Apple falsely accuses Aqua-based sites??


  

68 members have voted

  1. 1. Apple falsely accuses Aqua-based sites??

    • I bought a Mac after using an Aqua Skin.
      4
    • I own a Mac and PC, use skin to familiarize the two
      7
    • I was or am going to buy a Mac, due to use of skin
      19
    • I am no longer going to buy a mac, due to Apples actions on skin sites
      34
    • I have or am going to sell my mac based on Apples actions
      4


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Dear ********

We represent Apple Computer, Inc. ("Apple") with respect to its intellectual  

property matters. It has come to our attention that you are offering for  

download on your web site various skins, themes, wallpaper, icons, and other  

materials for Windows XP, which are identical and/or confusingly similar to  

Apple's Aqua theme for its MAC OS X (see  

http://www.osxp.net/osxpindex.html).  

You should be aware that your actions constitute infringement of Apple's  

intellectual property rights under various federal and state trademark,  

copyright and unfair competition laws, which may subject you to serious  

civil and criminal penalties. By publishing these infringing skins and  

allowing the public to access and download them from your web site, you also  

are engaging in contributory infringement of Apple's copyrights, trademarks  

and trade dress. Your unauthorized actions also may damage our client's  

reputation and result in the dilution of our client's famous trademarks.  

Accordingly, we demand that you immediately cease and desist from  

distributing all skins, themes, wallpaper, icons and other materials for  

Windows XP which are identical and/or confusingly similar to Apple's Aqua  

interface for its Mac OS X.  

Please note that a letter may also be sent to your Internet access provider  

as notice that its services are being used to infringe the trademarks and  

copyrights of others.  

We ask that you immediately send written confirmation that you have complied  

with our demand. The foregoing is not intended as a complete statement of  

Apple's position on this matter, and nothing herein shall be deemed to  

constitute a waiver of any of Apple's rights or remedies at law, in equity  

or otherwise, all of which are expressly reserved.  

Sincerely,  

Fabricio Vayra  

202/857-6130  

vayraf@arentfox.com  

Arent Fox Kintner Plotkin & Kahn, PLLC  

1050 Connecticut Avenue, NW  

Washington, DC 20036-5339  

Phone 202/857-6000  

Fax 202/857-6395  

www.arentfox.com  

My point...

what does this letter really say. ??

* an intelectuall copyright has been broken...

Yes.. a copy right has been broken.. but... in the world of Intelectual Copyright.. there is a thing known as Fair Use...

(EG... back-up purposes, letting a friend borrow a tape)

Fair us in not excusable when:

* the product is being re-sold...

* the use of product will detract from profit of said product

* the use of product will make product "look-bad"

(give a false sense of the true product)

do aqua-sites fall under fair use ?

i believe so...

seeing as how

* most aqua sites are run by Mac/PC users...

* most aqua skins are created by Mac/PC users

* those that are not.. are most likely ports that were created

by a Mac user.

* having a Mac based skin on windows has been shown to have

a positive effect on Apple (by means of Windows users buying

mac computers)

Apple lawyers have told us that we (the Windows skinning community) make Mac OS look bad.. and that we detract from the sales of Mac OS.. thus hurting Apple...

is this true ??

PLEASE.. reply to the poll....

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Assuming I can build up the money, I will be buying an iMac sometime within the year. I think Apple's actions are wrong in this case, and at the same time I want to show that Apple is attacking the wrong source...

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Apple lawyers have told us that we (the Windows skinning community) make Mac OS look bad.. and that we detract from the sales of Mac OS.. thus hurting Apple...

hurtin apple i think not because me a PC user ( that i worked hard to get ) went and got a PC not because i could get my PC to look like a mac but because thats what i wanted ! i think the true mac and window users will see though the fog of this so called false sense of the true product.

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For this to be determined correctly it will need to be tested in court.

The letter being issued by the Apple lawyers is not a ruling , it is and will remain so until tested thier opinion only.

There was no need to take the sites down based on the bullying of a Corporate thug.

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Obviously, Apple knows best -> that's why they are the most profitable, succesful OS company in the world!

Oops...or maybe not. (heh heh...)

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I definitely agree with you Ja450n, the use of Apple skins on Windows have encouraged many people, including me to buy a mac because of its nice, sophisticated look, also the reason that it is based on the unix architecture. Although i am not planning to buy it anytime soon because of many compatibility problems with my programs on macs.. i will definitely consider it in the future..

My opinion on apple closing sites, well i really dont think it is fair.. like u said, they are most probably made by a mac since they look so much like them.. I completely disagree with Apple's moves hope they will stop it soon.. :hurt:

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you heard me....

if your a mac user..

apple want you to be only mac...

(your not allowed to use windows as well)

we can assume this is true..

based on the fact that OSXP.net....

the site in question.. was in fact..

Created on a Mac.

hmm... real nice Apple..

that's how you should treat your customers.. shut down their webpages that pay homage to you....

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I agrre, they should be given a fair go. Also, maybe it's time for someone to create a sklin/theme that is orginal, and their own work. I have owned a PB 1400 since 1998/99.

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well don't think we didn't put work into our stuff, it took some time to get the aqua progs and some skins people actually WORKED hard on.

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I am not a lawyer, yet. I take the bar in July. Thus this is no NO WAY to be construed as Legal advice, rather this is my personal opinion.

As I see it

1) Apple has incurred no damages, and this would have to be shown in any suit here, i.e. that your development of Apple's icons have caused them damages / loss of money.

2) Simply remane your icon sets. You CAN "reverse engineer" the icons. that is look at how it looks and make your own "interpretation." Just dont call them OSX icons call them XSO, or OSXSO or something original, nothing that is "confusingly similar."

3) I dont know about your financial situation, however you are likely "judgement proof." That is If apple decides to spend a few hundred thousand dollars in lawyers fees suing teens / 20 somethings who make icons, let them, they ain't getting anything from you (unless of course you are wealthy).

4) This is a common boiler plate scare tactic. IMHO, keep the icons up and protect yourself by creating the icons from scratch, not screen shots form a mac.

(please ignore any spelling errors)

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Also remember that "practical items" are not protectable - i.e. a car door, a silhouette of a car, etc. because then there would no room in the marketplace for development.

Icons could fall into this category. Apple could not protects icons. If the icons had their logo on it, than they could protect that, the logo

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oops -

heres the rest

They could protect the logo with the icon, but not the icon sans the loge, or otehr distinguishing mark.

IMHO - thier case and letter is weak.

very weak.

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Why don't you guys/girls send an email, argument what mac os theme as done,i.e.,was designed to encourage of phurching a mac.

this is going to be done.. in a few days.. once reslults from this poll have been collected..

and a letter has been constructed...

i will be sending an openletter (it will be posted here as well) to Apple.. Apple's lawyers, and TechTV.

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Originally posted by billgates1  

I agrre, they should be given a fair go. Also, maybe it's time for someone to create a sklin/theme that is orginal, and their own work.  I have owned a PB 1400 since 1998/99.

i have personally put allot of work into my Msstyle...

saying that i am merely copying.. no..

it wouuld take a very good artist to Seemlessly duplicate the mona lisa.. would it not ??

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Then email them back telling them that you have no intention of removing the material from your site since they are copyrighted material (copyrights not by apple but by pixeljerk) and you have the original copyright holder's permission to host them and who knows maybe YOU can even sue THEM for illegal harrasment and unlawfull statments or something lol

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Originally posted by Eth3l  

Also remember that "practical items" are not protectable - i.e. a car door, a silhouette of a car, etc.  because then there would no room in the marketplace for development.

Icons could fall into this category.  Apple could not protects icons.  If the icons had their logo on it, than they could protect that, the logo

if you can't copyright practical items.. then how can Apple claim copyright to...

* a 3 tone pinstripe.

* old style trafic signals (on the side)

???

and how can they have copyright on the WORD "Aqua"

that's water.. is it not ??

can someone copyright a "Look" ??

if so.. i am going to copyright my "Look"

Black Boots.. Blue Jeans, Black T-shirt..

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have personally put allot of work into my Msstyle...

saying that i am merely copying.. no..

it wouuld take a very good artist to Seemlessly duplicate the mona lisa.. would it not ??

Than you have nothing to fear - YOU created it. you could probably put your site up. What companlies like apple do is search the internet for terms like OSX and then write these letters to scare people.

IMHO you have a good defense.

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if you can't copyright practical items.. then how can Apple claim copyright to...

* a 3 tone pinstripe.

* old style trafic signals (on the side)

???

and how can they have copyright on the WORD "Aqua"

that's water.. is it not ??

can someone copyright a "Look" ??

if so.. i am going to copyright my "Look"

Black Boots.. Blue Jeans, Black T-shirt..

Disclaimer - its 2:00 am here, and I am going off the cuff, very tired. (forgive poor spelling)

1) What is important to remember is the use. Apple cannot protect a strip, or the colors red yellow or green, but can protect their use.

Example: If you created a theme with a stoplight maximize, minimize button set you would not be in violation. However if you did so and used it as an OSX copy - you might be, but still unlikely.

2) The word Aqua. Apple does nto own the rights to the word Aqua, but own the rights to the word Aqua as the name of an OS.

Example: I recently statred a newsletter at my Law School called "The Lowreview." I am in the process of registering this mark. TO do so I need to define what "Class" the mark is. Here we are registering it as a print newsletter and a Web Page and a few other things. If someone wanted to write a book called "Lowreview" about a tree there is no infringement. However, if someone writes a newsletter called "The Lowreview" well that is blatent infringement. (P.S. www.lowreview.com)

3) "Looks" are Per Se unprotectable. Firstly this would violate the 1st amendment becasue a "look" is a form of speech, and protecting a look would infringe on my freedom of speech. end of story

- you could also make an argument that this protection that Apple is asserting violates your free speech. you would need to show that you did not make a direct copy of their icons, and also prove that you were not trying to pass it off as "OSX" icons. this last part is where I think you got in trouble and why Apple sent the letter.

hope this helps. If I was you I would fight Apple. but then again i am a LAw Student and would love the opportunity. :D

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