401 lines
13 KiB
Plaintext
401 lines
13 KiB
Plaintext
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---------------------------------------------------------
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SEA vs. PKWARE
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Shareware Company Threatens BBS World That Gave It Life
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---------------------------------------------------------
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Last April, System Enhancement Associates, vendors of the archive
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utility ARC, filed suit against Phil Katz, author of the archive
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programs PKARC and PKXARC, and his company PKWARE. SEA claimed
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trademark infringement on the name "ARC," and violation of their
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copyright on the "look and feel" of ARC's command-line user-
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interface, in addition to charging Katz with appropriating ARC
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program code.
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The company demanded all profits from PKARC and PKXARC, treble
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damages, statutory damages at the highest level allowed, and
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attorney fees. It also requested that all copies of PKARC and
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PKXARC, from those owned by bulletin board users to those
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licensed by businesses, be impounded, and that Katz be barred
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from ever again selling or distributing the programs.
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In August, SEA and PKWARE settled out of court. SEA obtained the
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source code for PKARC and PKXARC, and PKWARE's customer list, and
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Katz was required to pay SEA royalties on the program back to 1985,
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in addition to attorney's fees and legal expenses--an amount that,
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according to documents on file at the Milwaukee County Federal
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Courthouse, totals $62,500.
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He also agreed not to use the word "arc" in a trademark sense.
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Under the settlement Katz is permitted to license his PKARC and
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PKXARC programs (or PKPAK and PKUNPAK, as they are now called) from
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SEA until January 31, 1989. (Anyone who licenses PKPAK and/or
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PKUNPAK from Katz prior to then may continue to use those versions
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of the program perpetually, even after January 31, 1989.)
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Recently SEA filed contempt of court charges against Katz. While
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the company has kept details of their allegations under seal, they
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appear to be alleging that any use of the word "arc" by Katz,
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even as a descriptive or generic term (for instance, to refer to the
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act of achiving a file--whether one is using SEA's ARC or ZOO or
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any other archiving utility--as "arcing" it) is in violation of the
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settlement.
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SEA has lately been contacting other software developers whose
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products make use of the ARC file format and threatening legal
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action. Gary Conway, author of NARC, an archive extraction
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utility, was contacted by the company, which tried to pressure him
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to license the ARC format and turn over the source code of NARC.
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Don Kinzer of Polytron received a similar call from Thom
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Henderson of SEA. Henderson told Kinzer that if a software
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product had the ability to read an ARC file--not create or
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extract it, merely read it--SEA would require the vendor to
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obtain a license from SEA.
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Settlement Issues and Rumor Mongering
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As part of the PKWARE-SEA settlement, both parties agreed to
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refrain from any comment on the settlement. Not surprisingly,
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unfounded rumors about the settlement have proliferated. One
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such rumor is that the judge in the PKWARE-SEA case had an outside
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consultant compare SEA's and Katz's source code. When the
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consultant found plagiarized code in PKARC, the story goes, Katz
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settled quickly to save face. Not true. No attorneys for either
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SEA or Katz had ever met with the judge prior to the settlement,
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and at no time did the judge ever retain an expert or himself see
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the source code.
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The real issues in the case were SEA's charges that Katz had copied
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ARC's program code and that he had violated the company's trademark
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on the word "arc."
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In regard to the first complaint, there are only two pieces of
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code in ARC with non-trivial algorithm: the squeeze code and the
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crunch code. SEA copied these almost verbatim from public domain
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sources. Katz's use of the same public domain sources resulted
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in a program that ran four times faster than the then current version
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of SEA's ARC. No competent programmer could ever conclude that Katz
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had plagiarized SEA code.
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SEA's claim that it owns a trademark on the word "arc" is, as one
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UUCP mail user noted, like Digital Equipment insisting that it
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owns the word "equipment." The word "arc" as an abbreviation for
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"archive" has been in the public domain long before either SEA or
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PKWARE entered the scene. Any word which has become a part of
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popular parlance, as "arc" has, cannot be protected as a
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trademark.
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Nevertheless, SEA claims that no one else can use this word to
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describe their archive utilities, and that Katz used it to
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intentionally confuse users and capitalize on the popularity of
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SEA's ARC.
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Finally, SEA claimed in its lawsuit that Katz violated the
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copyright on the "look and feel" of ARC's user-interface. Anyone
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who has ever used both ARC and PKARC knows that neither touts an
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interface that is anything more than a few commands and switches
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entered at the DOS command line. There are no menus. There are
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no full-screen displays. There is nothing artistic or seminal in
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the interface of either.
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Yet, SEA argued in its suit that Katz "substantially copied and
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plagiarized the entire appearance and user interface and screens
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which result when a computer user interacts with or uses [ARC]."
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By the same logic the author of Fido bulletin board software may
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as well sue the designer of RBBS.
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(Note: If you have any questions about the SEA suit, please see
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the copy of the complaint filed in that suit which has been
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circulating on bulletin boards and on-line services. A press
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statement concerning the settlement is also in circulation.)
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Why You As a User Should Care
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Over the past year the popularity of Katz's PKARC/PKXARC programs
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among both bulletin board and business users surpassed that of
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SEA's ARC by a wide margin. Many consider the suit that SEA
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waged against PKWARE, as well as the company's subsequent legal
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bullying of other shareware archive software developers, as legal
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coercion intended solely to drive its competitors out of
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business--a tactic not unheard of in the computer industry.
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Defending your software against a suit such as the one filed by
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SEA against PKWARE can run from $100,000 into the millions, as
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copyright and patent suits are the most costly forms of
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litigation to defend against. If your product is not grossing
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over a million in sales, you will be advised (nay, forced by
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economics) to seek an early settlement--as Katz did.
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Consider what this means if you're a Dan Bricklin-type
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programmer running a small software operation out of your
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home. The program you slaved over for months so that it might
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win you emancipation from your 9-to-5 job, you might be forced to
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destroy in a "legal settlement" over a bogus suit. (Some of us
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know people besides Katz to whom this has happened.)
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Consider what this means if you're a user. Your choice in
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software is being dictated, not by a software package's intrinsic
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merits, but legal manipulation. Legal manipulation that favors
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the litigant with the most money as opposed to the one with the
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best product.
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It also means that great programmers are spending their time in
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court when they could be busy creating better products for the
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marketplace. Unfortunately, legal experts are predicting an
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escalation in such suits over the next decade.
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What Can We Do?
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As a user you can stand up and say that you're not going to put
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up with companies that use the courts to strangle their
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competition, that employ lawyers and lawsuits to bully companies
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and independent programmers out of existence, that dish out
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frivolous suits rather than decent products.
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No, you do not have to take it anymore, and yes, you do have the
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power to change things.
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A number of bulletin board operators, to protest SEA's legal
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bullying of its competitors, have stopped using SEA's ARC to
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archive programs on their systems. Some have pulled SEA
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products from their file collections. We suggest that you
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likewise boycott SEA's ARC, as well as the company's SEADOG
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mail program, until the company desists its harassment of archive
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authors.
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But boycotts alone are rarely effective. We also ask that you
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write to SEA. Accompanying this file is a "form letter" to SEA
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(in the accompanying file LETTER.TXT) that you can print out,
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sign your name to, and mail. Feel free to add to or change
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anything in the letter.
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In addition, please upload this file and the accompanying file
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LETTER.TXT onto any bulletin board or on-line system that you
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call. If you are a sysop who supports this campaign we ask that
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you mention it in your board's introductory screen and ask users
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to download these files.
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If enough of us speak up and let it be known that we are opposed
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to this kind of misuse of the legal system, we will be sending a
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loud message to software vendors that the computer user community
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will not tolerate firms that attempt to drive their competitors
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out of business through legal harassment.
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Remember that together we have built the PC community into the
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most vibrant computer user community in history, and by uniting
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we can make it even better.
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Matt Anderson
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Sysop, Alaska EMS RBBS
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Fairbanks, Alaska
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907/463-4988
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Rod Bowman
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Sysop, PC Spectrum
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San Bernardino-Area, California
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714/945-2612
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Ed Branley
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Sysop, Minas Trinith RBBS
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New Orleans, Louisiana
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504/455-8665
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Danyaon Coston-Clark
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Sysop, ACCESS: ONLINE BBS
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Malverne, New York
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516/887-5804
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Mike Coticchio
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Sysop, Beginnings BBS
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Levittown, New York
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516/796-7296
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Juan Davila
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Sysop, Mega-D RBBS-PC
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Puerto Rico or Thereabouts
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809/751-7728
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Michael Davis
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Sysop, Horizon RBBS-PC
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Dallas, Texas
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214/881-9346
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Ron Fowler
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Author of MEX-PC Communications Program
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Fort Atkinson, Wisconsin
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John Friel III
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Author of Qmodem / Sysop, Qmodem PCBoard
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Cedar Rapids, Iowa
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319/233-6157
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Judy Getts
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Contributing Editor/Telecommunications
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PC World Magazine
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David Gibbs
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Sysop, The Midrange System
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Chicago, Illinois
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312/439-9679
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James A. Grettum
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Sysop, RBBS-PC of Fargo
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Fargo, North Dakota
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701/293-5973
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Chris Harrower
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Co-Sysop, Lancaster Area BBS
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Lancaster, Pennsylvania
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717/394-1357
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Andrew Hoag
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Sysop, Satellite RBBS
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North Dakota
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701/232-3811
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Jerry Hunter
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Sysop, DMC Switchboard Network RBBS-PC
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Arkansas
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501/636-2810
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Andy Jones
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Sysop, Everglad RBBS-PC
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Tampa-Area, Florida
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813/992-5993
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Bob Jones
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Sysop, BJ's RBBS-PC
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Pasadena-Area, California
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818/248-1087
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Loren Jones
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Sysop, RBBS-PC of Chicago
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Chicago, Illinois
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312/352-1005
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Henry Kisor
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Sysop, Word Processing BBS
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Chicago, Illinois
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312/491-6995
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Jeff Krueger
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Sysop, A Different BBS
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Chicago, Illinois
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312/589-0074
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Rick Lawsha
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Sysop, STORK RBBS
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Galesburg-Area, Illinois
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309/342-0637
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*.* Loban
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Sysop, Oregon Net
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Anaheim-Area, California
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714/945-2612
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Gene Lowry
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Sysop, Bigfoot II RBBS-PC
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Arizona
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602/886-7943
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Robert Mahoney
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Sysop, Exec-PC BBS
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Milwaukee, Wisconsin
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414/964-5160
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Sal Manaro
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Sysop, Underdog's Mininet
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Seattle, Washington
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206/725-9233
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Jon Martin
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Sysop, Aircomm
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Bay Area, California
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415/689-2090
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George Maynard
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Sysop, OBIE RBBS-PC
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Cleveland-Area, Ohio
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216/684-2059
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Jim Oswell
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Sysop, The Grapevine RBBS-PC
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Charlotte-Area, North Carolina
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704/364-3632
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Michael Part
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Sysop, The Wicked Scherzo
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Pasadena, California
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818/906-8683
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Tim Pearson
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Sysop, LANStar RBBS-PC
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Springfield, Missouri
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417/673-2283
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Terry Rossi
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Sysop, RTC-BBS
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New Jersey
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609/654-0999
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Jerry Shenk
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Co-Sysop, Lancaster Area BBS
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Lancaster, Pennsylvania
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717/394-1357
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Don Smith
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Sysop, NorthWest Ohio RBBS
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Toledo, Ohio
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419/448-1421
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Phil Stults
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Sysop, The LANS Multi-Node BBS #1
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Gary, Indiana
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219/884-9508
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Maurice Thaler
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Sysop, Power Board BBS and Audio Projects BBS
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Madison, Wisconsin
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608/221-8422
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Bill Tulles
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Sysop, AV-SYNC
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Atlanta, Georgia
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404/320-6202
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|
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Paul Waldinger
|
|||
|
|
Sysop, Sound of Music BBS
|
|||
|
|
Oceanside, New York
|
|||
|
|
516/536-8723
|
|||
|
|
|
|||
|
|
Bob Westcott
|
|||
|
|
Sysop, Stateline BBS
|
|||
|
|
New Hampshire
|
|||
|
|
603/424-5497
|
|||
|
|
|
|||
|
|
Randall Young
|
|||
|
|
Sysop, ATT-PAC BBS
|
|||
|
|
The Bay Area, California
|
|||
|
|
415/829-6062
|
|||
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|
|
|||
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|
|||
|
|
Posted September 5, 1988.
|
|||
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|
|||
|
|
[Note: Please do not alter or augment this file. If you are a sysop
|
|||
|
|
or software author and would like to add your name to this list of
|
|||
|
|
endorsers, please leave a message containing your name, phone number,
|
|||
|
|
name of your BBS and/or product, and the name of the city that your
|
|||
|
|
board resides in, to Judy Getts on one of the following boards: Exec-PC
|
|||
|
|
in Milwaukee at 414/964-5160; Loren Jones' RBBS-PC in Chicago at
|
|||
|
|
312/352-1035; or the Sound of Music in Oceanside, New York at
|
|||
|
|
516/536-8723. We thank you.]
|
|||
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|
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|
|
---------------------------------------------------------------------------
|
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