Wednesday, April 23, 2014

Sometimes principles just don't matter - Theo vs. THEOS, 1998

In a recent post, I discussed my lack of principles. In this specific situation, I was running into problems with Google Chrome, and had to decide whether to install Mozilla Firefox, although I have issues with the way that Mozilla conducts its business.

This caused me to come face-to-face with an important decision - should I install Mozilla Firefox on my pristine new Google Nexus 7 tablet, even though Mozilla actively discriminates in hiring, is non-inclusive, and is non-diverse? I could demonstrate my principles by refusing to download Mozilla Firefox. But I really wanted to use the I downloaded Mozilla Firefox.

However, I'm not the only one that has sacrificed my principles. Take this incident from almost two decades ago.

On the one side was the THEOS Software Corporation, an entity with whom I was very familiar at one time. Which brings me to the disclosure:


Oasis and THEOS, which originated in the late 1970s, were multi-user operating systems that allowed users with dumb terminals to share a single computer. While not as popular as, say, Linux, THEOS competes in some very specific vertical markets. The operating system name was changed to THEOS in the early 1980s, and the THEOS Software Corporation certainly had an interest in protecting its intellectual property.

On the other side of this debate was Theo de Raadt - who, coincidentally, was also involved in operating systems (the OpenBSD project).

By 1995, this thing called the World Wide Web was taking off, and companies and people began populating the web with their domains. Theo (de Raadt) provides the relevant details:

The domain was allocated by Theo de Raadt on 20-Jan-95.
The domain was allocated by Theos Software Corporation on 12-Oct-95.

At some point, the THEOS Software Corporation learned of de Raadt's site, and apparently became concerned about possible loss of its trademark. Now you may pooh-pooh these legal efforts where Disney or whoever gets extremely zealous about protecting its intellectual property. But if you feel that individuals should not be hassled by these evil corporate giants, we'll see how you REALLY feel by conducting one simple test:

1. Tell me your name.

2. I will then open up a series of businesses all over the world. For example, if your name is Joseph Gambolin, I will open up one thousand retail outlets with the name "Joseph Gambolin's Pornography, Tobacco, Sarah Palin Biographies, and Mao Red Books."

3. I will not pay you a cent for the use of your name.

Well, the THEOS/Theo case didn't come to that, but THEOS Software Corporation was concerned enough to get a lawyer. On November 20, 1998, the lawyer sent an email that read in part as follows:

Your domain name,, has come to the attention of my client. I have every reason to believe that your selection of the "" domain name was a consequence of your first name, and not of any desire to create a likelihood of confusion with my client's valuable trademark. Thus, while the domain name dispute policy of Network Solutions would allow us to challenge your use of the "" name, my client would prefer to come to an amicable arrangement with you. Our proposal is that if you transfer your domain name to my client, it would reimburse you for the cost of registering any new domain name that does not contain "theos", as well as for any costs associated with that transfer. We would also of course prepare and provide you with the necessary paperwork. My client would also to agree to forward to you any electronic mail that it receives after the transfer that was intended for you.

For my younger readers, I should explain that Network Solutions is a domain name service, kind of like the GoDaddy of the 20th century. It is still in business today.

de Raadt did not take the THEOS Software Corporation up on its offer, although he was nice enough to place a message on his website clarifying that he was not the THEOS Software Corporation. Oh, and he also reprinted the original letter on his website, with some not-so-nice comments about the THEOS Software Corporation (pointing out that HIS OS was free and didn't cost money like the one that the THEOS Software Corporation promoted).

The lawyer noted this in a March 19, 1999 letter:

I previously made a courteous inquiry on behalf of my client, asking whether you might be willing to consider transferring the "" domain name to my client. In response to that inquiry, you posted my letter, without my permission, on your web site in an effort, as you put it, to show the customers of THEOS Software Corporation "what type of company they are."

We believe that your use of the "" domain name, which is without the permission or approval of THEOS Software Corporation, will create a likelihood of confusion with my client's THEOS mark. The fact that you believe the customers of THEOS Software Corporation will visit your website is an indication that your use and registration of the domain name is a violation of my client's trademark rights. Therefore, on behalf of THEOS Software Corporation, I once again request that you promptly either transfer such domain name to my client or cancel the domain name registration with Network Solutions, Inc, ("NSI").

Both parties were preparing for a battle. The lawyer for the THEOS Software Corporation was presumably preparing to contact Network Solutions to file a formal complaint, and to do who knows what else. Meanwhile, de Raadt was posting stuff on his website, including the latest letter. The battle lines were clearly drawn, with both parties prepared to stand on their principles.

But then a funny thing happened. As de Raadt put it,

Someone posted an article about the dispute to

Slashdot is still around today, and now (as in 1998) caters to the technically inclined. While both de Raadt and the THEOS Software Corporation are clearly technically oriented, and THEOS Software Corporation is much smaller than, say, Microsoft, it's fairly easy to predict how Slashdot readers would side in this particular battle.

People started sending complaint mail to Tim [the CEO of THEOS Software Corporation] and Michael [the lawyer]. In all, they must have received at least a thousand email complaints. I received about 300 copies of mail sent to these people. I am uniformly impressed with the quality of mail these people received -- very well argued and level headed statements. Some mails were from CEO's of 500 employee companies. Reporters mailed them. System administrators from large companies. Decision makers at companies who use their software mailed they, stating that the outcome of this was going to be a key to them buying more systems from Theos Software.

Now 1000 emails doesn't sound like a lot, especially when some of my readers probably get 1000 emails in the course of daily business. But remember - this was 1998, and the Internet was much smaller then.

The web server crashed.

The mail server crashed. This appears to be completely due to load.

Their voice mail system fell down under the load.

Similar problems were seen at the law firm.

According to de Raadt, it's possible that some uglier responses also occurred, but at least some of these responses were "well argued and level headed" - things that a company CEO and his lawyer would notice.

However, this does not negate the principle involved. As was laid out in the two letters, the trademark "THEOS" is of significant value to the THEOS Software Corporation, and therefore it is in the best interest of the corporation to protect it, even if a million emails were to arrived.

So the lawyer prepared a third letter on March 25, this time addressed directly to Network Solutions itself:

This firm represents THEOS Software Corporation. The dispute between THEOS Software Corporation and Mr. Theo de Raadt concerning the "" domain name has been resolved, and THEOS Software will not be making any further claim against Mr. de Raadt at this time or in the future under your company's domain name dispute resolution policy.


What about the principles involved?

The whole episode proves that in the world of business, some things that seem to be inviolable principles can be sacrificed if bigger issues come to bear. The truth is, the THEOS Software Corporation was (and is) a relatively small software company, and even if it was right in its legal argument, the company could have irreparably damaged itself in the tech community if it had insisted on pursuing the matter.

A more succinct explanation of this can be found in an old joke that Darkg0d recently reprinted:

An average looking man walks up to a rather attractive woman and asks her if she would sleep with him for ten million dollars. She smiles brightly and says “yes, of course”. He then takes ten dollars out of his wallet, hands it to her and says “how about for ten dollars?” With a shocked look on her face she says “what kind of woman do you think I am?” He replies, “we’ve already established that. Now we’re just negotiating the price.”
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