The iPhony-Should Apple stop imitators?

[Curious Cat]

Here is a link to a very well written article by our very own Editor-in-Chief, Ed Hardy (and his sister ). Ed brings up some very valid points and agree or disagree, you have to respect the well thought out logic behind the words.

I'm providing also a copy, in it's entirety below since it's so pertinent to this discussion:



As a person who reads Brighthand, you're surely familiar with Apple's announcement last week of the iPhone, its first device that will combine the features of an iPod and a smartphone.

But it's possible you haven't heard of iPhony, an application for Palm OS or Windows Mobile devices that will allow them to have something of the look and feel of Apple's next mobile device.

This did not escape the attention of Apple... and it's lawyers. Monday morning, sites all over the Web, including this one, got a "cease and desist" order telling them to remove all references to iPhony.

The Reaction

The reaction was virtually instantaneous. Many of the sites who had received the orders wrote angry editorials defending their free speech rights.

I know I'm swimming against the tide here, but I actually agree with Apple. I'm not one who generally likes to be pushed around by lawyers, but I can see things from Apple's perspective.

It seems to me that the whole point of iPhony is take advantage of Apple's hard work coming up with a new, unique user interface. I don't think the developer of the Palm/Pocket PC application was intending to charge for it, but I never like to see one person profit of someone else's work. Or do anything to take away from the real developer profiting from his efforts.

And, despite what some have said, I think that iPhony could easily take business away from Apple. If you have a Treo that works almost exactly like an iPhone, why would you buy an iPhone?

When it comes right down to it, the most significant differences between a Palm, Pocket PC, BlackBerry, or S60 smartphone are software. The user interface, to be exact. I suspect that many of you have strong feelings about what mobile devices you buy based entirely on the UI. The same is probably true about your desktops and laptops.

So you need to realize that UI's are very important to companies. They spend huge amounts of time and money working on them.

If you can accept that, you understand why Apple didn't just laugh iPhony off.

Warning, Legal Stuff Ahead

Also, there's the legal issue. I'm not a corporate lawyer, but as I understand it, if you don't actively defend your trademarked materials, you could lose it. I've been told that this is one of the things you absolutely have to do to protect your trademark.

You might not consider one single developer working in his basement making an application take looks a lot like iPhone much of a threat to Apple, but how about if it was Motorola? Or Samsung? Or Palm? That could happen, and if Apple went to court to stop this theoretical product, its lawyers would be able to make a strong argument that if Apple didn't try to stop iPhony, then its trademark should be invalid.

But let's not get caught up in the legalese. Just because something is legal doesn't make it right. The whole purpose of trademark law is to encourage companies to create new stuff. If they knew that someone else would immediately turn around and profit off it, why would anyone bother?

That's why I think Apple had to send out the "cease and desist" orders. Its lawyers probably knew they would be ignored -- and think I'm violating one just by writing this -- but it serves a larger point.

A Tough Call

Like I said earlier, I don't like to be pushed around by lawyers, and I support free speech as much as the next guy.

But there's another side of the coin. Just because a lawyer says it, doesn't mean that it's something I should automatically protest against. I try to see the bigger picture.

And, as a final bit, while can't approve of iPhony, I'm not trying to demonize its developer(s). Actually, I'm pretty sure he/she is just a person who likes Apple and thought it would be nice to share the iPhone user interface with other mobile users.

But perfectly innocent actions can have unintended consequences. That's why I have to be against iPhony.

[Nine]

I don't think I should be able to write a book, or design a user interface, or take a photo, copyright it in secret and then sue someone who later uses some of my wording, something like my UI, or takes a picture of the same landscape.

If your book was never published, then it would never be officially copyrighted - you might be able to claim intellectual rights but it would be very, very complicated to prove. Only if your user interface was distributed to nobody and shown to no-one would it remain secret - and if it was shown to no-one, once again you would not be able to copyright it in the eyes of the law. There is no way you can copyright the generic image of a landscape - just your particuar capture of it. The laws on copyright are falling way behind was is needed in our modern world, however, and I would be interested in seeing some test cases rather than expensive lawyers hollering at each other.

However, Apple have distributed enough shots of the iPhone for it to be evident that they will have some claim over the UI, the design and the graphics - it is plainly obvious that iPhony lifted as much of the exact look as possible.

For anyone to complain that they are not fully informed, in a preliminary cease'n'desist-style letter, on the nitty-gritty of what proportion of a published screenshot is actually the material in question would come across to me as mere obtuse nitpicking. What happened to good old-fashioned common-sense? iPhony near 100% pure copy of Apple's new interface featuring pretty-much the exact icons - Appple hacked off. It's not that complicated.

[PDA Bach]

However, the statement was that they were asked what was being infringed only to be told that it was't [our] business.
I agree that not having the book published would make it hard to be copyrighted--but it could be.
To continue your example though, I would then sue you for infringement (or threaten to do so) but refuse to tell you specifically what you had infringed. My response would be "'Your book'--but I don't have to tell you which words or phrases."
To me, the common sense aspect is not addressed by telling someone that they've done something wrong but what the transgression is won't be disclosed. I'm not arguing the intellectual rights here, only the statement that the copyright that was violated doesn't have to be disclosed.

[holvoetn]

I seem to recall one case of plagiarism in the music industry on material not yet published but the author was able to proof beyond doubt he created the score before the offender possibly could have done so.
Hard case, but if you can proof it, no arguments ...

[PDA Bach]

Again, though, it's that it was able to be proved. Which means disclosure. Proving it means that it went beyond "Oh by the way, something you produced violates my copyright but I don't have to tell you what it is so stop producing any music or else."

[Adama D. Brown]

Looks like it's time for me to pull out my big three-cornered Mr. Literature hat...

Technically, as soon as you produce an original piece of work that is qualified under copyright law, you own the copyright to it. However, in practice it's virtually impossible to prove a copyright unless you have dated evidence. For instance, if you wrote a book, stuck it in a drawer, then someone else wrote a very similar book two years later, you'd be hard pressed to prove that you wrote yours first, unless you'd done something to establish your ownership. For instance, for around $20, you can get a work recorded by the Writers Guild of America, at which point they will have a permanent record of your book and when you wrote it.

So, to try and bring this back to the topic, you can in fact own a copyright without anyone ever having seen the item. However, in order to enforce a copyright, you do as a rule have to not just have evidence of prior use, but to present it and prove that the other work is infringing, otherwise you'll get laughed out of court.