Apple's in a Pickle at UK Court of Appeal for Unappetizing Apology - Does It Need an "Appology APP"?

                            

(Apple and Pickle from Wikimedia)

Apple's apology is not appetizing to the UK Court of Appeal. Indeed, Apple is in predictable trouble at and with the UK Court of Appeal – which is not a good place or way to be in trouble.  In fact, one might even say that Apple is in something of a pickle at the the Court of Appeal.

There are lots of accounts of this. As usual for anything even remotely “English”, among the best are those of the IPKat and The Register.

We look forward to the written ruling but the Court has found that Apple’s required apology that it published was inaccurate and unsatisfactory.  Indeed, it may have crossed some minds as to whether  Apple has been on the verge of being in contempt of court. 

As reported by the latter, Apple was ordered to post a proper and accurate apology in compliance with the previous rather clear order. Apple protested that it would need 14 days to modify its website. As The Register reported:

Judge Jacob said:

I’m at a loss that a company such as Apple would do this. That is a plain breach of the order.

This time the judges also specified font size 11 for the website announcement.

Apple protested that it wanted 14 days to make the changes. Bloomberg reports that Judge Jacob kicked the suggestion out of the courtroom.

“I would like to see the head of Apple make an affidavit setting out the technical difficulties which means Apple can’t put this on their site," Jacob said. “I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?”
(emphasis added)

Perhaps, if Apple is so technologically challenged that it needs two weeks to modify its website, it should hire a teenager to write an “APPOLOGY APP”™, patent pending ;-) for the purpose of modifying its website to comply with Court orders.

HPK

Steve Jobs on How he Started Apple with "Illegal" Devices. Lessons to be Learned re Bill C-11?

Here's an amazing interview with Steve Jobs about how he and Steve Wozniak ("Woz") made what he admits were "illegal" "Blue Boxes" for telephone hacking. These were their first products.

"If we hadn't of made blue boxes, there would have been no Apple."

Fast forward to the DMCA and Bill C-11. So, is there a "bright line" between "criminal" activity, "piracy",  and "innovation"?

This is recounted on tonight's "60 Minutes" and is apparently in the new biography.

HK

Fair Dealing, Standard of Review and Possible Interventions at the Supreme Court of Canada

The Supreme Court of Canada’s hearing process involving the SOCAN “Previews” case is well underway. SOCAN has just filed its factum (redacted version attached). Although the fact situation arises from the fairly specific circumstance of the use of 30 second previews of songs on iTunes, the overall issues that will inevitably be argued  go straight to the heart of what is “fair dealing” and what “research” means. If the Court finds in favour of SOCAN and its reasons are framed more generally than necessary, the decision could have far reaching negative consequences for those who believe that fair dealing is important.

Unfortunately, we do no not know at this time if the Court will grant leave in CMEC’s (Province of Alberta et al)  K-12 case, which involved the apparently far more general issue of whether material prescribed by a teacher or provided in multiple copies can be fair dealing. The CMEC Leave to Appeal application is attached. This is the other side of the coin to the previews case. In the former, the Federal Court of Appeal looked at the “purpose” of the user. In the latter, the Federal Court of Appeal refused to do so. The decisions are only a few weeks apart but emanate from different panels of the Federal Court of Appeal. The results are frankly not apparently reconcilable. Normally, we would know by now if the CMEC case would be heard. It is a mystery as to why the Court has not yet ruled on this.

What we do know is that the Court has decided to hear two other cases arising from SOCAN’s never ending Tariff 22 “music on the internet” case. These cases focus on whether there was, in the circumstances involved, a “communication to the public”. They do not involve fair dealing. Apart from the fact that these cases all stem from SOCAN’s Tariff 22 tariff, all involve the internet, and all come from the Copyright Board, there is nothing else obviously in common - except perhaps for the very troublesome but important  question of “standard of review” generally and with respect to decisions from the Copyright Board in particular.

It is interesting that SOCAN’s Tariff 22, which began its life in 1995,  has already been to the Supreme Court of Canada once, and was ruled on in 2004. Although Tariff 22A for online music services is now generating over $11 million a year, the rest of the tariff is a work in progress and appears to be far more beneficial to the numerous lawyers involved than to composers and authors.

All of these three cases will be heard together - likely in one day  - with the possibility of compressed time allotments for each case. In normal circumstances, the parties would get one hour each and interveners 10 minutes each. The other two communications cases are on a different timeline than the “previews” case - but everything will converge on December 6, 2011.

I was - but no longer am - confident that the SCC will necessarily grant leave in the CMEC case. The unusual delay in rendering judgment on the leave application and the fact that two less obviously related cases that have nothing to do with fair dealing have been linked to the “previews” case gives one cause for doubt. But hope springs eternal. Ideally, CMEC will get leave for its case and there will be a standalone hearing. (I should disclose that I was involved in this case in the Federal Court of Appeal for the intervener CAUT). 

Accordingly, any party interested in either issue  of “fair dealing”/ “research” or  the common element of standard of review may wish to seek leave to intervene in the previews case and to join the fray on December 6, 2011, when these cases are scheduled to be heard.

Potential interveners may wish to combine their efforts. This may not only save costs but enhance the chances of being heard under these somewhat unusual circumstances in which time allotments will be scarce and likely very limited.

Applications for leave in intervene must be filed on or before May 16, 2011.

Potential interveners may include those interested in issues involving:

•    education
•    libraries
•    archives
•    museums
•    publishing
•    freedom of expression
•    academic freedom
•    marketing and sales
•    retailing
•    operators of websites that provide previews, thumbnails or other limited versions of protected works
•    research of any kind, commercial or otherwise
•    administrative law generally, and standard of review at the Copyright Board in particular

HK

Does Apple Compete with IBM?

Does Apple compete with IBM?

According to a former IBM employee recently hired by Apple:

"To the best of my knowledge, IBM does not design, manufacture or market consumer electronic products," says Papermaster, in a court document filed Thursday. "Instead, IBM focuses on high-performance business systems such as information technology infrastructure, servers and information storage products, and operating systems software," Papermaster notes.

"Apple, on the other hand, is in the business of designing, manufacturing and marketing consumer-oriented hardware and related products," says Papermaster, in documents filed in U.S. District Court in Manhattan.

A district court in the USA doesn't agree.
Doubtless, more to come.

HK

iTunes Movie Rollout in Canada - sans DMCA

Apple is making available lots of movies for Canadians.

iTunes users in Canada and the United Kingdom will now be able to download and rent movies from Apple's online store.

Canadians will be able to choose from over 1,200 films such as "Juno," "I Am Legend," and "Cloverfield" from movie studios including 20th Century Fox, Paramount and Sony Pictures. More than 200 of the available titles for rent come in high definition.

Those in the UK will have a library of over 700 films, Apple said. The British rental catalog also features over 100 titles available in high definition.

This is the first big Apple online movie rollout after the USA, shared with the UK - hardly a pirate haven and, indeed, a leader in the EU.

This clearly suggests that Apple has little if any concern about any alleged inadequacies of current Canadian copyright law, which is apparently quite adequate to protect its interests and that of the studios.

And Apple just loves DRM and TPM, when it suits it.

One more reason why we don't need a Canadian DMCA ("CDMCA").

HK