Copyright lawyer taunts Apple in open letter, releases Pocket PC iPhone interface

Click to zoom. Posted by dennis on April 10th, 2007 at 07:24pm Comments

Tomasz Rychlicki, an intellectual property lawyer, is taking on Apple’s legal. Apple’s legal department recently went after a number of authors of “iPhone” interface skins for various mobiles, accusing them of copyright infringement and sending cease and desist letters.

Mr Rychlicki, who is an author of several books on copyright and intellectual property issues, cites precedents from US legal system, according to which he claims Apple’s accusations of copyright violations on the part of iPhone skin designers are baseless.

He also posted an iPhone PPC interface which you can download (and read a part of his reasoning for doing so) below, while the full version of his statement (including links to relevant precedent rulings) is available on his site.

Direct download:
- iPhone Pocket PC Interface Skin (1.34 MB)

Since Apple’s lawyers based its claims regarding to the U.S. copyright law I will write about all legal issues in the context of the U.S. legal system. Can Apple claim copyright to iPhone’s menu hierarchy? I do not think so. Just read what Judge Stahl from the 1st. Circuit Court said in the case Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995), PDF file. The court ruled that menu command hierarchy was uncopyrightable. Enough to say, as a method of operation it was foreclosed from copyright protection.

Can Apple claim copyright to iPhone’s icons? I could argue that under the U.S. copyright law icons are not copyrightable subject matter. RE’s software consist icons that are not the same that Apple is using in its future product. As an example and to avoid allegedly copyright claims I asked my friend Adam Zawiasinski who is a webdesigner (I want to give him a big credit so please go and see www.zawiasinski.pl website) to prepare simple comparision and to make icons in the same style. You may see all of them in the topic of this post. Here is also a bigger file (JPG, 175 KB), with better details. For your comparison, here is RE’s software with Apple’s icons - res_ppc-apple.icons.zip (1,4 MB file). If Apple would like to make any “legal troubles” I recommend you to change those icons, or in my case, I will probably put it somewhere else. I mean P2P networks or different hosting websites. Once released it can’t be stoped right?

Can Apple claim copyright to iPhone’s wallpaper? Well, let me put it this way. Some U.S. courts do not consider “real-life” photos as a subject for copyright protection. See for instance a judgement in the case Bill Diodato Photography, LLC v. Kate Spade, LLC, 388 F. Supp. 2d 382, 2005 U.S. Dist. LEXIS 21360 (S.D.N.Y. 2005), PDF file, where Judge Denny Chin ruled that almost every part of a photograph, that was a subject of this dispute, lacked an ability to earn a copyright protection. The iPhone’s wallpaper is changed to other wallpaper but also with a Clownfish (to be exact - with two Clownfishes). The picture that has been taken for this purpose is in the public domain.

As regarding to the software I publish. Apple can not claim copyright infringement on any reason. Apple did not release iPhone device and its software so far and RE’s programer had no access to it. If Apple’s lawyers want to claim that RE’s software is somehow a copy I recommend them to run the “Altai test” as established in the case Computer Assocs. Int’l v. Altai, Inc., 982 F.2d 693, 1992 U.S. App. LEXIS 33369, (2d Cir. 1992), PDF file. Actually everyone could perform such test for its own. You got the judgement’s text. Additionaly, I provide you with the source code but hmm… there is no Apple’s code. How could it be copied then?

At the end of this post I would like to write that I respect what Apple did for the computers’ market, I like their design approach. I know that they very ofthen care about their consumers. I’m pretty sure that this situation will not make Apple’s clients confused about the new product - iPhone. Actually, I am going to buy one for me.

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Pat

No doubt Microsoft is paying a gaggle of shyster whores to diminish the truth in an attempt to compensate for their complete lack of ability to innovate, leaving them sadly to cheap mimicry and shams as their only remaining tricks.

Microsoft's only option has been to lie and litigate, since the dinosaur is dying and will use any means possible in it's repertoire of illegal tactics to desperately appear to be in the game or at least somehow relevant. Even the decidedly uninformed and stupid are no longer falling for this ruse and Microsoft are very desperate indeed.

Terrin

The lawyer has a strong argument on the iPhone’s menu hierarchy. He also has a strong argument on the actual code used to write the iPhone copycat interface.

However,he goes astray on the Desktop and Icons. For starters, Bill Diodato Photography, LLC v. Kate Spade, LLC, 388 F. Supp. 2d 382, 2005 isn't even relevant. First, it is a District Court case. A good lawyer would never cite to a District Court case in a Brief unless there was no other binding precedent from a higher court. Obviously, he does not have any or he would have cited to that instead. Besides, if Apple sues him, he will be defending himself on Apple's home turf in California not New York where that case was decided. Second, most real life photos are copyrightable. The case he cited merely found the subject matter of the photo uncopyrightable because the composition of the photo was the same theme that has been repeatedly used in several magazines. Consequently, the Court concluded the photo was unoriginal, which is required fro something to be copyrightable. Pretty weak, because as the Supreme Court said one only needs a "modicum" of originality. Surely, everyone of Apple's desktop pictures meet that standard especially. That case would most likely be reversed on appeal.

Second, icons are copyrightable. Merely changing around a few details is merely making a derivative work of the original which is a no no. The lawyer should look at Apple Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) (yes, a Circuit case). There Apple claimed Microsoft infringed upon over 189 GUI elements, including icons. The judge admitted that most of the elements were in fact copyrightable, but that Apple licensed the right to Microsoft to use the elements thus it did not infringe Apple's copyrights by using the elements. In fact, if I recall the Court found that some icons from Hewlett-Packard's now-forgotten NewWave windows application did infringe Apple's copyrights in its icons. All what HP did was change a few details around.

In my view, half of the lawyer's argument's are weak.

Terrin

Why was my comment removed?

dennis

Terrin,

Thanks for expressing your view on this :-)

I agree that you do seem to have a point on photography and copyright.

However, about the icons, I am not 100% convinced in your argument. The icons were made from scratch, without an original source available to copy (which is a major difference between the Apple vs. Microsoft case you're citing). It's especially important that they relate to an unreleased product that he as an enduser never had a chance to touch. Therefore his icons can never be 1:1 to iPhone's real icons. It's like making your own version of a Picasso painting you don't have access to -- it will never be 1:1, and I doubt any court would believe that you're infringing copyright.

P.S. Your comment wasn't removed -- it just took its time to appear -- we manually check each comment so our readers won't have to read spam.

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