Don't Make An App That Shows You 'Drinking' Liquid From Your Phone, Or One Company Might Sue You

from the drink-up dept

A few years back, we wrote about how indie iPhone app developer Hottrix had sued beer giant Coors for making a competing beer app. Hottrix, of course, makes various gimmicky apps that make your iPhone look like it is full of some sort of liquid that "drains out" as you tilt the device to make it look like you're "drinking" from the phone. They're pretty silly, but some people have liked them and were actually willing to give Hottrix money for them. One of Hottrix's apps was iBeer. Coors created their own beer drinking app, called iPint, and offered it for free. That's when Hottrix sued. I can't find any information on what happened to that lawsuit. After it was filed nothing much seems to have happened. Perhaps it was settled out of court?

Either way, Hottrix seems to have learned a simple lesson: if some big company makes any sort of "drinking app," be sure to sue. The latest target is chocolate giant Hershey, which made a chocolate milk drinking app which wasn't even a "clone" of Hottrix's app. After Hottrix threatened to sue, Hershey sued first for declaratory judgment and Hottrix counter-sued. Hershey reasonably asked the court to dump Hottrix's lawsuit, but the court has refused. I'm having trouble understanding why. It is true that Hershey had first reached out to Hottrix about having it make a similar app for Hershey, but even after Hershey went to another developer instead, it's hard to see what is "protectable" under copyright that Hershey copied here. As has been pointed out over and over again, copyright doesn't protect the idea, just the expression, and this appears to be an entirely different expression, even if it is based on the same idea.

The case might still turn out in Hershey's favor, but the judge is claiming that a full trial is necessary, as Hottrix has sufficiently pled its case, though I'm still trying to figure out how that's possible. As you read the details of the case, you realize that Hershey's app is actually quite different than Hottrix's. Yes, both involve the basic idea of drinking, but Hershey's app has different features. You don't "drink" out of the corner of the app, but out of a "straw" that you add to the app. The Hershey's app includes (not surprisingly) the ability to add chocolate syrup to the milk -- which Hottrix's app does not have. The court argues that because Hershey had obviously seen the original app, and that its own app is similar enough that this issue needs to go to trial. However, given the fact that it's difficult to see what's protectable, this seems like a huge waste of court resources. Hopefully the court realizes this eventually, but it seems like a waste of time to have to go through a full trial to make the obvious point that Hottrix doesn't deserve a total monopoly on "drinking" apps.


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  •  
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    Anonymous Coward, Jan 11th, 2011 @ 1:49pm

    This seems squarely on the side of "We want to stop you from doing something similar to what we did".

    On the other hand this only works to weaken local markets on the grand scheme of things where really matters there are no such restrictions, take the Chinese J-20 Stealth Fighter for example is anybody going to sue the Chinese government for having developed their own stealth jet? are those people really thinking they can stop other countries from making things because of some arbitrary rule that could harm them immensely? or they will do like the USA and ignore those things when it is to their advantage?

    In the meanwhile, the local eco-system that could produce vibrant things that people could use and would be willing to pay for is being destroyed by such pernicious laws that reward laziness and parasitic behavior, this leads to bailouts of companies that no longer are able to compete and get trashed by the competition on a global scale, this is what is really destroying jobs inside America, this is what gets me agitated sometimes.

     

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    pegr, Jan 11th, 2011 @ 1:50pm

    The problem with copyright and computer code

    Since you can only copyright a creative expression, I've always wondered what actually constituted a creative expression when it comes to computer code. Anything cranked out by a novice would certainly be insufficiently creative, would it not?

    More to the point in this case, it's the code that's copyrighted, correct? The result is the application, of course. But since it's the code that's copyrighted, how can the result be copyrighted? "Look and Feel" play into it since the Lotus 1-2-3 days, but I don't have a good grip on "Look and Feel". And since "drinking" from your phone is kind of obvious, how can it be "sufficiently creative"?

     

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      Jason, Jan 11th, 2011 @ 2:59pm

      Re: The problem with copyright and computer code

      Read it again. The "Look and Feel" element is part of the Trade Dress (and unfair comp?) claim, and not the copyright claim.

      The judge's wording actually seems to suggest agreement with Mike that there's really no evidence from the descriptions that Hershey has copied anything, but he seems to be saying that a lack of evidence is not enough to keep Hottrix from presenting whatever evidence they may have - which makes perfect sense to me.

       

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      Anonymous Coward, Jan 11th, 2011 @ 4:22pm

      Re: The problem with copyright and computer code

      I think denial of summary judgment was clearly appropriate here.

      It's true that ideas are not copyrightable, but expression is copyrightable. However Mike and Hershey's brief both seem to be confused about what part is the idea and what part is the expression.

      Look and feel is absolutely copyrightable. The idea here is the idea of a drinking app and the expression here is the actual behavior of the drinking app. Hershey's certainly copied the drinking behavior. Drinking behavior isn't that creative. However, the creativity bar to get a copyright is really, really low. Most courts would find drinking behavior to have a "thin" copyright giving protection against direct copying but not all possible drinking apps.

      Thus, the question of infringment is whether the two apps are identical, therefore direct copying (infringement) or the apps are completely different, outside the bounds of a thin copyright (no infringement). I haven't seen either of the apps, but I suspect they are similar in some ways but not identical. A pretty textbook denial of summary judgment.

       

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        Anonymous Coward, Jan 12th, 2011 @ 11:00am

        Re: Re: The problem with copyright and computer code

        >Look and feel is absolutely copyrightable

        Provide multiple instances in case law where this principle is upheld (and NOT in trademark law or 'trade dress', as that is not copyright)

         

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          ltlw0lf (profile), Jan 12th, 2011 @ 3:53pm

          Re: Re: Re: The problem with copyright and computer code

          Provide multiple instances in case law where this principle is upheld (and NOT in trademark law or 'trade dress', as that is not copyright)

          I doubt very seriously that Look and Feel is copyrightable, otherwise the big software vendors would be falling all over themselves to sue each other, since they all have very similar look and feel to each other.

           

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    Michial Thompson, Jan 11th, 2011 @ 2:24pm

    Waste of time that is necessary

    Mike;

    This is one of those cases that you really SHOULD want to go in front of a jury. If it's thrown out by the judge it does nothing other than fail.

    BUT if it goes in front of a jury, it then gets a ruling on the books, and depending on what that ruling is it has a chance of making a difference.

    Software IP Rights are an absolute MESS world wide, and something needs to be done to clean up that mess. Getting rid of of the IP rights isn't the answer because Software is truly the 21st Century equivilent to the Industrial Revelution. Software is making things possible that weren't even dreamed of 50-100 years ago.

    The problem with it is that the courts and companies are in situations where protecting actual advancements and developments are watered down by Software and Process Patents than deminish the value to the actual innovators.

    Just read through the comments on any article you post about Software Patents. You see the gambit from ignorant to obsurd. On the ignorant side you see claims that there is nothing new in software development, and that everything is built on previous works. On the obsurd you see the freetards (I like that term) that feel that noone has the right to protect their software from intellectual theft.

    The problems as I see it stems from Process Patents, and seems to branch out from there. Once they allowed patents on processes the Patent Trolls started trying to lock down every posible business process that could be imagined. These processes have been around for centuries in most cases, but because they were moved to computer software someone gets the idea that they can patent it and stop the process from being used without royalties.

    Then there is the ignorance of what Software really is, and this is where software falls into both a Patent Idea and a Copyright Idea. Software is more than just the sum of it's lines of code. ANY program can be re-written in any language, or even the same language to satisfy that it is a new creation under Copyright Laws. Hell in a lot of cases the entire process can be automated to make the theft as simple as a button click.

    Software's specific expression, or code does fall under Copyright because it is actually a form of writing. BUT the sum of the code still has to be protected for the Rights Holder too because the value is in the Sum of the code, not in just the code it's self. This is where the Patent does fall into place, BUT the patent process has the flaw that the patents are so vague that they do more damage than good.

    Under Copyright Laws the code is protected WAY WAY past its useful life which is not reasonable either, then under patent laws the process allows for abuse too.

    The truth is that Software as well as any process type protection should honest fall under a seperate category completely that restricts the abuse a little better on both sides of the law. You should not be able to protect ANY PROCESS that was in place before a certain point in history.

    For instance the Collect Call. ANY protection that a collect call would have had should long since be dead, yet there are dozens of issued patents that do nothing by apply the process of a collect call to a niche industry and turn around and protect it for another 25 years JUST because it now uses a computer system to implement the same process.

     

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      ChurchHatesTucker (profile), Jan 11th, 2011 @ 4:37pm

      Re: Waste of time that is necessary

      Getting rid of of the IP rights isn't the answer because Software is truly the 21st Century equivilent to the Industrial Revelution.

      You're comparing Apples and Apple-pickers. We're not replacing the Cotton Gin with software.

       

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      Almost Anonymous (profile), Jan 12th, 2011 @ 10:13am

      Re: Waste of time that is necessary

      Agree with you that this case going to trial could make a difference, for better or worse.

      TOTALLY disagree with you that software should be copyrightable in any form whatsoever. That just opens too big a can of worms, as we are seeing now.

       

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        Anonymous Coward, Jan 12th, 2011 @ 11:06am

        Re: Re: Waste of time that is necessary

        I'm in the "software shouldn't be patentable whatsoever" camp, but copyrightable? Really? Even open source software would break down in that instance, if every last thing was in the public domain (open source licenses are enforced through a system of copyright!)

         

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          ltlw0lf (profile), Jan 12th, 2011 @ 3:58pm

          Re: Re: Re: Waste of time that is necessary

          I'm in the "software shouldn't be patentable whatsoever" camp, but copyrightable? Really? Even open source software would break down in that instance, if every last thing was in the public domain (open source licenses are enforced through a system of copyright!)

          There are other, more well known, entities that believe this as well. RMS has said that the reason for copyleft is because copyright exists...and without copyright, copyleft wouldn't need to exist.

          I, on the other hand, have no problems with software copyrights, if they were limited to the original 18 years plus one non-automatic extension. And if they were limited to actual implementation (not just look and feel) of an idea, and not the idea itself.

           

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      Anonymous Coward, Jan 12th, 2011 @ 11:05am

      Re: Waste of time that is necessary

      >You see the gambit from ignorant to obsurd

      "gamut"
      (and ABsurd)

      Speaking of ignorant and absurd (irony of making the above mistakes while calling others stupid aside), you're ranting about how software patents are righteous and somehow you're the only one with the right view on them (as if your ideas are novel), and yet, you have to actually REGISTER for a patent which was not done here, so you're just going off on a tangent that you had bottled up inside you.

       

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    Anonymous Coward, Jan 11th, 2011 @ 3:42pm

    Bet the guy that makes the "smoke a bowl" and "snort a line" apps is seeing $$$.

     

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    Allan, Jan 11th, 2011 @ 5:06pm

    I remember having similar apps 10+ years ago on handheld devices and even similar stuff on "PC"s before that but now there is technology to make it sound more real and sense the tipping etc. So who is copying?

     

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    Pixelation, Jan 11th, 2011 @ 10:39pm

    Milk shake

    my iphone app brings all the boys to the yard and they're like it's better than yours, damn right...

     

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    Dom Martin, Jan 12th, 2011 @ 2:32am

    Yep. It's utterly baffling.

     

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    Dom Martin, Jan 12th, 2011 @ 2:38am

    I forgot to mention that iPint did it first. Hottrix was just that, a trick, that used a pre recorded video of a beer being tipped. iPint was real in that it used the accelerometer to simulate real tipping, which Hottrix then copied. Fact.

     

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    javier, Jan 13th, 2014 @ 5:11pm

    app.cat / hotrix / scam / fraud

     

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