WWW.OSXP.NET Gone

http://www.osxp.net
from JoeUser Forums
Site taken down due to request from Apple



Sorry



April 22, 2002
VIA E-MAIL

RE: NOTICE OF INFRINGEMENT
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
[email protected]

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
18,332 views 31 replies
Reply #1 from JoeUser Forums Top
Once again, Apple proves itself to be a bully, and to validate the old saying: "when you can't innovate, litigate."
Reply #2 from JoeUser Forums Top
jester>> What do you mean Apple can't innovate? If they didn't have the ability to innovate, OSXP.net never would have existed in the first place.

All they're doing is protecting their intellectual property, which they paid thousands of dollars in development costs to create. Sure, they can be pretty heavy-handed, but in this day and age it's the only approach that makes people sit up and listen.

It's a shame the site got shut down, but surely it's better that innovation and originality prosper? Would you rather have a choice of good original skins, or spend your days wading through page after page of OSX and XP immitations?
Sins of a Solar Empire: Rebellion
Reply #3 from JoeUser Forums Top
I agree with grayhaze. Apple is very innovative to create a design that is envied by almost everybody in the entire universe. I support them in protecting their design as much as I'd support an artist from here stopping somebody from ripping their skins without their permission.
Reply #4 from JoeUser Forums Top
It certainly seems to me that it was the folks at OSXP.net who lacked the ability to innovate.
Reply #5 from JoeUser Forums Top
As anyone who's seen my body of work will realize - I absolutely LOVE to make themes/skins based on other Operating Systems. It's the only reason I ever got into skinning. However: if Apple, Sun, IBM or whoever were to claim infringement and ask that my stuff be removed, I'd certainly respect and comply with their request and I wouldn't complain one bit. That's the risk of doing a GUI/OS port.
Reply #6 from JoeUser Forums Top
Infringement implies loss. Apple is losing nothing because of the particular "infringement" occurring. The people using the skins don't feel the need to move to Mac just for the "look". Therefore Apple is just reinforcing the reasons why NOT to purchase a Mac. It's like the RIAA's crying foul about people who never bought music in the first place. "Piracy worldwide is costing us billions (in Afghanistan)".
Suddenly everyone is very un-American.
jtfolden - there's a line that should be held. Someone just throwing their legal weight around shouldn't just be caved into because "they said so". It should be the right thing to do, because you truly feel that they have the legal right to stop you. Assuming that you do feel that way then you should just stop all skinning now since I'm sure I can show that your designs infringe on my designs. I was first and you should cease and desist. Meanwhile I'll make money off of what you gladly gave away for free.
Reply #7 from JoeUser Forums Top
Hmm, didn't we have this very same thing about 6 months to one year ago ? So I guess they should have known...
Reply #8 from JoeUser Forums Top
When I first saw OSXP.net I was thinking 'What are they doing? Apple is going to be breathing down their neck as soon as they find out about them!'

Why anyone at this stage of the game would want to try and distribute anything similar to Aqua is beyond me.
Reply #9 from JoeUser Forums Top
umm, no, Michael... I'd simply remove them because I respect the people and the work that went into the creation of the original OS GUI in question and not so much just because "they said so". In any case, IBM hasn't stepped up and asked me to dump my OS/2 stuff yet so...
Reply #10 from JoeUser Forums Top
No Supprise, I almost had to change my Icons from "Aqua" to "Cobalt", For fear of geting seud.
Reply #11 from JoeUser Forums Top
Michael said 'Apple is losing nothing because of the particular "infringement" occurring.' To me this is a generalization that isn't true. It's not an easy thing to quantify, but they definitely do stand to lose. Maybe it's the 'unique OSX look' that is now no longer unique. What are the ramifications of that? Perhaps a couple of people loved the look so much they would have bought a Mac but instead bought XP and skinned it => lost revenue for Apple.

At any rate, it's difficult to prove loss as it may or may not have occurred yet and even if it has it's difficult to measure. That's why the email said '... result in the dilution of our client's famous trademarks'. How to you quantify dilution? Even if you're pro-porting, I'm sure that you'd agree that, when done to the extreme at which the Aqua ports have been done, it definitely does result in dilution of Apple's creativity and unique interface.
Reply #12 from JoeUser Forums Top
As being the one of the persons involved with OSXP.net, in response to MikeB314....a lot of hard work and time went into the site, as well as the creation and coversion of products offered. As far as "innovation" is concerned, we just wanted to offer the "OSX" look for others who did not have a Mac. In fact that is what prompted me to buy myself a brand new Mac. People at Aqua-Soft.org are actually spending a lot of time to bring programs and the like to XP that are enjoyed on other platforms. ACTUAL PROGRAMMING. So as far as innovation goes, I think "skinning" an app is just as innovative as actually creating a program from scratch, replacing .dll files and getting them to work together and then offering them as free without a penny earned. Not to mention we can come here and see some of our work (i.e. icons/object bar themes) and the like blatantly bitten. Oh well. What can you do, except open another website
Reply #17 from JoeUser Forums Top
If you guys really want to get picky, Apple never "innovated" in the first place. The whole "graphical OS" was developed by Xerox's PARC facility. Apple adapted it for their use, then Microsoft adapted it for their use, and so on, and so on.

If anyone should be litigating, it should be Xerox.
Reply #18 from JoeUser Forums Top
jtfolden - thank you for clarifying the issue of respect.
Xymantix - I guess part of the problem is the issue of Trademark - is the entire OSX interface trademarked or is apple only upset over the use of OSX, APPLE, and AQUA (two of those words it should not have been able to trademark). So if we called the skin set WATER and used RED FRUIT and described Mac as My Aunts Computer could they still complain about infringement.

Mostly this is just bullying. Instead of giving the infringing artist a notice that tells them specifically where they are infringing and how they can become non-infringing and where that boundery is, they threaten. If I rip someones site off they might e-mail and flame me for being a jacka$$. But if they politely tell me that they don't appreciate being taken and not getting credit and that could I please change X Y and z and give notice as to the original author. That course of action would be much more mature.

Can Apple legitimately state that you are infringing on their trade dress when the "style" of dress (glass buttons, and interlace effects, and transparency) existed prior to OSX. Is it the combination of the effects or the pixel perfect implementation.
Reply #19 from JoeUser Forums Top
What is Apple's problem, ok their intellectual property has been infringed, so what.

They released the iPod, surely that product is an infringement of the Music Industries copyrights. You can play MP3 files that you have either downloaded from the net, or ripped to your pc/mac.

If they had the foresight to release a version of MAC OS for the PC then would there be a problem. Afteral you can by Virtual PC for Mac, which enables you to use Windows. So come on Apple, show you have some balls and do it. Write a version of OSX for PC, provide us with an alternative to Microsoft. OSX is based on UNIX, Linux is based on UNIX. Give us an OS that is intuitive and doesn't take a gig to install. Retail for a ton (English slang for £100)and see what response you get.
Reply #20 from JoeUser Forums Top
I'm so tired of this argument. The same argument goes on every day on just about every skinning site, and still there are a vast number of people who just don't understand copyright. It just ends up feeling like you're banging your head against a brick wall when you continually try to explain the reality of copyright law to people who basically don't give a damn about the law in the first place. There is no 'politeness' required where the law is concerned. You don't see the police calmly standing talking to a criminal as he robs a bank at gunpoint - "Excuse me sir, but in robbing this bank you are breaking the law. Might I speak with you for a moment so that I may explain what steps you need to take in order to not break the law?"

When will people understand? If you break the law, you can't expect the victims to handle you with kid gloves. In this case, Apple were more than polite. Legally, the first contact they could have had with the OSXP guys was a court summons. The fact that they wrote them a rather polite, concise letter first shows that they're not as cold and heartless as so many Mac-bashers would have you believe.

The fact is, if you do something illegal, expect to get heat. If you don't want the trouble, don't do it in the first place. Or, in other words, if you can't do the time, don't do the crime.
Reply #21 from JoeUser Forums Top
As I said in the thread at skinz a year ago, it amazes me that Apple (with less than 10% of the computer market, mostly accounted for by graphic artists and related industries) would go after graphic artists that try to emulate their OS design and their functionality. They should thank them for their efforts and give them a free Mac...

I'm not arguing their right to protect their property, I just think from a marketing point of view it's a stupid reaction....
Reply #22 from JoeUser Forums Top
grayhaze - yeah, thanks for once again drilling the association of robbers (an active agressive and often violent crime) with copyright infringers (many of which do not know that they've committed a crime). As if we don't see this comparison made every day by Hillary and her RIAA/MPAA lackies.

While the law doesn't require politeness and consideration it would be nice to see someone do it just for kicks every once in awhile. Because while the law doesn't require politeness it doesn't exclude it either. Additionally part of "corrections" (you know the "department of corrections") is letting the person you're correcting know EXACTLY what they need to do better to not fall into the same infringing practice again.

Additionally I'm not a Mac basher. I'm a basher of any company that is heavy handed with the consumer or potential consumer of their product. Heavy handedness while not specifically dissallowed by law is not specifically included by law either.
Reply #23 from JoeUser Forums Top
My personal belief is that discussion, any discussion, is good. It helps us to understand the problems and find solutions. Part of the prolbem as I'm seeing it is people don't care about the law because it has been used against them too many times and is no longer a law working for the interests of anyone except the major corporations. The law is no longer the balancing act it was originally intended as - to promote the interests of the public good while allowing the copyright/patent/trademark holder the right to seek reasonable compensation for their hard work. Now reasonable compensation to some companies is spending 4 million in research and gaining 40 billion in revenue and then when the patent runs out suing and threatening suit against anyone who might attempt to use the patent data as allowed by law.

If you don't like the discussion, if you don't want to add to a discussion about solutions, if it tires you, then it's very easy to remove yourself from it. Many people put themselves in positions of conflict every day and then bemoan the fact that they are in the position at all.
Reply #24 from JoeUser Forums Top
Apple is shutting down Mac run sites.. do the apple lawyers have something agains Mac ? Confused ? so are we.. MacXP, OSXP, and Aqua-soft are mac run... so why is apple shutting them down.. head here.. to comment..

http://www.neowin.net/bboard/showthread.php?s=&postid=210762#post210762
Reply #25 from JoeUser Forums Top
I feel that to an extent Grayhaze is right. Still how many of you record tv programmes, borrow cd's from your friends, or download music/pirate software from the internet? I reckon 99.9 percent of you do. Are you infringing copyright? Yes you are. Now are you going to go to say Macromedia and say, sorry I have just downloaded all your software for free and am using serial numbers/cracks that I download from blahblahblah.com.

I'm not justifying what OSXP.net and MacXP have done. I'm just saying if you want your PC to look like a Mac then do it. Ford or GM won't stop you from customising your car. What does anyone else think?