The production company behind entertainment sketch show The Ronnie John’s Half Hour, which featured actor Heath Franklin’s popular impersonation of Chopper Read, says it has been left with no choice but to take legal action against Apple for approving an app which used sound bites from the show.
But app developers and intellectual property experts say the issue raises some complex issues about how copyrighted material is used in apps and whether it is Apple or the developer who is responsible for ensuring copyright infringements don’t occur.
One intellectual property expert has told SmartCompany the likelihood of Jigsaw Entertainment winning the case is extremely slim, while developers say app makers need to make sure their software is free of copyright violations.
The app in question, titled the Chopper Soundboard, was discovered by Jigsaw a number of weeks ago. Chief executive Nick Murray told SmartCompany that Jigsaw contacted Apple, but it has received no reply and has hired a team of lawyers as a result.
“The problem with all of this is that there is no physical person we are talking to, it’s all digital. We put a submission through the iTunes Store, didn’t have a response. So we rang a help line, and ended up talking to someone but that didn’t help because they weren’t in Australia.”
“We ended up getting our lawyers involved, and they’ve sent a number of letters off to Apple. The only thing that’s happened so far is the app has been taken down. But we’ve had no response from Apple at all.”
The company intends to take Federal Court action against the company, and will allege it breached copyright and engaged in misleading and deceptive conduct.
While Murray acknowledges developers would have had to sign an agreement saying they would not breach any copyright laws, he says Apple would have individually checked each app and the onus is on them to identify infringements.
“I’m sure there’s some agreement in place, but things are different here because the developer is anonymous, which is another big problem with how all of this works, and we don’t know how to get in touch with them. We think it’s Apple’s responsibility.”
The developer is only identified by a handle – “TheKeeganator”. Various Google searches reveal little about his personal details, only some forum memberships and links to another soundboard app from US crime series CSI.
“It’s one thing putting this stuff up on YouTube where no one is profiting from it, and Google can’t possibly check every single video that is uploaded every time, but I know that Apple checks every one of those apps. They test it. They know what’s in it,” Murray says.
“I think it’s a problem these big internet companies can operate this way, because often developers don’t believe that the normal intellectual property rights apply to them. They are either ignoring what is clearly a breach of copyright, or maybe they just haven’t realised… but they have taken the app off the store.”
Murray says Apple has “literally not replied to anything we’ve sent to them”.
“This is a big problem with these developers, and something I have an issue with the internet in general. The level of anonymity is huge here… it’s impossible for us to get in contact with these guy.”
SmartCompany also contacted Apple for comment, but no reply was received.
Intellectual property lawyer Trevor Choy says this problem actually occurs often with “middlemen” operators, such as eBay, but he also suggests it’ll be extremely difficult for Jigsaw to get any further in the case.
“Now that the app is off the store, are you going to sue for past infringements? I’m going to guess this wasn’t a great-selling app, but for argument’s sake let’s say it sold $15,000 – the legal bills are going to run into a couple of hundred grand.”
“Apple’s strategy is to not talk, don’t give any action in response. And it works really well for them most of the time.”
Choy says despite the fact Apple approves every single app on the store, receiving a copyright infringement notice would put them in an “awkward position”.
“If I were in Apple’s position, and I received a notice from someone saying that I had something to sell, I wouldn’t know if they’re approved by anyone or not, and it’s not really my responsibility to check that. It’s difficult to see Apple would have known about the infringement, unless they were informed and they still allowed it to be sold. That doesn’t appear to the case.”
“This isn’t really Jigsaw drawing a long bow, just a really expensive one. I’d be a little bit wary about whether or not Jigsaw will continue all the way with the case.”
The issue of whether or not developers, or Apple, are responsible for copyright issues is one that is debated by the developers themselves. Bjango chief executive Marc Edwards says it isn’t Apple’s responsibility, and developers need to make sure they are adhering to any copyright regulations before they submit an app.
“I don’t think there’s any way if they can check all this stuff is being cleared. I’m sure there’s legal documentation stating all these apps have to be free of copyright violations, like it is in the music industry when you hand over an album or whatever.”
The problem, however, is that developers are often individuals who use “handles” instead of their real names. In this situation, Edwards says, Apple needs to do all it can to bring two parties, whether they be businesses or individuals, together to negotiate.
“We’ve had a couple of issues in the past, and although they turned out to be nothing, we’ve ended up corresponding through the party due to Apple’s correspondence. It’s quite an easy thing and Apple’s legal team helped us out.”
OzPDA chief executive Graham Dawson says he has attempted to ensure all of his apps adhere strictly to copyright regulations. He argues it’s not worth losing sales if Apple takes your app down.
“Apple is being very cautious about this, but this is also at the expense of the developer of the accused infringement isn’t actually an infringement at all. Imagine if your app was taken down and you didn’t do anything.”
Dawson’s OzWeather app has been available for the past two years and is one of the most popular on the App Store, but Dawson says he was extremely careful to make sure his app adhered to Bureau of Meteology copyright, as it sources the data from the government department.
“The BOM has terms and conditions for data, but they are very liberal with them and I just have to put a disclaimer saying I sourced it from there.”
“The issue is that developers just need to adhere to the copyright, and make sure they are trying their best to… although I acknowledge there can be problems with all of this stuff. It’s complicated.”
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
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