do not annoy me
March 5th, 2007, Tomasz Rychlicki
Apple is not so cool, fresh and trendy, a group of people became convinced by that fact some time ago. Apple sued couple of folks for publishing information about new products branded by the sign of a bitten apple, which were not at stores at that time. Details and materials about this case are available at www.eff.org website. Apple lost this case and was ordered to pay attorneys fees. Two days ago a person called Tzywen published on Youtube a short movie how to emulate iPhone’s interface on a Pocket PC device. Unfortunately, after Apple’s intervention, Youtube removed it. More details at www.tzywen.com website (this website is temporarily unable to work because the bandwidth limit was exceeded). This presentation is once again posted on Youtube of course. Watch it for yourself.
I can add from my point of view that such Apple’s actions start to annoy me slowly (as a lawyer even more). I put here a copy of the mentioned and presented above movie in a case they would try to removed it again . It is published in the FLV format. I suggest you to use VLC software to watch it. It works with almost each operating system and its free - just the magic FLOSS abbreviation.
I have a brief statement for Apple and its lawyers at the end of this post. If you want to sue me, you are warmly invited. Please do not hesitate to do so. If you need any personal and address data to fill your petition please contact me quickly.
Update March 06, 2007.
Youmolo (Tzy) removed pictures from his website. I asked him to sent them to me and here they are: eteniphone1.jpg, eteniphone2.jpg and eteniphone3.jpg. No Apple! I am not going to remove them.
Update March 07, 2007.
Youmolo wrote about my help at www.tzywen.com website. Here are some additional thoughts. First, let me cite a fragment of the letter from Apple’s lawyer to Youmolo.
Re: iPhone Interface on a Pocket PC
Dear Sir:
We represent Apple Inc. (“Apple”) in intellectual property enforcement matters and are writing to you regarding the recent Internet articles and postings about what you claim is a clone of the interface of Apple’s iPhone product.
In addition to seeking patent protection, Apple is also the owner of various U.S. and international intellectual property and other enforceable rights covering the iPhone, including its design, software, display, icons and interface.
Because we believe the software program that you say you authored and describe as an “iPhone interface clone” is an infringement of Apple’s rights in violation of U.S. and international laws, and because you may make the software commercially or shareware available, it is in both of our interests that you clearly understand that Apple takes matters of this kind very seriously, and is prepared to takes steps that are necessary to protect its rights.
While we appreciate your attention to the iPhone, in consideration of Apple’s rights, which you appear to anticipate exist in your Internet postings, we request that you promptly: (i) cease the development and distribution of this software, (ii) take steps to remove any postings of the software or videos featuring the software from any website or server under your control, and (iii) destroy any portion of the software that infringes Apple’s rights or otherwise violates applicable law.
We appreciate your prompt cooperation and compliance with this letter.
Sincerely,
David J. Miclean
Now, let me take a short position on Apple’s claims. I do not want to discuss a form of this letter. Some scary socio-techniques do not make an impression on me. I am a badass lawyer. I prepared a really short memo how would I answer to Apple’s lawyers.
1. What law should we apply? There are some questions. Youmolo created his software, pictures and movies in Malayasia and he is a citizen of this country. Apple Inc. is in the USA (Cupertino, California). Youmolo’s works are available in the Internet. Apple’s IP rights are territorial. I do not want to get into many jurisdictions aspects of the US and international copyright law. Let me focus on Apple’s statements based on the US copyright law.
2. To what Apple’s IP rights its lawyer refers to?
A. They can claim copyright protection to icons and a wallpaper only.
I could argue if such icons should be copyrightable subject matter under the US law - aren’t icons useful articles? As I said I could argue about that. No time for that. I am not paid $500 per hour. ;)
B. Apple is seeking for patent protection.
So what? Briefly. What has it in common with the software written by Youmolo or pictures and a movie he made? Was this patent already issued? Wait, no! They are seeking for that. In what country does Apple seek for patent protection. Is software patentable under those countries national patent laws? Does Apple seek for patent protection for menu or a slider? Let them learn about the non-obviousness test step in the US patent law.
C. Does Apple have copyright to menu?
If this is what they mean by the interface then it can not be copyright protected in the USA. Ideas and procedures of the iPhone software/menu/interfaces are not copyrightable subject matter under US copyright law.
D. Does Apple have design patent’s right to iPhone?
Sure, they can claim that (if such design patent was granted) but Youmolo do not use the iPhone design at all.
3. Apple claims that Yomolo software ifringes their IP rights.
I asked above to what rights Apple’s lawyer refers to. Youmolo did not copy the iPhone’s software so there is no software copyright infringement. There is no “iPhone patent” so there is no patent infringement and he does not use iPhone design. Youmolo used some iPhone’s icons and wallpaper in early version of his software. It may be an infringement. There is a simple solution for that problem. Just change those icons and wallpaper in Youmolo software.
4. Apple’s requests.
A. “Cease the development and distribution of this software”.
I. Cease the development. Very funny, really. On which ground they claim that? Is he their employee? Is this work made for hire or contracted somehow? Youmolo created fully independent and new software for other platform.
II. Cease the distribution. On which ground? Youmolo did not copy Apple’s software. Youmolo did not infringe any portion of Apple’s iPhone software. He is the author of his own work. He can do whatever he wants to do with it.
B. “Take steps to remove any postings of the software or videos featuring the software from any website or server under your control”.
I. Remove posting of software. On which ground? Do they claim copyright to Youmolo’s software?
II. Remove videos/pictures featuring the software. Does Apple claim copyright ownership to those pictures or video?
C. “Destroy any portion of the software that infringes Apple’s rights or otherwise violates applicable law”.
I. The most funniest part of this e-mail. I laugh each time I read it. Let me answer to this dumb claim by a small analogy. Dear Apple you can use copyright to promote the progress of useful arts not to destroy it! I would also recommend Apple’s lawyers reading more about copyright misuse doctrine.
So what can Apple do? Well. They may sent another so-called “DMCA notice of takedown” to Youtube. Google and Youtube will comply with it probably. They are too lazy and too busy to think about the legitimacy of Apple’s claims. They may sent another letter to Youmolo. It is up to him if he give up. They should sent me a letter. I already published pictures and the movie and I am going to publish the mentioned software here. Dear Apple, you already have a contact link to me. But. If you would like to “threat” me, then please, consider that I am a citizen of Poland. We do have our own legal system. Please prepare each of your legal corespondence to me in my native language. The final word will always be said by the proper court.