Could Apple's Lawyers Really Not Understand That Reporting Isn't Copyright Infringement?

from the seems-unlikely dept

Apple is notorious in the legal efforts they undertake to keep their secrets secret and to protect their intellectual property. However, it seems that some of Apple’s lawyers may have a trigger finger that’s a little too itchy. Following the announcement of the iPhone last week, someone created a skin for Windows Mobile devices that looks just like the iPhone’s interface (though, of course, it doesn’t actually work like the iPhone interface). It’s reasonable to expect that Apple’s lawyers would try to stop the person who created the software from distributing it (which would certainly be a reasonable trademark claim, though, not a particularly useful one). However, rather than doing that, they’ve been sending cease-and-desists at any blogs talking about it and posting the images of the Windows Mobile skin. It’s clearly not a trademark infringement to report on the situation, but here’s where Apple’s lawyers get even odder. Rather than claiming a trademark infringement claim, they’re actually calling it a copyright infringement issue — which isn’t just wrong, it’s egregiously wrong.

The lawyers claim copyright over the icons, but you can’t stop someone from using them in a report about them, which is clearly fair use. It’s also not trademark infringement (if they decided to go down that route). It’s just bullying. Michael Arrington, over at TechCrunch, has posted the image as well, pointing out how ridiculous this is. Some of the comments to his post show the level of confusion out there around the law. It is true that if you don’t protect your trademark you can lose it, but that’s not what’s going on here at all. First, it’s not trademark law they’re using, and the same thing doesn’t apply to copyrights. Second, even if it was trademark law they were using, they wouldn’t have a case against those who were simply reporting the story and showing the image (they probably would against anyone selling the software, however). It’s yet another example of lawyers simply using intellectual property law to bully those who are doing something they don’t like, not something illegal.

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Comments on “Could Apple's Lawyers Really Not Understand That Reporting Isn't Copyright Infringement?”

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John says:

not stupid lawyers, stupid companies

Hey ScytheNoire,

Don’t blame the lawyers, blame the companies that hire the lawyers. The company behind the lawsuits in this posting is Apple. Apple isn’t actually a very nice company, if you think of the sweatshops they run (OK, they don’t run them, their vendors do); all of the cease-and-desist mails they have sent; their completely closed DRM solution and insistance on DRM usage.

Brad Eleven (profile) says:

Re: not stupid lawyers, stupid companies

Sorry John, it’s the lawyers who treat the law as a business opportunity. Even if their corporate masters suggest that they focus on filing suit for profit, it is the lawyer who has the expertise to execute the command.

I’m a sysadmin, and I’ve just left a mutual fund trader where I was asked to do something I found unethical. Having been a contractor, there was no exit interview, and I’d have had to file my own complaint to the SEC, had it not been for me running into my boss’ boss’ boss’ boss, literally on my way out the door. I told him, and he said, “That’s not just unethical, it’s illegal.”

I’ll be deposing to the SEC Wednesday week.

The request was totally within my power and expertise. If I hadn’t said, “No,” the deed would have been done. Sure, the errant manager who wanted to clobber the logs might have found someone else to do his dirty work. I’m saying that the person who pulls the switch, executes the command, or files the brief bears no more responsibility than the executive who issues the command. The executor is distinct from the executive.

The infamous Joe says:

Path of least resistance.

I’d like to express that I think this is silly at best– closer to shady and underhanded, really.

Now that that is out of the way– the serious problem is that their shady, underhanded tactics *worked*. When presented with a company the size and scope of Apple, I’m sure anyone of us without formal legal training would roll over and play dead.

Of course, if it works so well, why would Apple’s lawyers stop?

that guy... says:


lawyers are infamous for calling bluffs. If it works, so be it. I did not catch if the letters sent by apple were email or snail mail…

If they were snail mail, I’d just ignore it. Or, get rebellious and tell them off.

At least here in the US, official record of receipt must be recorded in order for the notice to be legally binding. That means, they need a certified letter via US postal service, or they need someone to hand you a physical letter.

In the case of an email… it’s a bluff.

IPud Puller says:

Brilliant Business Strategy

I think Apple to take it one step further and send notices to all media companies to not show any footage or report about any of the features of the IPhone.

That way we don’t have to be bombarded with Apple’s propaganda machine.

Gee….where is the little “Kewl” dude in the jeans from the Apple commercials now? Bent over a table with a line of lawyers behind him.

Herbie - A Love Bug says:

Weak Products = Legal Wrangling.

Poor Apple, I could only imagine their horror when they saw their pretty iPhone interface as an MS-Mobile startup screen. Cold sweats and four letter exclamations must of ruled the day.

Apple does not like competition especially in the ‘cool’ department but they have a problem with the iPhone. Aside from OS 10, it’s a relatively weak and poorly differentiated offering.

I’m sure the OS 10 aspect of it will greatly enhance it’s usability in the future, but my opinion is that Apple has a huge job in front of them gaining mind share for this device from a customer base that is constantly fighting the cellular companies for cheaper rates and free stuff.

Keep in mind, the Treo/Blackberry/MS-Mobile crowd is a very small and hightly specialized percentage of the overall customer base.

Now, it takes alot of money to mount a trademark or patent infringement suit. But sending cease and desist letters based on copyright is cheap and easy and if you scare easily as most people and ISPs do, it works. And what’s the damage if you sue Apple for being wrong? Not much, all a judge is going to do is tell you it’s up to you to interpret the law for yourself or retain a lawyer to do it for you. In this case, Apple has everything to gain and nothing to loose if their strategy works AND they keep things relatively quite and off the mainstream media’s radar scope.

This strategy by Apple, while legally incorrect, is typical of creative legal scheming. They know that sometimes, a sniper’s bullet can send a stronger message than a platoon of tanks.

misanthropic humanist says:

lawyers are accountable too

I’ll be deposing to the SEC Wednesday week.

Good for you Brad. And even if nothing comes of it you can hold up your head high and know you did the right thing. If only more people like you had the courage to confront corruption and abuse we would see some serious social changes for the better.

Just yesterday the US Congress began a bill to strip members of their lifelong pension rights if they’re found to be engaging in corruption. Perhaps this significant gesture shows the tide may be about to turn.

Likewise, lawyers can be stripped of their licence to practice. A lawyer cannot break the law. Furthermore lawyers are held to even higher standards, they may not misrepresent the law. This seems to be the case here. If it is, then the blog owners should not even bother contesting the ceasement notices, they should begin immediate action to have the lawyers struck off. That will put the shit up them.

Tyshaun says:

Re: I think its time to stop

I think its time to stop supporting companies that are off on this type of tirade. I’m so sick and tired of this crap. From now on its nondescript, generic hardware

Not to get all negative on your solo-tiraid on nepharious corporate practices, but how many companies you think wouldn’t behave this way if given the opportunity? Most companies that succeed in our system do not do so strictly on the merits of their products, even those that potray themselves as against traditional corporate cultures of corruption. I would challenge someone to come up with a list of “significant” hardware or software vendors who have not been accused of hitting below the belt from time to time, and I will assert that would be a very short list indeed.

misanthropic humanist says:

orders are no excuse

“I’m saying that the person who pulls the switch, executes the command, or files the brief bears no more responsibility than the executive who issues the command…”

Perhaps you meant to say “..bears no less responsibility..”, if so I apologise, however if not this is a very important point that is worthy of a separate reply.

“Just following orders” is not a valid excuse. It was not a valid excuse for the concentration camp guards who threw people into ovens. Regardless of the illegal dictates of Mr Bush that his countrymen are above the Geneva convention it is no excuse for soldiers who may be charged with murder or manslaughter in times of “war”. These were the findings at Neuremburg and they stand today. American or British servicemen who engage in murder or torture will find no sanctuary, the moment they step onto the soil of a civilised country they may be arrested and tried at the International Criminal Court. The fact that the USA claims not to recognise that court will not protect them.

“The executor is distinct from the executive.”

Absolutely, but no less culpable.

Johnny Appleseed says:


Let’s hope Apple is SUCCESSFUL in suing the reporters blind and that no reporters will ever use Apple product images in their stories again, or even their own independent photos of Apple products. I mean, using the Apple image clearly does NOTHING for Apple’s sales, as anyone who can read and who is even interested in news rather than SpikeTV-ish television is already too intelligent to be lured into Apple’s web of DRM. The only thing these reporters get by using Apple’s image is exploiting Apple’s products in order to boost their own click fraud levels. Surely Apple deserves a piece of that pie, so let the lawsuits be their way of cutting out their share. And if reporters feel that’s unfair, aren’t there already enough public-domain images of dog crap that they can use to accurately represent the product instead??

As an aside, I think now that Apple has become Apple Inc. instead of Apple Computer Inc., the Beatles and the folks at THEIR Apple should fire up their lawsuit again. Because sure Apple *COMPUTER* won last time, but part of the argument there was that no one would confuse Apple Computer Inc. with the Beatles’ Apple because the word Computer so clearly put Apple in the computer industry, not the music industry. Picture Jobs foaming, “WE’RE APPLE *COMPUTER* FOR CRIPESSAKE!! ARRRGHGHGHGHGH ! ARRGHGH! ARGHGHGH! *COMPUTER* SEE ! ARRRGHH! ” What’s he gonna say this time around?

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