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ResExcellence Editorial

I'm Furious at Apple by Michael Coyle

Several months ago when Michael Rabe approached me about setting up an Appearance Theme archive at ResExcellence, I had several concerns that needed to be addressed. Everyone knows Apple's law firm (Arent Fox Kintner Plotkin & Kahn, PLLC) diligently pursues any trademark infringements regarding themes. I didn't want this archive to have any of the so-called banned themes (HiTech, Gizmo, Drawing Board, Aqua, etc.).

Among other things, the court may require your company to pay damages of up to $150,000.00 per infringement. - Letter from Apple Legal

Would themes die with MacOS X? Michael assured me themes were very likely under the newest Apple OS and sent me a work in progress, his recently released Pastel Blue 10. I opened this theme file in ResEdit and confirmed that every resource was unique and there were no elements of Aqua remaining. I was confident that it was an entirely original work that would not infringe on Apple's trademarks.

Incase you are not aware, Michael Rabe is a talented theme creator. In fact, as of recently, he was one of the last theme authors. His work fills our archive and speaks for itself.

April 10th, Pastel Blue 10 was released on ResExcellence and the Mac community had its first theme for MacOS X.

By 9:10 am, I had received my first letter from Apple's law firm. Ironically, they had no problem with the release of this new theme, but some minor issues with the older themes for Classic MacOS. Once these were resolved, I was assured the archive was in compliance.

Buoyed by the news that Apple legal did not appear to be opposed to the theming of MacOS X, Michael Rabe started work on his next creation, a beautiful theme called Glass. Like Pastel, this theme was an entirely new creation with no relation to Aqua.

But then something interesting happened.

On April 17th, Apple's law firm sent a cease and desist to MacThemes.org, the developers of the primary tools for creating themes. To summarize their letter, Apple's law firm believes the reverse engineering of the theme format in MacOS X is illegal. This is shaky ground at best, but who has the money to go up against Apple Computer?

Pastel Blue 10

On April 19th, Michael Rabe posted a preview of his next MacOS X theme and was quickly slapped with another cease and desist order. Michael is a young man with very limited resources - so limited that even the act of replying to Apple's law firm by phone or certified letter places a strain on his budget. Threatened with the ramifications of what Apple could do to him, Michael quit his position as Theme Editor at ResExcellence and shutdown his personal website, DogHouse Online.

What follows is speculation, but a plausible recreation of events that led up to this sad situation.

Apple is absolutely within it's rights to vigorously pursue any trademark violations, especially those that copy the Aqua interface. ResExcellence supports this position and if you peruse the theme archive, you will not see a single theme with even a slight resemblance to Aqua.

Michael Rabe created the first entirely new theme for MacOS X and after posting it on ResExcellence, Apple's lawyers could not find a trademark violation. If Apple Computer was determined to keep Aqua as the only interface for MacOS X, how could it stop the creation of themes? By going after the creators of the tools that allow artists to create themes. I believe this is exactly what they did one week later.

Theme Machine from MacThemes has been available to artists since 1998. Why would Apple's lawyers suddenly want it pulled? Perhaps because it has been shown that themes are possible under MacOS X.

Is Apple so determined that Aqua be the only option available to users under MacOS X that they are relentlessly pursuing software developers and artists under the weakest of pretenses?

You may feel this plays no large part in your life, but if Apple can use its legal muscle to stop the creation of themes that do not infringe on its trademarks based on the weak concept of reverse engineering, what is to stop them from squashing any modifications to the OS?

For example, Iconographer is a tool for creating 128x128 pixel icons for MacOS X. If Apple were to decide they only wanted users to see Apple sanctioned icons, they could sue to have the software pulled. None of the artists or developers have the resources to stand up to Apple.

Photoshop is also used in the creation of themes. Do you think Apple's lawyers sent a cease and desist to Adobe?

Apple has stopped your ability to customize the interface of MacOS X with themes, even though Apple's law firm feels Pastel Blue 10 does not infringe on any Apple trademarks. This is not the type of behavior I expect from a company that has received tremendous support from the artistic community when most others have abandoned it.

If you agree that this behavior is not becoming of a company that encourages users to "Think Different", what can you do about it? Visit Apple's feedback page and take a moment to tell them your feelings. Write an email to the lead attorneys in this matter, Fabricio Vayra and Jessica Brodey. Finally, write a letter to Nancy Heinen, Senior Vice Persident and General Counsel at Apple Computer, 1 Infinite Loop, Cupertino, Ca. 95014. (Remember, a well reasoned intelligent letter is what is needed, not a rambling flame email.)

It is the belief of ResExcellence that Apple is morally wrong and standing on weak legal ground at best. It's deplorable when a company encourages users to customize their interface and then threatens legal action against the artists and developers that make the customizing possible.

Updated: 4-25-01

I have received dozens of positive emails regarding the recent editorial on Themes and MacOS X. Thanks to everyone who emailed Apple's attorneys and then took the time to snail-mailed letters to Apple.

Tom Hackett was the first to let me know that the URL provided for feedback to Apple may not have been the best possible site. Is seems there is a feedback page for MacOS X issues. If you have an archived copy of your earlier message to Apple and their lawyers, you may want to send it again to the new feedback page, just to make sure it goes to the correct authority.

Some readers have called for an organized shareholder action, but as a shareholder who has seen Apple's proxy voting system, the likely hood of getting a contrary opinion on the agenda are slim to none.

To be honest, I don't believe public opinion will do much good either. Apple is firmly under the control of one man with a strong will. We would have more success against Proctor & Gamble, a large corporation that cares more about what consumers think. What I have learned is that there is broad support in the Mac community to challenge Apple on this point.

There are options. After spending many years in the recording business, I have come to know several copyright/trademark lawyers. I hope to informally poll them on the chances of successfully challenging Apple in the areas of theme creation and reverse engineering. It would also be necessary to get an estimate of how high the legal fees could be. If these lawyers feel there is a reasonable chance of success, we will just have to wait for the proper conditions.

If a theme is submitted to ResExcellence that I feel does not violate any Apple trademarks, I will post it. If challenged by Apple legal on the grounds of reverse engineering, then ResExcellence will open a Kagi shareware account to raise money for a legal challenge. So far, almost 10,000 people have read the editorial. If only half of you have the conviction to send $5 to a Theme Defense Fund, that's $25,000. To be honest, I don't know if that's enough to go up against Apple, but I will do my best to find out.

This is not something that would be enjoyable, but as I have said, I believe the way Apple and their law firm have been theatening artists and developers is just plain wrong. I will keep you updated as the situation unfolds.