MTP News: 04/17/2001
Since the press has seen fit to air our laundry and Apple's, we are reluctantly forced to post our current procedings in this matter. Here is the transcript thus far for you to peruse. Please note that we do not wish malice towards Apple, but rather are now trying to make a point about our project, and others that may follow our path, and that relationship with Apple. This point was intended for only Apple to hear, but, alas, Macworld UK got wind of it somehow, and everybody knows about it now.
In this recent turn of events, if anybody is a legal councelor, and would like to donate their time to help us with advice, please contact us.
Our reply to Apple:
Mr. Vayra,
Pursuant to your notice to Brian Drum, we would like clarification of the
nature of the infringement that you claim has occurred, as well as a
definitive list of software and/or material which you believe to be
infringing on the intellectual property of Apple. Our project has been in
existence since 1998, when Apple first introduced support for themes in its
Mac OS 8.5 operating system. We would appreciate knowing how we suddenly
came into non-compliance.
In regards to your claim of copyright and trade dress violations - our
editor doesn't contain any material originating from Apple. Further, the
manner in which the editor is used is entirely up to the end user. The
possibility of inappropriate or criminal behavior resulting from misuse of
our software isn't our responsibility, much like Apple shouldn't be held
responsible for such behavior engendered by its software (such as a user
illegally copying a CD with iTunes). If Apple becomes aware of someone
violating its intellectual property rights, we encourage them to take that
up with the individual responsible.
In regards to your concern that our editor contains material that was
reverse engineered, we contend that this is appropriate via the fair use
doctrine established in Sega v Accolade under the Ninth Circuit Court Of
Appeals. From the article "The Legality of Disassembly of Computer Programs"
by Douglas Hayes:
http://www.fenwick.com/pub/Archives/disassembly_of_computer_progra.htm#10
Section 107 of the copyright statute lists four factors
to be considered in determining whether a particular use
is a fair one:
* (1) the purpose and character of the use, including
whether such use is of a commercial nature or is
for nonprofit educational purposes;
Our project is by nature non-profit and for educational purposes.
* (2) the nature of the copyrighted work;
Note that the matter in discussion is not any actual code but only
the format of data manipulated by Apple's operating system to display
graphics.
* (3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
Note that no actual code belonging to Apple is used by our project.
* (4) the effect of the use upon the potential market for or value
of the copyrighted work.
We believe that our project actually provides added value to Apple by
allowing its customers the freedom to construct an operating environment
which is more suited to their tastes.
We would like to remind Apple that as this is an open-source project,
provided free of charge and for the sole benefit of Apple's customers. We
appreciate the need for Apple to protect it's intellectual property, and
have in the past refused to be associated with material which we believed
violated that, but we are unwilling to abandon a project which is beneficial
to thousands of fellow users without just cause.
This is a bigger issue than our particular project, it deals with the
fundamental right of the user to control their own computer. When Apple was
created in 1976, its founders would have been the ones writing this sort of
software. If the company has really changed so much that they're willing to
sue some of their biggest supporters in order to keep users from modifying
what's on their own computer then maybe it's time to finally make the switch
to Linux because apparently that's where the spirit behind the founding of
Apple Computer, Inc. has gone.
Steve Lobsinger,
Mac Themes Project
Apple Legal's letter:
April 17, 2001
VIA FEDERAL EXPRESS AND E-MAIL
[Address removed by webmaster to protect programmer.]
RE: NOTICE OF INFRINGEMENT
Dear Mr. Drum:
As you are aware, we represent Apple Computer, Inc. ("Apple") with respect
to its intellectual property matters. We recently contacted you regarding
your distribution of a software editing tool for creating themes for the MAC
OS (the "Editor") available at:
http://www.macthemes.org/Dev/Downloads/Files/ThemeMachineFr.sit
http://www.macthemes.org/Dev/Downloads/Files/ThemeMachine.sit
It has come to our attention that macthemes.org continues to distribute the
Editor which enables third parties to create themes that are identical or
confusingly similar to Apple's copyrighted and trademarked themes for
Apple's MAC OS programs. As stated in our prior letter, by publishing this
Editor and allowing the public to access and download the Editor, we believe
that you are engaging in contributory infringement of Apple's copyrights,
trademarks, and trade dress in violation of the Lanham Act.
Additionally, Apple is greatly concerned by the likelihood that your Editor
may be a derivative work resulting from the unauthorized reverse engineering
of Apple's software. The specifications for the MAC OS themes have never
been released, consequently, we believe that your Editor is derived through
reverse engineering of the software. We would again like to remind you that
reverse engineering of the MAC OS is in violation of the software license
agreement you accepted upon purchasing a copy of Apple's software.
Because Apple would prefer to resolve this matter amicably, we ask that you
confirm in writing by close of business on April 19, 2001, that you have
removed the material from your web site. Thank you for your prompt
cooperation in this matter. If you have any questions, please do not
hesitate to contact me at 202/857-6130, or e-mail me at vayraf@arentfox.com.
Sincerely,
Fabricio Vayra
Admitted Only in Virginia;
Directly Supervised by principals of the firm
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
MTP News: 03/20/2001
New Database Will Offer Updated Theme Section
We are currently working on an awesome new database system that will allow us to keep our themes section up-to-date and full of new themes. This is going to be awesome! We plan to eventually become THE site for getting themes, and of course theme tools. This new database will allow us to do so. We also will eventually be adding soundsets and theme utilities over time, also using the new database system. You should be hearing alot of us in the near future.
Theme Admin Position on Hold
Recently in our themes section we asked for people to contact us regarding the position of themes administrator. Thanks to our new database system in development, we are no longer looking for people to fill this position at this time. Thanks to those who responded.
Article Date: 03/07/2001
Site Update
Our entire site has undergone alot of changes and updates. Greater compatiblity with all browsers, updates to the developer sections, and lots of interface changes. Key changes include:
- New interface, easier to navigate
- Developer section now split into 2 sections, Making Themes, and Programming
- All of the quite outdated developer content has been updated, and is now current.
- Our forums now have an existance, and are usable and ready to go.
A couple of changes still are waiting to occur, including getting the developers sections so that they work without requiring javascript, and the tremendous task of getting our themes section all up to date. Hopefully that will happen within a week or so.
This banner posted to support open source related projects (mostly linux), such as ours.