Someone Stole Your Brilliant Business Idea?




 You’re in good company. Even the late Steve Jobs had his complaints about this. In a biography of the Apple founder, Mr. Jobs complains that Android was “grand theft”, and he vowed to fight back. Is Android a rip-off of the iPhone? It certainly followed Apple.  The iPhone was launched in 2007, Android was launched in October, 2008. Apple introduced its App Store in July, 2008. Android Market came out a few months later. Even though it entered the marketplace later, by 2010, Android captured 44% of all mobile app downloads in Q2 2011, passing Apple’s 31% stake (see CNET report) The numbers are hard to crunch (remember, iOS is on multiple hardware devices made by one manufacturer, and Android sits on over 40 smartphones made by six manufacturers), and Apple’s system comes out on top by some measures, but by August 2011, some estimates put Android at a leading 48% of the smartphone market share.

So there is no doubt that Android has stormed from behind as a credible alternative to Apple’s ecosystem, but does that make it a “stolen idea”? Not from the perspective of intellectual property law, since there is no protection in the overall idea of a mobile platform that can run third-party apps. The real question is whether Google copied iOS code (there’s been no suggestion of that), used Apple’s trade-marks (nope), or infringed any of Apple’s patents (see this story for one of the many Apple vs. Android patent fights). 

In any event, there is a fine line between infringement and inspiration. Legend has it that Mr. Jobs was “inspired” by the mouse he originally saw at a Xerox research facility. Neither did Mr. Jobs invent the MP3 player or the idea of a mobile device running third-party apps. My Palm Treo was doing that years before the iPhone was launched.

Calgary – 07:00 MDT

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Cloud Computing in Calgary


A reminder: next week on November 1 & 2, 2011, the 3rd Cloud Computing Law conference will be held in Calgary, hosted by Federated Press. Richard Stobbe will be presenting on the topic of risk-allocation in cloud-based services such as iCloud and other enterprise cloud computing contracts, including warranties, indemnification and limitation of liability clauses.  

IT lawyers and in-house counsel from top companies will review:

  • the risks & legal pitfalls of cloud computing
  • legal and compliance issues 
  • the implications of virtual storage on legal jurisdiction questions
  • key issues that need to be addressed when negotiating and drafting a cloud computing agreement  

For registration details: Cloud Computing Law Conference (Calgary) 

Readers of are eligible for a 15% discount – use this code when registering: CCL1111/PR 

Calgary – 07:00 MDT

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App Law: Update on Privacy



iOS devices generate a trove of personal information. Do app-developers have access to the personal information of iOS device users? This is the basis of a complaint launched by a US group, as a nationwide class action lawsuit against Apple and a number of iOS app developers. The claim suffered a setback in September when a US judge dismissed the suit (see the PDF; the dismissal makes for interesting reading), with leave to amend.

There are more than 200 million iOS devices in play around the planet, several hundred thousand available apps, and reams of personal info generated by users: address book entries, cell phone numbers, file systems, geolocation data, subscriber identity numbers, keyboard cache, photographs, SIM card numbers, and unique device identifiers.  Who has access to this info, and for what purpose, are questions that have cast a cloud over Apple’s popular ecosystem. 

This story is one that will likely come back through an amended complaint.

Calgary – 07:00 MDT

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SCC Defamation Decision

This is a story we’ve been following for several years (see our past posts here: Update: Canadian Online Defamation & Hyperlink Case). It’s based on an allegation of online defamation brought by businessman Wayne Crookes, which ultimately focussed on one issue. To succeed in an action for defamation, a person must prove on a balance of probabilities that the defamatory words were “published”. If you hyperlink to defamatory content, can you be liable for “publishing” that defamatory content?

In a decision this week in the case of Crookes v. Newton, 2011 SCC 47, the country’s top court has upheld the lower court decisions, and decided that there was no publication of the defamatory content in this case. A hyperlink, by itself, is not “publication” of the defamatory content to which it refers. To decide otherwise would “seriously restrict the flow of information on the Internet and, as a result, freedom of expression,” according to the court.

Some in the court pointed out that a blanket statement that hyperlinks can never constitute publication is too broad, since links can take many forms. The consensus is that a mere general reference to a website is not enough to find publication. Anyone who links to salacious gossip can now breathe a little easier.

Calgary – 07:00 MDT

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Domain Name Update: .CA


Just when you thought it was safe to go back in the water….along comes another change to the domain name world.

This is a final reminder that the Sunrise period for the .XXX blocking process runs until Friday, October 28, 2011, to protect Canadian trade-marks. To be eligible for this procedure, the request must correspond to a trade-mark that was registered by Sept. 1, 2011. For more info, see this link. 

Next up:  The Canadian Internet Registration Authority (CIRA) recently announced its own changes within the .CA domain. CIRA is currently proposing to introduce French-accented letters. The current system only recognizes .CA domain names in ASCII or non-accented letters (a-z) and numbers. CIRA is considering the implementation of French Internationalized Domain Names (IDNs) at the second level (to the left of the dot). What does this mean? This would permit the use of accented letters such as those listed below:

  1. é, ë, ê, è
  2. â, à
  3. ô
  4. ù, û, ü
  5. ç
  6. î, ï

Yes, this would come complete with its own Sunrise period, to permit existing registrants to preregister and a landrush protocol which is similar to other domain name changes such as the introduction of the .XXX domain. For more info on CIRA’s proposed changes, see this link. Calgary – 07:00 MDT

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Two Software License Decisions


Here are two recent U.S. software decisions to note. Both decisions strengthen the hand of software vendors:

  1. In a follow-up to our earlier post (Software License Upheld), the Ninth Circuit Court of Appeals decision in Vernor v. Autodesk Inc. has been denied leave to appeal, meaning the US Supreme Court has elected not to review the decision. This case dealt with resales by Vernor of used copies of AutoCAD software. Vernor claimed the resales were permitted under the “first sale doctrine”. The decision stands for the proposition that a software license is an important exception to the “first sale” defence. This is because the court found that Autodesk had not sold copies but merely licensed copies of the copyrighted work. 
  2. In another Ninth Circuit decision ( mc573.jpgApple Inc. v. Psystar Corp., 9th Cir. Cal. Sept. 28, 2011), a small computer reseller operated a business re-selling Mac OS X pre-installed into non-Apple computers.  Apple complained that this was an infringement of copyright and a breach of the Mac OS X license agreement. Specifically, Apple’s software license agreement requires Mac OS X users to run their copies only on Apple computers. Psystar raised the defence that this was restrictive and constituted “copyright misuse”. The court sided with Apple, pointing out that to demonstrate “copyright misuse”, the license agreement would have to restrict creativity or restrict competition. In this case, the Mac OS X license agreement did neither. Apple’s license does not restrict a competitor’s ability to develop its own software, nor does it prohibit customers from using non-Apple components with Apple computers. Instead, Apple’s license merely restricts the use of Apple’s own software to its own hardware.

Calgary – 07:00 MDT

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Privacy & Freedom of Expression (Part 2): Who is a “journalist” anyway?

In our previous post (Privacy & Freedom of Expression: Alberta Court Says Privacy Law is Unconstitutional), we discussed the recent Alberta decision that struck down portions of a provincial privacy law (the Personal Information Protection Act), because of the way it limited protections for organizations other than “pure journalists”. Let me put this another way: collection and use of personal information is regulated by PIPA; in that Act, if you collect personal information for “journalistic purposes” and no other purposes, then you would be exempt from the regulations set out in PIPA. It’s like a get-out-of-jail card for journalists. The hitch is that the collection of personal info has to be “journalistic purposes” and no other purposes. However the court in United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415 (CanLII) said that is an infringement of the right to free expression for all those organizations who aren’t “pure journalists” – that is, organizations who might collect personal info for some purpose other than journalism. The Supreme Court of Canada in its 2009 decision of Grant v. Torstar Corp. (2009 SCC 61), defined “journalist” broadly to include bloggers and anyone “publishing material of public interest in any medium”.  So is the effect of these two decisions to create a loophole for anyone to collect personal information so long as they are “publishing material of public interest”? Anyone with an internet connection can set up a blog, Facebook page or Twitter account (or all three) in about 5 minutes, so the barriers to entry to qualify as a “journalist” and start publishing personal information appear low. It appears we have a pretty big hole in Alberta’s privacy laws.   Calgary – 07:00 MDT

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The IP Arms Race

The Globe and Mail carries an interesting article penned by John Manley on intellectual property protection for software and IT companies and the trouble with patent trolls: Intellectual property: A new kind of arms race, with patents as ammo.

Calgary – 07:00 MDT 

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US Court finds host liable for copyright infringement


In Louis Vuitton Malletier SA v. Akanoc Solutions, Inc., No. 10-15909 (9th Cir. Sept. 12, 2011) the US Ninth Circuit Court of Appeals found that “providing direct infringers with server space” qualifies as a material contribution for contributory copyright infringement of copyright. In Canada, we have the concept of a “authorizing infringement”, but generally, a person does not authorize infringement by authorizing the mere use of equipment (such as server space) that could be used to infringe copyright (according to the Supreme Court in the CCH case).  “Authorize” means to approve, permit and encourage the infringement. However, a court in Canada may find that copyright infringement is “authorized” in circumstances where there is something less than less than direct and positive approval and encouragement, for example, if there is some level of control over the infringing actions. This concept dates back to early cases  from the 1920s (Falcon’s case) and 1940s where “certain mechanical contrivances” (transcription turntables) were used to copy musical recordings, and became the subject of copyright infringement claims.

Calgary – 07:00 MDT   

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