The image is unmistakable and widespread this morning in certain blog circles: Steve Jobs unleashing the hounds (read: lawyers) on helpless baby bunnies (read: bloggers) for no other reason than the bloggers have been reporting on Apple’s attempts to combat unauthorized “iPhone skins,” cheap knockoffs of the celebrity gadget’s user interface.
The uproar has been loud and unified: There goes Apple again overreacting with the legal firepower and as a consequence shooting itself in both feet.
And you know what? It sure looks as though these bloggers have a beef.
But I’m thinking Apple’s actions are just not as much of a slam-dunk corporate atrocity as they are being portrayed.
Disclaimer: Please note that my name begins with Mc, not Mac; I’m no Mac-head).
(Second disclaimer: Thirty years ago I toyed with the idea of law school … and thirty years later my Dad still asks occasionally why I didn’t go — and, by extension, get myself a real job. So what I am about to attempt here is layman’s speculation, nothing more.)
Here are three reasons why Apple’s legal wrath may have been brought on a wider group than merely those actually responsible for producing and distributing the iPhone skins:
- There’s Trademark 101: Companies have to defend ‘em or they’re going to lose ‘em. Doesn’t seem to fully explain the shotgun approach here, but it’s the bedrock upon which all such decisions rest. (BTW, the Apple legal letters speak of copyright abuse, not trademark infringement.)
- Apple’s grip on the iPhone trademark is already tenuous, at best, in large part because the company for so long failed to use – and hence had little need to defend – the moniker. In other words, the company has some serious catching up to do in this department and what better way establish one’s status as a trademark protector than to go out and sprinkle the landscape with cease-and-desist orders?
- But here’s my pet theory. The beef from bloggers with Apple’s tactics boils down to this: All we’re doing is “reporting” on the situation; you’re shooting the messenger. “Reporting” is a fuzzy term out here on The Tubes, and, at the risk of setting off another of those tedious “are bloggers really journalists?” debates, I would like to point out that the question is simply unsettled as a matter of law. Many independent bloggers today see themselves as “publishers” disseminating “news,” but who’s to say that a United States Supreme Court a year or two from now won’t decide that only corporate-backed bloggers (like me, for a convenient example) should be afforded the “fair use” protection that journalists have traditionally relied upon to use corporate trademarks and copyrighted material in the course of reporting news about companies that own them. You say that would be wrong? Fine, I agree. Want to bet the iPhone franchise on our opinion?
As noted above, this is all guesswork on my part … and I am still of the view that it’s more likely than not that Apple has just gone off the deep end here.
