We just got an email from Apple regarding a YouTube video reposted on CrunchGear:
VIA E-MAIL
NOT FOR POSTING
Re: Apple Computer Copyrighted Material Illegally Disseminated by Crunchgear.com
To Whom It May Concern:
We represent Apple Computer, Inc. (“Apple”). It has come to our attention that your website, at http://crunchgear.com/2006/08/28/how-expose-works-with-spaces-in-mac-os-x-leopard/, is posting a video demonstrating certain features of Apple’s new operating system, Mac OS X 10.5 (aka “Leopard”). While we appreciate your interest in Leopard, it has not yet been released to the public. The software demonstrated in the video must therefore be running on a pre-release developer’s build of OS X 10.5. All such builds have been distributed to developers under strict terms of confidentiality that prohibit the dissemination of screenshots or other displays of the software. The builds are also copyrighted by Apple, and U.S. copyright law explicitly prohibits unauthorized displays of copyrighted works.Apple therefore requests that you remove this video from your website and take steps to prevent any further distribution of videos or screenshots of Apple software without Apple’s authorization. If you are represented by counsel, please provide me with the identity of that counsel.
Thank you in advance for your cooperation,
/s/ Ian Ramage
Ian Ramage
O’Melveny & Myers LLP
Embarcadero Center West
275 Battery Street, Suite 2600
San Francisco, CA 94111
(415) 984-xxxx (direct)
(415) 984-xxxx (fax)
xxxx@omm.comDMCA Certification: I hereby state, under penalty of perjury, that I have a good faith belief that your activities are not authorized by Apple, that the information in this notification is accurate, and that I am authorized to act on behalf of Apple in this regard.
This message and any attached documents contain information from the law firm of O’Melveny & Myers LLP that may be confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message.
Ian, it a YouTube video. That’s at www.youtube.com. Get them to take it down if it’s a violation of your IP and it will stop showing at crunchgear and the other sites.
And Ian, when you are done, please take the time to send your client, Apple, a similar email for posting basically the same material on their own site.
the fact of the matter is that the video is hosted and ran from youtube.com – which is legally (and soon will probably be shut down) responsible for the content it hosts. Now from a logical and legal standpoint… it can be looked at like this. Say youtube steals a pack of gum and offers you a piece of gum… this is akin to receiving stolen goods (a chargeable offense).
just trying to look out for you guys.
Wow, that Andy is a complete tool. The name and address are a place of business. The really naughty bits of personal information are x’ed out. It is of little consequense if he posts them. Also, apperently Andy thinks the words “NOT FOR POSTING” trump the first amendment. If we all had Andy’s attitude we would still be british.
Quit being a fucking retard. the letter is PREFECTLY polite and your response is HARDLY “brilliant” (“Ian, it a YouTube video”
And yes… I DO realise I spelled “brilliant” with an “e”. Eh heh.
My letter to Apple Marketing:
I was surfing Crunchgear.com today and noticed that a lawyer representing Apple had sent a threat letter to Crunchgear admin for posting videos of the Leopard OS in action. While this move would be considered by your management to be standard, it was very foolish in a marketing sense.
Crunchgear was offering free, positive marketing of the Leopard OS to blog-readers who are mainly PC users. No doubt, your marketing division is aware that Leopard stands to possibly do well against the release of Windows Vista in the coming months. Because the requirements of Vista will be extremely high, and the OS will coupled with numerous bugs, next-gen purchasers will be driven to purchase now Intel-run Apple computers to some degree.
Instead, one of your lawyers, Ian Ramage, sent a nasty letter to Crunchgear ordering them to remove the video. Removing the video is fine, but they also posted his email on the site:
http://www.crunchnotes.com/?p=268
which, in the opinion of many bloggers as well as I is very embarassing.
Apple’s image has already suffered major blows recently with the battery recalls and news of poor labor practices in iPod manufacturing plants.
If I were working in your marketing department (a field which I have experience in), I would be quick to stamp out this lawyer, and rectify the situation by offering Crunchgear exclusives.
Just a thought.
I am quite shocked at the ignorance of the readers here. QUITE shocked that such a know it all crowd would be so ignorant on this subject and think they are so right.
First, the lawyer owns the copyright to the email, if you post it he can sue you and you will lose. You always have to track down and gain written permission from the owner, this is how you legally follow the rules. Call it lawyer ball, in a court of law it counts for everything.
Second, the Apple screen, video of it or not, is copyrighted by Apple and they legally have complete control over how or if it can be disseminated. Period. Want to use it, you have to gain written permission from Apple AND the person who owns the rights to the video of the screen.
For the record, NOT policing their copyright can mean they forfeit it, so any smart company will always police their copyrighted material for fear of setting a precendent where they lose that right for not protecting it.
The letter was restrained and respectful and raises valid concerns about Apple’s rights. Come on, everybody does NOT have the right to do everything. I hope some of you do get sued.
So many things about your post are wrong but the very first is, “How do you know he didn’t send a letter to youtube too?”
Jake Lockley wrote:
“First, the lawyer owns the copyright to the email, if you post it he can sue you and you will lose. You always have to track down and gain written permission from the owner, this is how you legally follow the rules. ”
Um… no. You are completely and entirely incorrect.
Copywriting something is a process that goes WELL beyond typing an email and clicking “send.”
In addition, for it to be a copywrite violation, the blogger would have to be selling it. Ask yourself: If a lawyer wrote an email to a newspaper, can that newspaper publish it?
Of course they can. To say they can’t is not only absurd, it’s unamerican.
Before anyone says anything else stupid about copyright and intellectual property, especially anything conflating the two, will you please do some bsic fucking research first?
A mere link to something that _may_ be problematic (and all we have is the word of someone claiming that it is, and claiming to be a lawyer) is not breaking any laws. If I happen to link to a site that turns overnight into a kiddie-porn terrorist polygamist site, there is no existing law in any country I am aware of that holds *me* liable for the contents of that site.
Either provide proof of such a statute or shut the fuck up.
Thanks ever so much.
Jake Lockley: you are wrong. You are so wrong you may never be right again. Send me mail. I dare you. I can disseminate, print, fold, spindle and mutilate it as I see fit. Once it ends up on my servers, it is mine.
Don’t like it? Tough. You have a choice not to send me email.
I suggest doing a little research on this subject before freaking out about how received email is “copyrighted” material.
Though apparently attempting to assert the ignorance of others, Jake Lockley seems determined to instead display his own ignorance. In the absence of a court order declaring otherwise, the lawyer’s email is fair game. The lawyer is granted no expectation of privacy when sending an unsolicited email such as this.
The person who created this video may indeed have a claim of copyright, but Apple itself most likely does not. If this were the case, then screenshots of nearly any software would be illegal, as they would be copyrighted by the respective OS vendor, be it Microsoft, Apple, etc.
To cap it off, Jake, you’re confusing copyright law with trademark law in your last paragraph. Copyright can *not* be forfeited in the manner you describe, although a company does risk allowing dilution of its trademarks if not properly defended. Please consider doing a little research into the matter before continuing to lambast others for their supposed ignorance.
Are you sure this guy really represents Apple? Look him up on http://www.martindale.com, a national registry of lawyers. He’s a solo practitioner. Wouldn’t Apple have a huge, national, “white shoe” firm handling this kind of thing?
In response to Jake adn the copyright to email issue, you are completely incorrect.
To the owner of this blog, please check out http://www.chillingeffects.org
This website is a joint project of the EFF and several law schools. It is specifically designed to assist people who receive letters like you did.
From their FAQ:
Question: What does it mean if the cease-and-desist letter I got has a copyright notice?
Answer: Copyright can be claimed on any original expression, but some uses of copyrighted works, including use for commentary and criticism, are fair uses, not infringement. It is highly unlikely that someone could sue successfully for the posting of a cease-and-desist notice (most notices are minimally creative; the use is for purposes of commentary and research; the amount used is necessary to the understanding; and there is no effect on a “market” for cease-and-desist letters).
Question: Is a cease-and-desist letter confidential?
Answer: There is ordinarily no expectation of privacy or confidentiality in a letter sent to an adversary. Unless you have made a specific promise of confidentiality beforehand, such as in a protective agreement or NDA, a letter demanding confidentiality doesn’t bind you.
What is it with all these anal people defending this lawyer garbage? Who gives a crap if it falls under Apple’s IP or not?
I must be part of a dying breed that thinks the first amendment and the right to information trump what ever cooked up copyright/DMCA nonsense these lawyers grasp at.
Who wants to bet that nothing ever comes of this oh so serious violation?
Apple is dead to me. Step up to the plate and get a real OS.
There is a reason why Microsoft is so successful.
Jake, I believe you could argue that the publishing of the original email falls under fair use, but I’m not an attorney.
I guess I don’t understand the passion being shown by the corporate tools. Information wants to be free, and eventually finds a way. This sort of “lawyering up” does nothing but create ill-will and make the company look like fascist dorks to normal people.
Jake: there´s no such thing as copyright to an e-mail, sorry.
Jake Lockley: You seem to imply that that law in this area is clear when nothing could be further from the truth. By the traditional definition of “Publication” in U.S. Copyright law, one could reasonably assume that Mike is making fair use, since he does not profit from posting Ian’s email (there are no ads on this page that I can tell, but I’m not going to root through the source to be sure; I’m also not going to get into an endless debate over ephermeral social profits that Mike might reap from this
:
“”Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.”
Others may disagree, since the law is not settled on this, and varies widely from country to country, but I would certain call Mike’s posting of Ian’s email the ‘display of a work.’
By your argument Mike would need to obtain Ian’s permission merely to forward the email to his own counsel. Ian’s letter also contains no explicit prohibition against fair use. Before accusing others of ignorance on a nuanced subject, please check your facts.
I don’t see what the big deal is, Apple very politely asked you to removed the video AND EVEN THANKED you for your interest in leopard. Why you would be rude and not take it down doesn’t make any sense.
They sent it to you, because even though it’s hosted at YouTube, you a high profile site are showing it. I bet many more computer geeks, OS gurus, and developers visit your site than ever visit youtube.
Also posting the letter was rude, Apple didn’t go to your hosting provider, your boss, or go above your head, when they have the will, and manpower to be very, very nasty if they wanted. Yet you wanted to show how “cool” or whatever you were by posting the letter….
I am quite shocked at the ignorance of the readers here. QUITE shocked that such a know it all crowd would be so ignorant on this subject and think they are so right.
Funny you say that…
First, the lawyer owns the copyright to the email, if you post it he can sue you and you will lose. You always have to track down and gain written permission from the owner, this is how you legally follow the rules. Call it lawyer ball, in a court of law it counts for everything.
Next ransom note I write I’m using this argument in court. “That note is copyrighted by me and I gave no permission for it to be turned over to the police.” Yea, that’ll work. This falls WAY under fair use.
Second, the Apple screen, video of it or not, is copyrighted by Apple and they legally have complete control over how or if it can be disseminated. Period. Want to use it, you have to gain written permission from Apple AND the person who owns the rights to the video of the screen.
Not. Even. Close. I can take a picture of my OS X Tiger desktop right now, sell it for a bazillion bucks and Apple can go suck it. If anyone, I own the photons eminating from my monitor.
For the record, NOT policing their copyright can mean they forfeit it, so any smart company will always police their copyrighted material for fear of setting a precendent where they lose that right for not protecting it.
And the cherry on top of the IP idiocy sundae is ALWAYS confusing trademark law with copyright law.
I’ve read (almost all) comments, and before doing that, I had no idea that there are so many idiots who would never understand sarcasm like this one:
“And Ian, when you are done, please take the time to send your client, Apple, a similar email for posting basically the same material on their own site.”
Jake Lockley’s statements are not automatically false. Copyright (note that it’s CopyRIGHT, not WRITE) law varies from country to country, but the position he stated is true for Australia at least, and could be true in other countries (feel free to conduct your own research).
From the Copyright.com.au website:
Copyright is “free and automatic. The moment you create your work it is protected by copyright”.
“Material that is protected includes: written material – including (…) emails”
“If you forward an email containing copyright material to a third party you may be infringing copyright.”
(All sourced from PDF WARNING http://www.copyright.com.au/info%20sheets/PA20_copyright%20and%20the%20internet.pdf)
Under Australian law, it is technically a copyright violation to forward an email without the consent of the original author. The law was widely criticized when it was passed as too restrictive. For instance, it’s also illegal to send spam to Australian recipients but forwarding a complaint to the originating ISP with the text of the spam as proof technically constitues a copyright violation.
Anyway, cheers to you Mike. I think Ian was misguided for sending a C&D to a site that merely linked to material posted elsewhere. The day we all have to check sites we link to for possible copyright violations to avoid making ourselves liable is the day the internet implodes.
doesn’t it seem stupid to put “do not read” at the bottom of the letter? i already have read it by the time i’m told that i’m not legally allowed to.
Look, Copyright is totaly out of control.
F Apple and Steve jobs!
This crap continues to plague us they can not stop what they can not control… and they cannot control the internet. Period They never have and never will.
We need to rise up and do this a thousand times more…
Get organized. the sooner it’s realized that DRM and IP are crap on the internets the better. It’s just gonna take more time. this stuff is over the top and must be stopped. and it’s gone too far… the only way were gonna beat it is to overwhelm with tons more… good job and keep posting!
Hi there. I’m actually an intellectual property attorney and I send out letters like the one your received all the time. I know you don’t think so, but that was a pretty mild letter. Also, lawyers don’t send letters like that without specific permission from their client. It is likely this is a case on one hand not knowing what the other is doing. I wouldn’t worry about it.
“Freedom of spech on the internet, buddies. If Mike WANTS to post, he has the RIGHT to post.”
You mean there’s two kinds? One for the internet and one for the real world?
In the end I’m sure Mike had a smile on his face when he got the C&D… why? Traffic baby, traffic!
“There is a reason why Microsoft is so successful.”
So is McDonald’s. But it ain’t even close to being the best you can get.
Seeing as the mail was politely worded (IMO), I think I would actaully consider taking it down just for that.
I know Apple is a big company with more money than is good for them, but they *are* a company trying to make money, and usually C&D letters are nasty.
Then again, it’s not a trade secret when it is public on their own friggin’ homepage.
A few issues have been raised with this posting and subsequent comment thread. A few observations on my part…
First, re: the posting of this C&D letter. Generally speaking, there is no expectation of confidentiality in an e-mail. The recipient of an email can pretty much do whatever he/she likes with it. But there are exceptions. In this instance, the sender of the e-mail includes (what is essentially boilerplate) wording asserting confidentiality rights. The recipient of this message is making it public at their own risk. That risk, however, is pretty low. Petty? Perhaps, but so is the C&D letter to begin with. Anyone really think O’Melveny & Myers would sue over the posting of this e-mail? Before you answer “yes, I hope they sue these jerks,” consider for a moment that theoretically everyone who has viewed this article (and posted comments) could be considered co-defendants in such a suit. We all have, after all, read what would be claimed confidential information.
Second, re: the legality of posting a link to the video in the first place. If the video in question infringes upon Apple’s rights, not only hosting it on YouTube, but linking to it, would both be illegal. Does the video in question infringe on Apple’s rights? I dont know the answer, but that’s not really the point. Were this matter to go to court and it was decided YouTube was in the wrong, then the link to it would be wrong. It doesn’t matter if it’s merely a text link, a link with a thumbnail picture, an embedded link, etc. As a practical matter Apple would likely have to go to court to compell CrunchNotes (or their ISP) to remove the link.
The bottom line to all this though is… was this C&D letter necessary? Copyrighted material is constantly posted on YouTube, and is almost as quickly removed upon request of the copyright holders. In the time it took the law firm to compose this e-mail they could likely have had the video removed from YouTube, rendering any and all links to it useless. Obviously Apple’s intent, through this legal firm, is to squash comment (most likely criticism) for their as-yet unreleased OS. Some have argued over whether this letter was polite or threatening. No matter how politely it was worded, its very existence was meant to be threatening. It’s subtext was clear: “Comply, and never do it again, or you will be sued.” Is Apple within their rights to make such a threat? Yes. Is it wise? That’s debatable. Coming off as a bully can be viewed as bad as squashing criticism of an as-yet unreleased OS.
One final thing: some of the posters in this thread reeeeeally need to learn the concept of sarcasm. Seriously.
From Mike Arrington bio (http://www.techcrunch.com/about-michael-arrington/):
“I spent a few years as a corporate attorney at O’Melveny & Myers and Wilson Sonsini, working exclusively with technology companies. My clients included idealab, Netscape, Pixar, Apple and …”
You seem surprised that you received a C&D.
You seem shocked that Apple is protecting its property.
Isn’t that somewhat disingenuous on your part?
i like how they say if you’re not the intended recipient you may not read the message … at the END of the mail.
I’m not taking sides on this issue. However Mike, it might be helpful if you clarified a policy on requests for a)anonymity and b)non-posting. As a journalist, you want people to come to you with tips and leads. And obviously, the case in hand does not involve a violation of a request for anonymity. However, the fact that you posted when the writer asked you not to may make people jittery all the same. Despite your best efforts, people may confuse one type of violation with another. You may want to consider whether you are inadvertently scaring people off who may want to feed you information on the condition of anonymity.
And this is why I use Linux.
“Then again, it’s not a trade secret when it is public on their own friggin’ homepage.”
It’s not a trade secret. But it is theirs and can ask for anyone to not include it on their page. If that’s what they want. Just because it’s on Apple’s site doesn’t mean you can put it on yours. There are still copyright issues.
Once this video was put on YouTube.com it became public domain. Damage done, Apple needs to get a Tech Savvy attorney to explain how fucking stupid this C&D is. Sicking attorneys on people over web content under the whole intelectual prop. is retarded. You should be happy to get free advertising. Corporations all need to eat a bullet.
Dude, get real. It’s better than Apple send you guys the threat than you tube. youtube is just hosting it. you’re the ones featuring it. it could easily be hosted on some other site, and you’d still be linking to it. For once they’re targeting the right people.
that said, apple is stupid to care about this.
No, what would be better is if the letter had had something funny to it, or if it was in some way incorrect.
So you got a C&D letter? Ouch!
If you were that awesome, hard, or even clever, I’d still be watching the video on your site.
Still viewable here: http://www.thinkwasabi.com/2006/08/23/video-spaces-y-expose-en-leopard/
So … this is a link to a site with a link to a video of the supposedly infringing content, and I’ve just posted it on CrunchNotes, so that makes *me* and infringer, and CrunchNotes a double-secret infringer if they don’t remove this posting immediately — right?
You corporate ass-kiss types who explain how Apple can control every mention and reference to their bloody software would be funny if you weren’t all so pathetic and actually dangerous — where do you think this all leads? Think you’ll have any control over anything anymore if you grab your ankles every time some corporate lawyer clears his throat? Get a spine, for Christ’s sake. Who paid you to argue on mega-corp Apple’s behalf? They’ll turn around and slap your ass in a heartbeat if it suits ‘em. What do you do in your spare time, post arguments defending Monsanto’s right to flood the food supply with genetically modified crops. I hope you all choke on your EULAs as you deep throat them, you jerk-offs …
You don’t like “the man” and his laws, then be an activist for changing the law.
Is is stupid for Apple to request that free publicity be taken down? I think so.
But it’s within their rights to demand it, so crying about it won’t do diddly.
“Your response is brilliant.”
Yeah, maybe. Except for the whole “tell Apple to take it down” part. So far as I’m aware, Apple hasn’t NDA’ed themselves, and can post their own publicity videos. That doesn’t give that license to anyone else.
Counter-Corp, grow up. I don’t see a lot of argument that Apple is right…only that they have the right. Which they do. Henry’s right. If you don’t like it, change the law. Otherwise, stop whining.
The question of whether or not the video can be considered to be “on your site” via a youtube embed is immaterial.
1. Only the developers signed the non-disclosure contract, not crunchnotes.
2. The notion that the copyright on an operating system prevents non-owners from capturing videos using the os is ludicrous in that this would make illegal any screen captures or for that matter, any artistic work made on a computer! Also there is no legal precedent supporting this idea.
3. The legal bottom line: The use on a blog of a screen cap of a soon to be released os for review, criticism, or eductational purposes is a classic textbook example of fair use, explicitly protected under US copyright law since the law was first enacted. If Ebert and Roper give two thumbs down to a movie, what allows them to show a copyrighted clip on their television show when the copyright holders would benefit greatly from preventing this? Fair use.
Know your rights, use them or lose them. If fair use is forgotten our entire culture will suffer. There is a ton of case law establishing this. The overzealous use of DMCA notices does not change the basic principles of copyright law. Sorry Apple, I love your products (most of the time) but you can’t shut down the necessary discourse of a critical media with copyright.
And one more thing. Learn the law before you proclaim it.
All you law and order advocates saying Apple has a right to control critical exposure of their operating system to public view should learn what copyright laws really say, instead of just blindly accepting that the law is on their side because they had a lawyer draft a letter. Remember that our legal system is oppositional and lawyers in EVERY legal case take opposing positions from other lawyers.
One last point that just occured to me:
Apple’s Operating System is the copyrighted work in question. Reproducing the OS would be a violation of this copyright, if crunchnotes were making and selling the “crunchnotes OS” that was in fact Apple’s new OS just duplicated and resold under a different brand, they would have a cut and dry case of copyright infringement. But their copyrighted work is not being reproduced!
The work (the actual Operating System) was not posted on the website, a picuture or video of the work was posted, which is not an adequate substitute or a real reproduction of the original work in any meaningful way.
This is analagous to a photograph of the outside of a book, or a video of someone flipping quickly through a few pages of that book. No one can read the book through a photograph, and similarly it is impossible that anyone could run a computer using the OS they copied off the Youtube video!
There is no infringement because the copyrighted work has not been reproduced!
Regarding the “Cease and Desist” letter’s publication:
Though I disagree with them on other points, those who have said that the lawyer (or more probably his employers, as this was a work for hire) owns the copyright on his letter are correct on that one point. In the US and many other countries Copyright is automatic and belongs to the author as soon as their work is created.
However, this does not automatically make it’s publication an infringement of that copyright. The publication of a book of poetic personal letters for their literary content wiothout the author’s permission could possibly be an infringement, but there are again exceptions to the protection of copyright.
In this case a cease and desist letter from a corporate lawyer regarding the contents posted on a media outlet (blog) directed to that blog and disputing their first amendment rights with a copyright infringement claim, the publication of this letter in no way interferes with the author’s own publication of or profits from the letter, and is demonstrably an issue of public interest.
A counter argument could be made, but case law suggests that the Fair Use clause of the Copyright Act would apply here as well.
So, crunchnotes is taking a reasonable measure by publishing this letter, with a likelyhood that they will prevail if any legal action ensued, though such action would be highly unlikely.
(The original infringement claim is dubious or spurious in this case, but even if it was a valid infringement claim this would be true)
Wow.
A very interesting read.
There are so many things I could say about the discussion posted here, however I will limit myself to the original topic.
This letter wasn’t sent by Apple – it was supposedly sent by some lawyer claiming to represent Apple, however we don’t have the entire email posted including all the headers to even confirm that it was sent by the lawyer that it claims to have been sent by.
Has anyone actually confirmed that this letter was sent A) by the person it appears to be from and B) at the request (or implicit request) of Apple Computer?
Apple has long had a reputation of sending out C&D orders, and I recall at least one occasion when it was faked.
Folks — I’m surprised at the number of people who are saying Mr. Arrington has some responsibility here for simply linking to/embedding the video. The responsibility, and the place Apple should be going after, is YouTube, if they have a case (and they might). There is no case legally that can be made against CrunchNotes. But I’m sure Mr. Arrington already knows that.
However the comment about the lawyer needing to contact Apple for doing the same thing — it isn’t the same thing, Apple owns it, YouTube doesn’t. He should have left that part out.
There are simple ways to indicate that such a video is available at YouTube without linking to it. Take down the link, let folks know what is available at YouTube regarding 10.5 features and be done with it. What’s the point of providing additional publicity for basically a form letter version of a C & D letter from one of Apple’s attorneys? I don’t think this matter will make it to the US Supreme Court, folks.
You really didn’t have to get smart with the dude. He’s doing his job, and doing it in a respectable manner. He didn’t, in any way, threaten you with any legal ramifications. In fact, he wrote it in an educational aspect. It was an honest mistake on his part. Not one worth mocking.
@Anthony, September 1st, 2006: The suplemental note under the signature is required on all legal inquiries. The fact that it was included is a good symbol of its authenticity.