The Slipper Slope of Intellectual Property & The Internet

by Brad Wardell

One of the most common discussions on websites like WinCustomize has to do with the rights of intellectual property (IP) holders. Obviously, a site like WinCustomize, which is full of content (read: Intellectual property) created by others is going to be very sensitive to IP issues.

The Internet is an IP mine field. That’s because “IP” on the net falls into 4 general categories:

1)       IP that is indisputably protected by international (or at least US) copyright / trade dress / trademark law. Examples: The Coca Cola logo. Movies converted to digital format. Writings that have been copyrighted.

2)      IP that is probably protected by international (or at least US) copyright / trade dress /trademark law but has not been thoroughly tested in court. Examples: Icons. Wallpapers. Graphics created on the net that are distinct enough to be recognized by a common person.

3)      IP that may be protected but can sometimes fall into a gray area due to conflicts with “Fair use”, “Lack of enforcement”, Lack of distinction, etc.  Examples of this could be skins or visual styles. Fan art. Themes.  Usenet posts. Website content. Email.  We’ll talk about this item at length in a minute.

4)      IP that may not be protected but large corporations have laid claim to it via patents or simply sheer legal might. Examples: Apple claims to own the exclusive right to have round title bar buttons. Amazon claims to have the exclusive rights to “one click”. There are patents on virtually everything you do on your computer that, thankfully, no one tries to enforce.

At WinCustomize, this becomes a real problem because many people will say “Can’t we just run the site completely ‘clean’?”  If we did that, we would need full time lawyers to determine what is and isn’t okay to accept.

But WinCustomize tends to fall on the side of protecting IP holders as much as reasonably possible. Most sites of the net that have skins and themes and icons and such are much much looser in their protection than us. But even then, category 3 is where things start to get interesting.

For example, is the left and right borders of a skin protected under copyright? One annoying thing about the Internet is that there’s always some self-appointed expert (Ahem) that will try to give you a definitive answer on these things. Here’s the short answer: The rights of the IP holder extend as far as his legal resources stretch. That is, the more lawyers you can afford, the more IP rights you actually will end up with.

A long while ago, I somehow ended up in the middle of a rather nasty debate between two skin authors. One skin author demanded that the second skin author remove their skin from every site because the left top most edge was “too similar” to his skin. It wasn’t a rip. It wasn’t pixel per pixel the same, but the second author said that he was indeed inspired by the first author’s skin. But that the work was completely his.  During this mediation, the first author started making legal threats on the second author. At that point, I suggested that the second author transfer his skin to me and I would handle the first author. Because the first author was on shaky legal ground and had a long history of going around making legal threats of this nature. The reality is, the legal protection of a skin (the whole skin) is not firmly established since a skin is a lot more than just the graphics. It’s really a collection of bitmaps and scripts put together.  With that in mind, trying to lay claim to a distinctive looking border concept is really pushing it.

Hence, you always have a delicate balance between IP holders, both corporate and individual, who would try to lay claim to vast expanses of innovation and other IP creators who are trying to innovate without stepping on a mine.

Generally, the rule of thumb WinCustomize uses is “He that creates the IP has the right to decide how that IP is used and distributed.”

Of course, there’s a big loophole there that opens up a can of worms – establishing what IP is. For instance, since Apple claims that it owns the right to have red close buttons or round title bar buttons, do we remove all skins / visual styles that have rounded title bar buttons?  Someone probably has a patent on scrollbar grippers too. Do we research that and then remove skins that have that?  Apple also claims to own the trashcan concept for…well the trashcan. Hence Microsoft uses the “Recycle Bin”. But what about all those Mac and PC icon authors who create trashcan icons? Should all those sites promptly get rid of those too?

And then there’s “fan art”. When someone creates a Hulk wallpaper that they drew, should that be removed? Especially when you consider that there are thousands of Hulk fan sites that have scanned in Hulk images from the comic book?  A google search on “Mickey Mouse Fan Sites” brings up thousands of sites with Mickey Mouse images on them. And this is Disney we’re talking about who is very protective of their IP.

Websites don’t and can’t operate in a vacuum. Even if one took the route of “Hey, yea, all those other sites are breaking the rules, it doesn’t make it okay for you to do so, remove everything that can possibly be violating someone’s IP rights..” (which of course means protecting the IP rights of one user could mean violating the rights of another) the net result is that your site would fall into obscurity and someone else would fill the void and nothing is really accomplished.

That is why a “net consensus” is what really has to be found. That as an Internet community we decide what is and isn’t acceptable use of IP. That the rights of IP holders be based both on legal rights and common sense.

A good example of this is the concept of “Ripping”. No legitimate theme/skin site today will allow people to submit content that was taken fully or even partially from someone else’s work. It is called “Ripping” and regardless of where the legality of it lies, the Internet community, as a whole (or at least those who control the websites that contain this stuff) have come to a consensus of what the IP rights of skin/theme/icon authors are and enforce them.

There still is no consensus on things like OS skins. Even Apple’s lawyers have explicitly stated that Mac classic skins are fine with them but they object to “Aqua” based themes. This was some time ago but companies like Stardock have not bundled Aqua based MacOS visual styles with its WindowBlinds product based on Apple’s request. Even though hundreds of websites have Aqua skins and themes or even are dedicated to the emulation of the Mac GUI on Windows. Some people feel that OS skins should be as protected as an individual’s skin. The general consensus I have seen (every skin site has OS skins as far as I know) is that OS skins are kind of like fan art, there is no confusion on who the ultimate source of the OS skin is. Whereas ripping of an individual’s skin is different because the average person would not realize that the skin they are downloading was actually created by someone else than the person who is taking credit.

Similarly, fan art is much the same thing. Nearly every public site that accepts wallpaper is full of wallpapers from movies, TV, fan fiction, etc. 

Sites like deviantART, ThemeXP, Deskmod, etc. all have sections just for movies.  So does WinCustomize but fan art falls under heavy moderation and tends not to go up. The net effect there is that it puts WinCustomize at a competitive disadvantage (and ironically, I have to go to deviantART to get my movie wallpaper even though WinCustomize has a wallpaper section). Fan art is a trickier thing. Does a wallpaper that contains images from Star Wars violate copyright? If so, there are thousands of wallpapers out there that violate this and thousands of websites distributing them along with thousands of fan sites.

The most important thing individuals and websites can do is use common sense and follow their conscience. Individuals who make skins, themes, icons, etc. usually ask for only one thing in return –- respect. Respect for their intellectual property rights.  As for the other IP issues like those mentioned above, they are still evolving. Right now, the Internet is still kind of a wild west where the big players can send in the lawyer cavalry to enforce the rights they believe they have.

It’ll be interesting to see how things progress as the net matures.