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RTFA...

But the fact of the matter is this isn't a trademark issue, it's about whether or not Bernd had the legal rights to distribute Zeta. If he doesn't then he has been effectively making a living off of lying to the entire BeOS community. This isn't about using BeOS's name and trademarks (which they actually didn't do) this is about effectively selling people something that Yellowtab did not own and they certainly gouged their customers for it. They had seven years to make their case that they had the rights to BeOS and the most we got out of them was a few sentences hidden away in their FAQ. The only thing to back Yellowtab's claims is the theory that they had an NDA, which to my knowledge has never been substantiated and everyone seems to know by secondhand knowledge. Colour me paranoid but why would a company sign an NDA that forbids them from claiming they have the legal rights to a product? I don't even think Commodore's management would have agreed to that. Despite having every reason to prove themselves to the community they continued to give off an air of shadiness with issues such as Gobe's claim Yellowtab wasn't paying them for Productive.

Furthermore, if you read the article ACCESS does give their reasons for not pursuing legal action. Though I don't necessarily completely agree with them, legal battles can end up very expensive and even more so if the company you're suing lacks the cash to pay up. Bernd had seven years to give the community a straight answer. In two news posts ACCESS has given far more information than anything that Bernd ever gave us. That says a lot to me.

Edited 2007-04-04 10:35

Actually, I've seen some NDAs that forbids you to claim that it exists. Sounds strange, but it's a quite common practice in industry, you can show it only when asked by a tribunal.

I think you'd have to be a near fool to agree to one of those NDAs--at least in some cases. The Zeta project is a perfect example: all of the Zeta-retractors (including myself) said that, if Zeta was subject to an NDA, they would disclose that information. The concept of an NDA-on-an-NDA seemed so absurd and conspiracy-theoryish to me that I dismissed that being a possibility. I have since ate my words, but I still think all of the possible FUD resulting from a meta-NDA could cause a PR nightmare.

Edited 2007-04-04 14:24

You are correct of course, you've pretty much said what I wanted to say! I still think Access should have taken legal action against Mr Korz...

Dave

See Looncraz's post in the "Timeline of Zeta Developments" thread.

That is correct. Copyright is automatic (i.e. you don't need to apply for it) and remains valid even if you fail to protect it for an extended period of time.

Trademarks, on the other hand, must be registered *and* actively defended, otherwise they can be lost.

I realise this, I was using the trademark as a pointed example of Access failing to protect their IP (including copyrights).

Dave

> Bernd's timing
Actually I just wondered the other way around, it's odd as well that this comes right at this time...

>> Bernd's timing
> Actually I just wondered the other way around, it's odd
> as well that this comes right at this time...

Not really. Magnussoft/yT/Bernd weren't talking about opensourcing the sourcecode before (and whatever that means in reality.) ACCESS have just jumped on the "opensource" part of the equation and have been pushed further to reveal more information by journalists asking more questions. After all, ACCESS have nothing to hide, it seems ;-)

Agree, I tried to explain it to my friends in similar way. Problem is that opensourcing even innocent (for first look) codepieces may lead to copyright infridgement to much larger number of individuals and maybe companies. Like you cannot opensource some self-written media apps, if those use unpublished till now (and belonging to ACCESS) API.
So it may be really hard for Bernd even with big goodwill to opensource most of work done for Zeta - it may take too much time and efforts to estimate, which can and cannot to be published.

SReilly wrote:
-"The one thing that does worry me is what was said about BeOS Max. Although Access did not know of Max before the interview, Mr Schlesinger said that he would check it out. Considering what was said about derived works, Vasper could be getting a letter any day now."

yes, although I didn't quite follow this statement he made: "We realize no income from BeOS, and our belief at this point is that any money we could make from it would be vastly exceeded by the operational costs of doing so. The author of, for example, the Harry Potter books doesn't pursue infringement proceedings against the numerous writers of "fan fiction"--which are clear infringements--for pretty much identical reasons."

was he comparing Zeta to fan fiction in this context (considering that Beos Max hadn't been brought up)? that would be a strange comparison since Zeta was a commercial venture and fan fiction isn't. also it was a poor choice to use J.K Rowlings as an example, as she has stated that she loves fan fiction of all kinds.

anyway, while the fan fiction analogy doesn't really sit well with the Zeta situation, it somewhat does with Beos Max. however, since they haven't taken any legal action towards Zeta who was actually selling their intellectual property I doubt that Vasper needs to gear up with lawyers. that said, a cease and desist letter would likely put an end to any further Beos Max development.

as for Bernd Korz open sourcing the work done on Zeta. since Access stated that, any modifications made to an infringing version of BeOS are likewise infringements of our copyright. that is VERY unlikely to happen. however, drivers, ports and native applications such as the video editor would make a really nice gift to the 'community' and would help by casting a bit of positive light over the Zeta debacle.

pending any response from Bernd Korz, I hope that the statements made by Access finally ends the Zeta/Beos source code squabble once and for all. though I doubt it, since some people seem to live for that very subject...

Beos/Zeta is dead, long live Haiku.

" however, drivers, ports and native applications such as the video editor would make a really nice gift to the 'community' and would help by casting a bit of positive light over the Zeta debacle."

See my comment below your. If those use new/unpublished API - it is really really problematic.

"If those use new/unpublished API - it is really really problematic."

Unless you have signed an NDA that prevents you from releasing sources there's no problem.

I meant rather danger for people to use later that API, gotten with unclean in legal sense way.

As you remember maybe, there were always problems with community-made media encoders/decoders in BeOS, as API for those weren't published for R5. Inspite it was available in un-official way.

IMHO ReactOS and WINE do use official, published by owner, API.
Not the case for Dano API.

fyysik - WINE implements thousands of unpublished APIs. Hundreds of commercial apps use unpublished APIs. Theres nothing to prevent you open sourcing an app that uses unpublished APIs.

and that's not even counting the numerous reverse-engineered drivers for OSS operating systems.

If you signed a NDA yes.

Why you and people in previous news about Haiku here hate BeOS MAX so much? Try to read thread at Bits of News to the end at least first.

I see there that David in much more softer position about MAX now and even tries to advocate it (before proven to be guilty!) now:
Re: Re: Re: Re: ACCESS Confirms Zeta BeOS Version Infringing

Written by: David "Lefty" Schlesinger, 2007-04-04 11:10:59
"As I've said, I'm not prepared to make any statement vis a vis "BeOS Max". I'd need to investigate and have some discussions internally before I could make a concrete assessment and recommendation as to how this should be approached.

The fact that it's not for profit is a consideration; the apparent implication that this was accomplished (if I understand correctly) via reverse engineering rather than through illicitly-obtained source code is likewise a factor. I'll do my best to make an assessment of the situation there, but I want to be clear that I currently have no position, one way or the other, on this matter..."

"The fact that it's not for profit is a consideration; the apparent implication that this was accomplished (if I understand correctly) via reverse engineering rather than through illicitly-obtained source code is likewise a factor. "

The MAX case is not about source code but about the fact that it violates the PE license agreement. Unless you have received a written agreement from the copyright holder you are not allowed to distribute copies of PE, even less so modified copies of it.
Considering MAX is not for profit ACCESS may let it slide though.

Thanks for posting that, fyysik! If I had any votes left, I'd vote ya up!

I was wondering how Mr. Schlesinger would react to Max. It would be a shame if Vasper was unable to continue his work as he has always given the impression he wants Haiku to succeed. I get the impression that, when haiku R1 comes out, Vasper will either discontinue Max or base any new versions on it.

Max is obviously a derived work but, given that it is a reverse engineered setup that uses software supplied with BeOS 5 PE (as well as some much needed patches) and that it's a non profit release, I really don't see why Mr. Schlesinger and Access would wont it shut down. It's not like Max competes with any of they're products.

Edited 2007-04-04 12:51 UTC

Vasper mentioned several times that he consulted with greek laywers, and Greece laws allow him to do his work.
It may be real case, aswell as interpretation of German laws which probably allowed Zeta to be afloat for long time, as I commented here before.
Difference is that Vasper stated explicitly, that this is local law specifics, which allows him to do so, wile Bernd was always more than uncertain:)

Another question is about distribution, e.g. from MAX mirrors in other countries. But that's not Vasper's problem but that of mirrors owners:)

"Vasper mentioned several times that he consulted with greek laywers, and Greece laws allow him to do his work."

Unless Greece totally lacks copyright laws that it is, to put it bluntly, bull.
Even if the PE license hadn't stated it you are STILL not allowed to distribute others work without permission.
If I write a book and give you a copy of it it is sure as hell not your right to make copies of it and give them away.

I agree with you completely--there's a gaping hole in the OS market just waiting to be filled with something like BeOS/Haiku, and it's disappointing to see that hole still unfilled.

If nothing else, I think ACCESS should release the BeOS code to the Haiku project. I don't see how they have any money to lose in that if they're not going to continue BeOS or give someone else permission to do so. It's true there could be portions of BeOS code licensed from other companies, but in that case they could just release the code that's not licensed.

Edited 2007-04-04 13:34

Same thing as I thought. Why keep tons of code locked up in a safe and do nothing with it? A few years more and all they'll be able to do is print some listings and cut out some nice origami.

With all due respect, I think you're vastly overestimating the size of that "gaping hole waiting to be filled."

I actually joined the Be developer's program around the time of Preview Release 2, and ran all of the Intel versions--from version 4.5 on, as my only operating system, up until the time it was clear that BeOS wasn't going to recover from the BeIA fiasco. (For me, that time was when Gobe announced that Productive 3 would be Windows-only.) I don't relay this just to show geek credentials, but to show that I actually do have a pretty deep understanding of what BeOS was; a lot of the OS's current critics are very clearly talking out of their butts.

What was most revolutionary about BeOS, I'd argue, was the speed and responsiveness. On the same hardware, it felt much faster than Windows and Linux. There were some great ideas beyond that, obviously--the query-able metadata in the filesystem is something I still miss, and the architecture of the underlying media system allowed you to do things that are still absent or clunky on other OSes (things like inserting programs as "filters" in the A/V processing chain, or setting audio levels on a per-application basis). But it was the way it made your hardware feel twice as fast that was amazing. BeOS was designed to be very low-latency in a way no other system was.

But even back then, I figured Be probably had a fairly short window to capitalize on that lead, which they failed to do. Simply put, BeOS's biggest threat was never Microsoft or Apple. It was Moore's Law. The speed advantages BeOS could bring in software elegance could--and inevitably were--also brought by simple hardware brute force.

But wait! you might say. Software that runs twice as fast on old machines still runs twice as fast on new machines, so it's still an advantage! Well, only on paper. The latency difference between 15ms and 30ms is significant--but the latency difference between 1.5ms and 3.0ms, not so much. (And also, of course, other operating systems have been actively developed over the last seven years. Other than additional drivers and tweaks to keep running on modern hardware, none of the BeOS clones, including Zeta, can really say that.)

Don't get me wrong; I think Haiku is a very cool project. Maybe Access can work with them in some fashion to get (legal) access to BeOS source code. But that window of opportunity that was open for BeOS back in 1999--to capture a small but significant part of the "creatives" market, focusing on A/V media the way the original Mac focused on print and design--isn't open anymore, and BeOS doesn't have the breadth of applications that make Linux a good choice for running on "last generation" machines to keep them going. New people who come to Haiku are likely to come to it because they're self-proclaimed "OS geeks," but the not-so-techie creative types aren't going to be there. There's just no reason.

What makes you think BeOS is more secure than Vista?

Well, with the current state of BeOS now it is less secure than that of Vista as the latter is being actively maintained.

But back in time, while there have been some forms of virii under BeOS, the numbers is still minute compared to that of Windows and these Windows virii, given the perfect chance can and will still infect Vista.

I even paid form a Zeta release and never got a damn CD-ROM!! That was before magnussoft distribution.
May Zeta rust in peace.

I paid 100 Euros for Zeta 1.0 + T-Shirt, never received anything. After more than one year, I contacted them, they asked me to send another 15 Euros to get 1.1, which once arrived appeared not to work with my Athlon XP 1700+ (1.5 GB DDR) and still no T-Shirt bundled (but at this point I don't care anymore about the T-Shirt)...

Kochise

Edited 2007-04-04 13:53

Now that would be cool. The only problem that I see with that situation is that it's really on Bernd's head, not Magnussoft, and he would probably declare bankruptcy. I really doubt the guy has all that much money. Still, it would be justice done if Bernd did not get away with it.

"Still, it would be justice done if Bernd did not get away with it."

I think honestly you should let it rest.
1, we don't know if he did it in bad faith.
2, you're down maybe $100 individually, he'd be down for a very long time.
3, He *did* employ a good number of BeOS developers who not only wrote code for Zeta but also for Haiku.

I dislike Zeta/YT as much as the next guy but that doesn't mean I want to see Bernd ruined.

Although I see where you are coming from, and agree for the most part with what you are saying, it's really not my call. I never bought Zeta simply because I didn't want to give Bernd any validity. If, on the other hand, a class action ensued, I can hardly say it's not fair.

Sure, most people are only out €100 but the fact does remain that Bernt has only been allowed to continue with Zeta unchallenged because of a legal loophole. Using that as his basis, he defrauded not only his customers but also the rightful owner of the IP that he was distributing. Don't get me wrong, I'm not the world's greatest fan of IP (I think that as a concept, it's an oxymoron) but no matter my feelings on the subject, fraud is still fraud.


Again, very true but that seem less likely when Mr Schlesinger stated that Access had sent out several letters without reply.

It seems there are big problems with email communication at YT,

Bernd didn't answer any of my e-mail as BeZilla main developer at time, while communicated more or less successfully with me at IRC:)

Maybe they have super-spam-trash there, where all email come directly into (those from ACCESS incl.), except very few ones in white list:)

1. I'll withhold my personal opinion and feelings on him, as I'm (unfortunately) not able to read minds, but right now - all signs point to "bad faith/cheat/scam". I'll wait for his "statement". (Hah!)

2. If he did this knowingly, GOOD. If it was unintentional, ignorance is still not an excuse. I can't use any WW2 examples without being threatened, so here's a different one. Let's say somebody gives me a car, and tells me I can drive it. I have no written agreement, just their word. Now, I can drive that car - and hope the person doesn't change their mind and call the police concerning a stolen car.

Furthermore, with the understanding that it's ok for me to drive the car, they also tell me I can drive other people too. I think to myself, hey, great, I can make some money driving people around! So I start driving other folks around in the car.

The guy who originally told me it was ok to drive/drive others around dies. Then his son dies. Now all that's left is his grandson. I never bother to go make sure it's still ok for me to drive the car, and I ignore all communication from the grandson asking me to give back the car. I keep charging people to ride around in it. Does anybody see an issue here?

What's worse - in this case - not only was there a service involved (car rides) - but a product. Now, people who purchased that product, have just been informed even though they shelled out money for it - they cannot legally use it - because they technically never legally owned it, since the seller never had legal rights to sell/distribute it!

I'm sorry, but ignorance or malice, Bernd has really screwed over a lot of people.

3. So, if I setup a website selling babies and make lots of money from it and employ some developers to write code for Haiku, that makes my operation "ok"? No, not at all. Oh, sorry, making exaggerated analogies again. This time it's not a reference to WW2 so maybe I'll be ok...

If Bernd carried this out with malice, he deserves to be ruined. If this was the result of ignorance, then he should face the consequences of his actions, not be let off the hook while thousands of people get screwed out of hundreds of dollars/euros. Just because each individual case isn't "much" (to some people - it is) - doesn't make the overall deed something to overlook.

He went into business, he made a profit, he should have researched things fully and properly - due diligence is required when you start a business and start to sell a product to people. If the legality is questionable, or you don't understand the terms - a lawyer consultation should have been #1 on the list of "todo". Obviously it wasn't, now he's claiming he's got to go talk to a lawyer to figure this out. It's a little late for that, Bernd.

If you are right and Bernd Korz really screwed up people by selling them something that he did not own, then, ACCESS, by maintaining silence over the issue for a number of years has, to put it drastically, made itself complicit in a crime.

If all is as you put it, it would have been the damn duty of ACCESS to go public and warn people that they are getting ripped off.

Why didn't they do it? What would it have cost them?

Now that would be cool. The only problem that I see with that situation is that it's really on Bernd's head, not Magnussoft, and he would probably declare bankruptcy. I really doubt the guy has all that much money. Still, it would be justice done if Bernd did not get away with it.

Bernd Korz looks wide open for a criminal prosecution for mass distribution of copyright infringing work, and fraudulently taking investors and customers for a few million Euros. He's still living in a large castle and seems to have plenty of money to spend on renovating it.

This reminds me of the Robert Maxwell pension fraud scandal. He abused the law, had a charismatic and bullying ego, and lived in a castle. People may not get much back but it may help people shut the door on this sorry episode and look towards the future.

Haiku is going strong and Access seem keen. Whether a prosecution happens or not, the seeds of something credible have been planted. Success has many friends, losers have none. Bernd Korz gambled other peoples shirts and lost, but the future still looks brighter than ever.

Edited 2007-04-04 13:38

I don't think anyone here paid for the prospect of future releases. No one ever promised that, so I doubt you could sue anyone for that.

Support - I haven't seen any statement that would claim that there is no more support available. Magnussoft announced to continue distributing Zeta until the end of 2007.

Support would include security and maintenance updates. Now these will certainly not be available after the dismissal of the complete dev team.

Dude, the BeOS code was already leaked in 2001 (as well documented at the time.) All of it. How else did a version of Dano end up being released a couple of years ago for PowerPC? It didn't come from Palmsource and it certainly didn't come from Yellowtab...

You mean like the Windows 2000 source code leak forced Microsoft to open-source Windows?
Gimme a break

lopisaur:
You mean like the Windows 2000 source code leak forced Microsoft to open-source Windows?
Gimme a break

Vibe:
The Half-Life 2 source is in the wild but is useless. There isn't anyone who'd go near you if you tried to use it, and using it would be a great way to annoy people you might like to have on board.

Well, those are good examples, but they are also production/commercial pieces of software. Official BeOS development is dormant, why would Access fight that hard to keep BeOS code protected unless they have plans for it that they're not telling us? Owning someone else's IP is pointless unless you have plans for, and as far as I can tell, Palm/Access is planning on reviving the BeIA.

It seems to me quite logical to own the IP to the worlds best file system, the worlds best media system and the worlds fastest kernel without calling any product you make using it Be(something).

It seems to me quite logical to own the IP to the worlds best file system, the worlds best media system and the worlds fastest kernel without calling any product you make using it Be(something).

It may make sense from a narrow perspective but runs foul of peoples trademarks. Once Haiku get their head around these issues, maybe, a Haiku Max could be a good thing. In any case, a "Vasper Max" that's "Haiku logo compliant" might be a good thing in any case.

Well, those are good examples, but they are also production/commercial pieces of software. Official BeOS development is dormant, why would Access fight that hard to keep BeOS code protected unless they have plans for it that they're not telling us? Owning someone else's IP is pointless unless you have plans for, and as far as I can tell, Palm/Access is planning on reviving the BeIA.

Doesn't matter whether it's useless or not. It's a question of the law, and someone somewhere does own the rights, which they may realise at some point in the future. I know people can get muddled over legal and ownership issues but until a copyright expires someone can sit on something for as long as they like.

It may be possible that the great design of BeOS and market demand is enough to encourage Haiku and Access to come to an agreement we can all get behind. Personally, I see Haiku as a real alternative to OS X and Windows. Who knows, it may stimulate porting of a few key applications and get some major IHV support.

So who things Bernd/yellowTab will go out with a bang and leak BeOS/Zeta to the world? I'm not a big proponent of leaked code, but it could definitely pursuade Access to opensource it once they lose control over the code.

The Half-Life 2 source is in the wild but is useless. There isn't anyone who'd go near you if you tried to use it, and using it would be a great way to annoy people you might like to have on board.