? (Grey: Right.) Like, if somebody else has done it, we’re not gonna market our way to more sales. You know, we have to be unique. We’re incentivized to be unique. The last scenario in which we’re looking at what already exists today, is because we don’t wanna recreate the wheel, right? (Grey: Mm-Hmm <affirmative>.) Like, if there’s something off the shelf, there’s something that already exists, chances are, there’s an open source version of it, or there’s a licensable version of it, and we’re incentivized to not recreate it, not copy it, but just go ahead and use it, because that speeds up our development cycle.
That’s the wild card of open source that I think really has propelled software development in, in terms of the evolution (Faith: Mm-hmm <affirmative>.) relative to others. You know, technology on the back of open source has evolved way faster than other industries, (Faith: Mm-hmm <affirmative>.) and it’s because of exactly what you’re saying, like reusability and building, remixing components in order to create something else that is new and creates value is way faster than starting at line one and reinventing all of that on the way to something that is valuable to the end user. Why? Why would you, why would anyone do it that way? (Faith: Mm-Hmm <affirmative>.) So yeah, like, the supply chain of open source is really, really, really a big variable when you compare industries, you know?
Yeah. I hadn’t thought about that before. It reminds me of like, songs that are just destined to be bops are usually ones who are just sampling, (Grey: <Laugh>.) you know, another hook <laugh> from a song that’s been really popular. So…
One of the interesting intersections, I think, is the relationship between brand and product. (Faith: Hmm <affirmative>.) A lot of times, the line is really blurry, and when you think about uniqueness, you know, do the interactions, does the look and feel of the application actually fit the brand and the, what I assume about, the target market or the voice. (Faith: Mmm <affirmative>.) To your point about being unique, like the inheritance that comes from the brand, it imbued into the actual product, itself, is also a thing. (Faith: Right.) And that also has to feel unique.
You know, Grey, I have always thought that your career trajectory was like an interesting wild card, but now I see it’s actually…there’s similarities. I think you’ve <laugh> got like a secret toolbox.
Tons of similarities. You know, part of this that gets undersold is that, you know, software development is half art and half science. (Faith: Mm-Hmm <affirmative>.) You’re building functional things, but the how you do that, similar to songwriting, you know, and similar to creating music, it’s like there are, and that’s why I think the nuance and like, determining what’s infringement, what’s protectable, is really interesting in the same way that it’s interesting in music, because I can have a bot that samples a thing, but if I sample it too long, have I crossed the line? If it becomes too integral? If I’m just like, co-opting a chorus, and that’s my chorus, and that was also someone else’s chorus, you can’t really do that. You can make it part of a new chorus, but you can’t make it the chorus. So like, (Faith: Yeah.) there are all these things that are, I think, across the board, like a one-to-one relationship between, you know, things traditional, art, music, film, and what we’re seeing in software. And software just did it all really fast. (THE FRONTIER THEME FADES IN)
Like everything else. (Grey: Right.) I’ve come to terms during this conversation that I have a new nightmare job. Like, if ever I were to be punished and in a next life, I think this would be the job I would have, which is a copyright lawyer. (Grey: <Laugh>. Awful.) I think it would be terrible. Just all these examples, I’m like, god, no thank you. (Grey: Yeah.) Too much.
<Laugh>. Well, Grey, collectively, I’m glad that that is not our job. And also this is just really fun to talk about a piece of tech history with you.
Yeah, it was fun.
Thanks for listening to the Frontier podcast, powered by Gun.io. We drop two episodes per week, so if you like this episode, be sure to subscribe on your platform of choice, and come hang out with us again next week, and bring all your internet friends. If you have questions or recommendations, just shoot us a Twitter DM @theFrontierPod, and we’ll see you next week. (THE FRONTIER THEME ENDS)
Took Macintosh to court. Macintosh? I would assume this means Windows. They took Windows to court. (Grey: Yeah.) Microsoft, not Macintosh. Okay, cool, cool. When you know, oh my gosh. Great. What’s the last thing I was gonna say? <Laugh>. We’re incentivized. We’re incentivized not to copy, (Grey: Mm-Hmm <affirmative>.) of course. Well, now I have to say something, because I’ve said I have three things. (Grey: You had three things.) I remembered it. I just marked this clip for Bill so he can <click vocalization> slide it in there.
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