Applications for mobile devices are in their infancy (think of Hollywood in the 1930s). Apple’s App Store is one year old, barely out of diapers, and in that time customers have downloaded more than 1.5 billion applications. More than 65,000 apps populate the store, and the number of developers is growing by the month.  Blackberry entered the game in April with its own App World, already featuring a few thousand apps.  And Android Market – designed for Google’s platform – provides another venue for mobile applications.  There are currently about 6,000 apps available for Android.

Many businesses have recognized that a well-designed app can have benefits on many levels including revenue generation, exposure, access to early-adopter customers, and viral-marketing.  If you are considering this, ensure you have a proper App Development Agreement in place when engaging a developer, and consider intellectual-property ownership, cross-platform concerns and potential trade-mark issues.

Related reading: Apple’s battle over apps

Calgary – 09:00 MST

A Montreal company has been hit with a cease-and-desist letter over its launch of an iPhone app that helps users find the city’s “Bixi bikes”. Bixi is the public-use bicycle system in downtown Montreal. Bixi (contrary to some reports) is not a registered trade-mark, though an application for registration has been filed.

There are many iPhone apps which permit users to schedule or locate public services, such as STM mobile (designed for the Montreal transit system), not to mention similar public transit apps for cities all over the world. Apps which locate private companies are also common, such as apps which pinpoint Starbucks, Tim Horton’s and TD bank locations.

It would be interesting to hear the court’s view on whether the use of Bixi in this form constitutes trade-mark infringement, but the letter appears to have worked. The app site now contains a French-language notice that says “We understand that it was an error (made in good faith) to use the trade-mark Bixi. We hope to work with Stationnement de Montréal and Bixi to find a solution that will respond to your needs.”
Calgary – 13:45 MST

In the (now notorious) Colorado case of InfoMedia, Inc. v. Air-O-Matic Inc. (Court Case Number: 1:09-cv-00302-ZLW), two makers of rival iPhone applications are in a trade-mark battle over the use of the phrase “Pull My Finger” in association with an application for the mobile device. InfoMedia uses the phrase “pull my finger” in its marketing and is seeking a declaration that the phrase is generic when applied to the product, and cannot function to distinguish Air-O-Matic.  Air-O-Matic counters that InfoMedia is riding its coat-tails by using the phrase.  Air-O-Matic has applied for registration of the phrase as a trade-mark, in association with “Computer application software for mobile phones”, though the application is encountering trouble because of the specimen that was filed. (They should have taken a screen-shot from iTunes.) In any event they’re both enjoying some additional press, which may have been the whole point to the dispute in the first place.

Battles between competing iPhone apps will become a feature of the legal landscape, and these cases trace their lineage to the old video-game disputes of the early 1980s:

• Atari Inc. v. Williams, a 1981 case out of California, pitted Atari’s famous Pac-Man against a rival game, Jawbreaker.  The court found that the strategy of the Pac-Man game was not protectable.
• Atari Inc v. Tyrom Inc., a 1982 case, decided that rival “Gobbleman” was infringing in its use of characters and design features; Pac-Man won that round.
• Williams Electronics Inc. vs. Artic International Inc. , a 1982 case over the popular game “Defender”, established important principles in video game copyright infringement cases, and specifically determined that a player’s interaction with a game – such that the player is “creating” or “authoring” new scenes as the game is played – does not detract from the copyright protection afforded the game.

We’ve come a long way from Pac-Man… though 25 years later, that game retains a certain diginity when measured against the “Pull My Finger” fart-simulator.

Calgary – 14:45 MST 

Lawyers are often asked how much copying will constitute copyright infringement.  Of course, every good lawyer will answer “It depends.”  The recent Harry Potter case illustrates this issue: Author J.K. Rowling claimed that a plan to publish a lexicon (essentially an alphabetized reference listing Harry Potter characters, names and other information) would be a violation of copyright in the Harry Potter series of novels, even though the novels themselves weren’t copied, but rather the character’s names and information about the characters.  Last week’s US ruling came down in favour of Rowling, and the proposed book will never see the light of day.

So, how much is too much?  In Canada, the Copyright Act refers to a “substantial part” but like many legal concepts, the exact meaning is up to the court to determine.  In one recent Alberta case, Flag Works Inc. v. Sign Craft Digital, 2007 ABQB 434 (CanLII) a company copied its competitor’s advertising brochure, changing only the name, and a few details in the text. The court had no trouble concluding that a “substantial part” was copied, and therefore copyright was infringed. 

At the other end of the spectrum, a recent US case (Veritas Operating Corp. v Microsoft Corp., No. 06-0703, 208 US Dist. LEXIS 8166 (W.D. Wash. Feb 4, 2008) made it clear that copying a mere 0.03% of software code (that’s 54 lines out of about 160,000 lines) may constitute copyright infringement, if the copied code is critical to the operation of the program.

A reproduction of about 5% (the copy comprised five lines out 116 lines of original text) was not considered a “reproduction of a substantial part of the whole” in the 2003 decision in Dolmage v. Erskine, 2003 CanLII 8350 (ON S.C.), and therefore did not constitute infringement.

Now you know why lawyers say “It depends”. 

Calgary – 13:10 MST

RIM has dealt with its share of intellectual property infringement claims.

In this latest chapter, iconic video-game maker Atari has accused the Blackberry maker of infringing copyright in two video games: Breakout and Asteroid. Both games first went to market in the 1970s. Atari alleges that the copyright in these games was infringed in the creation of RIM’s games BrickBreaker and Meteor Crusher, both of which were created for bored executives on their handhelds…executives who probably used to play Atari’s Breakout in 1977.

Atari’s lawyers issued a series of threats last year, and RIM decided to take the initiative by suing Atari in Ontario in October 2006. Atari quickly registered copyright in the two games and responded by trying to move the case the US.

In an Ontario decision released earlier this month Research in Motion Limited v. Atari Inc., 2007 CanLII 33987 (ON S.C.) Atari suffered a set-back when the court sided with RIM in this initial skirmish. The case will likely proceed and will be interesting to watch.

Calgary -  23:10 MST

In a case involving three computer game makers, a UK Court of Appeal decision (Nova Productions Limited v. Mazooma Games Limited & Others [2007] EWCA Civ 219) has confirmed that the general ideas and structures underlying a computer game do not enjoy copyright protection.  The decision, handed down last week, confirms that as long as the source code and graphics are not copied, the ideas and structures may be copied without infringing copyright. 

The law is very similar in Canada. One of the leading cases analyzing the question of copyright infringement in software is Delrina Corporation v. Triolet Systems Inc., a 2002 Ontario Court of Appeal decision.  Generally, Canadian copyright law is clear that ideas and structures are not protectable by copyright.  To arrive at that conclusion however often requires an exhaustive analysis of the code and the underlying structures.  Courts will consider whether one work is a “substantial” copy of another.  In measuring what is “substantial” the court will disregard elements of the work that either have no originality, are dictated by functional considerations (such as underlying structures) or are otherwise not protectable by copyright (such as ideas).

 

Calgary – 10:32 MST