Stealing

There are some people who believe Apple’s lawsuit against Samsung is all about rectangles and that Apple has no right to sue based on that criteria. That’s just false and I think I’ve found a way to explain it so everyone can understand.

Let’s look at this from the point of view of a musician. Everyone loves music, right?

If there’s a hit song on iTunes right now, is it okay if I learn how to play that song, copy down the lyrics and release the exact same song? Everyone would say no, that’s not okay. Even the most ardent Samsung supports would be aghast if they heard their favorite song copied and re-released.

But why? A song is just a collection of notes and words. What’s stopping me from taking those same notes and words and releasing a song? After all, musical notes and words are free for anyone to use, so copying that song and making a lot of money from should be just fine.

Except it’s not. What you would be copying is the way those notes and words were put together to create a song.

The iPhone and iPad are Apple’s songs. In fact, it could be said that Apple even created a few new instruments along the way.

Samsung didn’t just copy rectangles from Apple. They copied years of research in how to put together a hardware and software design that is new and fresh. It wasn’t done before and people loved it.

Using the music analogy, Apple had two blockbuster hit songs and Samsung stole them, note for note. That’s not right.



  • http://www.about.me/jfmartin67 JF Martin

    Here is something: what if Apple tried hard to copy Samsung? What is the unique visual and design language of Samsung’s smartphones? There don’t have their own language because they still it from others… hence nothing to copy from…

  • http://totalipad.com/ Christopher

    So what Jim is really saying is samsung is the Milli Vanilli of tech!

    • adamschoales

      I think it’s somewhat of a broken analogy since cover songs have been around in music for years. In fact we all know some of the best bands in the world got their start with covers (looking at you Beatles).

      So perhaps the better way to frame it is: copying the lyrics and notes of a song and releasing it while passing it off as a NEW song, not a cover.

      But in the end it still is a somewhat broken analogy…

      • http://twitter.com/theplotlessplot Henrique Sousa

        You do know that, in order to cover a song, an artist needs to pay a fee to the original author of said song. This translates perfectly to the Apple vs Samsung case! Samsung should be paying patent fees to Apple (like Microsoft, for example, is doing) and they’d be allowed to release aesthetically similar products. However, Samsung wants to use Apple’s designs as the basis for their own products without paying any fees to the company that invested years and – possibly – billions of dollars in R&D.

  • http://www.facebook.com/people/Koen-van-Hees/1301049198 Koen van Hees

    Um, you can copy songs as much as you want. As long as you pay the author… Maybe not the ideal example. Why not go back to car analogies. They never work, but are so much fun :-)

    • gjgustav

      But they didn’t pay the author. Even when the author offered a price to them in 2010. The analogy works fine.

      • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

        Uhm – no. Jim says it’s stealing when they copy the notes and sing it.

        He basically with this analogy says that Samsung isn’t stealing as long as they pay Apple but says the process of copying itself is already stealing.

        You could say that all Samsung does is negotiating the price .

        And that the whole “they stole they stole” schtick is getting old because if it’s all just a matter of royalties you can’t call it stealing.

        • gjgustav

          Uhm… yes, it is. Stealing is taking something without someone’s permission. Paying royalties is paying for permission. Without it, it’s stealing.

          • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

            You can’t steal immaterial things. This is the core of the whole problem. You know it’s basically the whole “Filesharing isn’t stealing” debate in reverse but let’s just stop arguing because I honestly think you need some time figuring this whole problem out first. Doesn’t seem like you thought about it that much.

          • gjgustav

            No, the core of the whole problem is taking something, physical or not, without permission. English is a living language and “stealing” is have evolved and is often used to describe taking anything without permission, physical or not. In all your pedantry, you refuse to acknowledge the evolution of the term “stealing.”

            I’ve figured the whole thing out just fine.

          • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

            I’d love to hear your stance on filesharing, Bittorrent, Megaupload, ThePiratebay, intellectual property and patent trolls then.

            No wait. I don’t really want to talk about it. I just hope you don’t have BitTorrent installed for anything other than getting the latest Blizzard WOW and Diablo 3 updates, all your software is paid for, you never ripped any of your DVDs etc. etc.

            And yes I know that the second paragraph is an ad hominem because I have the distinct feeling that you might remove yourself from doing what’s hinted at in paragraph one.

          • gjgustav

            What I do is irrelevant – it’s distracting from the argument. But for what it’s worth, I paid for all my music, DVDs, and software. I have never had BitTorrent software on my computer. I don’t play WOW or Diablo 3.

            Don’t bother replying – distracting from the argument twice in a row means you are more concerned with “winning” than having a debate.

          • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

            No I think that the patent system as well as intellectual property law is broken and you pretending that stealing a car is the same as building a car that looks like that car.

            That’s not even a coherent argument. You not even jokingly suggest that the english language has to be adjusted (e.g. the dictionary) so that two things that aren’t alike mean the same.

            I’m sorry but that’s just laughable.

    • JohnDoey

      When songs are copied, they don’t pay the author. A court has to force then to pay. Just like what is happening in court with Apple and Samsung.

  • http://www.johncblandii.com John C. Bland II

    Maybe at least the baseline. They did reposition a couple chords and add extra cymbals to the mix. ;-) lol

    • Mork from Ork

      I thought they added more cow bell.

      • http://www.johncblandii.com John C. Bland II

        That fits too. :)

  • http://www.facebook.com/msaleem Muhammad Saleem

    Hi Jim, could you talk a little bit about “mechanical licenses” as they apply to music, giving “the holder permission to create copies of a recorded song which they did not write and/or do not have copyright over.”

    Would you point to the $30/$40 licensing fees Apple offered to Samsung in 2010?

    • Mork from Ork

      I thought it was a special offer to Samsung only, primarily because they had such a special relationship with Apple (or so Apple thought) and because they produced so many of the iPhones key components. I really doubt that Apple has or will make similar offers to any other Android makers.

  • ellizardo

    “What you would be copying is the way those notes and words were put together to create a song.”

    This. Trade dress is a combination of a whole bunch of different things. Size/shapes. Icons. Gestures. Packaging. Marketing.

    These things on their own tend to crop up across various products from different companies; the rectangle shape for example has been used before the iPhone, and continues to be used by a whole bunch of different manufacturers. Even with rounded corners.

    But Apple isn’t suing Samsung because they made a rectangular phone with rounded corners. They are suing because Samsung made a rectangular phone with rounded corners, plus used their icon designs, plus used their gestures, plus used their packaging, plus used their charger design, plus used their dock connector design, and in the case of some stores even used their actual icons in their shop displays. In one ad they even used the same actress.

    Personally, I don’t buy the argument that people buy a Samsung phone thinking it’s an iPhone. I think they know that it’s not made by Apple. But the less technically inclined (that’s most people out there) will look at these Samsung products and think “it looks like an iPhone, it behaves like an iPhone, it’s packaged and marketed like an iPhone, therefore it must be just like an iPhone”.

    There are people who think they are buying a product that’s just as good as an iPhone, because Samsung is deceiving them. What Samsung are trying to do here is benefit from all the legwork that Apple have done to build the iPhone brand, and apply it to their own products.

    That goes beyond fair competition. It’s deceptive, it’s stealing, and it’s wrong.

    • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

      The problem here isn’t the copying. It’s the patent process, e.g. the licensing of ideas and the protection of them.

      Before patent law you could just take ideas and use them to put your own thing together. Be it music, art, et cetera.

      The way Jim is arguing is like saying that someone who follows the art of Bauhaus is stealing the ideas of the original members of Bauhaus.

      And on top of that this whole thing isn’t bringing us forward in any way. All it gets us is corporations not bouncing ideas off each other and furthering the field but rather litigating each other into the ground. As if 117 billion dollars wasn’t enough.

      I said this before – when Apple was only building iPods, they had to change their designs year-to-year because they didn’t, couldn’t or didn’t want to patent a small square with a click wheel and a tiny display they called iPod nano. They rather invented their own wheel again and again every year.

      This patent BS leads to the stifling of innovation. Not that I don’t care about Samsung copying Apple. Make them pay, sure, fine.

      But making THIS big a deal out of taking the ideas of another company and using them to make ALL phones better is just ridiculous to me. And even more ridiculous is the amount of aggravation. Why is it necessary to get so pissed off about the whole process of copying? This has been done for decades in all field imaginable and the reaction to it has been the lengthening of the periods a patent is held. The EU just tried to up intellectual property to 90 years after the death of an artist, with most of the profits that are gained going to large companies holding a shitload of rights because the artist sold them. Nobody is gaining from the patent system, it’s all just a way of pushing around profit between companies.

      It’s no wonder that people get pissed off about possible labor problems in China because everybody feels that the amount of money both Apple and Samsung (and more so Apple) are making is becoming frivolous.

      Patents were invented to guarantee the person who invented something could live off his ideas. With the invention of the stock exchange this has transformed into furthering the income of the stock holders.

      Basically people are getting pissed off because they want “their team” to win. Apple has become the new Manchester United. Just a bag of money with a nice logo on it that’s pissed off because another bag of money with another logo on it from a country that’s intrinsically corrupt took some of that money.

      In the end one of them is going to hold the cup and nobody is going to notice that THE GAME is fucked up. It’s as if you were standing somewhere in the Provence cheering on Lance Armstrong and then you have to wait eight years for the test results to come back. It’s pointless. Nobody is gaining anything except the lawyers because nothing is going to change about the game.

      • mr_lizard13

        I couldn’t care less about patents. This is about copying someone else’s work, and deceiving people into thinking that your product is just like someone else’s.

        There’s a very big difference between being inspired by something, or even copying elements of a product in order to make yours better.

        That’s not what Samsung is doing though. They are going way beyond what’s fair by copying just about everything.

      • JohnDoey

        There has never been a time when it was acceptable to copy someone else’s work and sign your name to it, like Samsung has done.

        Samsung did not accidentally invent the iPhone in parallel. They pissed on it publicly for 2 years and then released a copy. Not a similar phone, but a COPY. We have the paperwork where we see their “designers” changing hundreds and hundreds of features to be exactly like iPhone.

        Samsung is the incumbent in the phone business. So you are defending them using their entrenched position to copy a new competitor’s product and crush them. In half the world’s phone markets, the first iPhone they saw was Samsung’s copy. When iPhone arrived, it was iPhone that appeared to be the copy.

        And you are defending that.

        Also, many people saw iPhone advertising, then went to a phone store and were sold a Samsung and told it is the same. Thatvis also immoral.

        Ideas are actually free. You can sit at home and copy iPhpne all you want. But you cannot commercialize your copy and say it is your own work — that is a lie. It is not your own work. Samsung cannot just copy iPhone and say it is their work and sell that copy out on the market to unsuspecting consumers and make billions of dollars. They are bootlegging. Counterfeiting. LYING.

        • http://www.appleoutsider.de/ AppleOutsider.de – Sebastian P

          Nope, I am not defending it.

          Read the heading of the post again. It doesn’t read “copying”. I am arguing that. Nothing else.

  • Brzilian76

    Apple fan here – owned 5 Macs, 2 iPads, 4 iPhones over the last 5 years. That being said, Apple needs to SHUT THE HELL UP and stop whining. Interesting how hypocritical they are. What was Job’s famous quote? Oh yeah it was “Good artists imitate, great artists STEAL”. Apparently it doesn’t taste so good when they get a dose of their own medecine…

    • http://twitter.com/jgpmolloy John Molloy

      Love the useless justification for your rant. And that quote was taken way out of context. But, whatever.

      Here’s the thing. If you hate Apple so much sell your hardware, put your money where your mouth is. Boycott them.

    • Seurahepo

      “Good artists copy, great artists steal” is the quote. But try understand what it means.

      Using those terms, Samsung has been copying, almost verbatim, and should stop. Had Samsung taken design ques from Apple, AND others AND developed them further AND coming up with their own take on modern smartphone and it’s UI no one would be complaining. Copying at such scale could be permitted if iPhone or iOS were “perfect” and there would be no other way of doing it. But that’s not the case.

      Just look at WP7, it uses many iOS ideas, but takes totally new and fresh take on UI and other things. Or look at Meego on N9, totally unique swipe UI. Or look at WebOS, awesome cards UI for multitasking and gestures, many other things better than in iOS or any other competitor. And iOS itself, it surely was inspired by Jeff Han and others, but developed the “stolen” ideas a long way from the originals and made a great product, but not perfect by any means.

      Samsung did not take the path of Palm, MS and Nokia, but they chose to copy the market leader verbatim. They should pay some for it, but more importantly, the same kind of antics should be prevented from happening in the future.

    • http://www.aichon.com Brad

      If you had understood that quote in context, you’d have understood the distinction he was making. For one, he wasn’t talking about the legal issues involved, but rather the artistic process. More importantly, he was talking about making an idea your own, as opposed to merely copying it without an understanding for why things are done as they are. And in making it your own and fully understanding it, you can make it better. Samsung clearly does not fall into that category.

      To provide a different example of that idea, one of my NASA friends tells a story regarding the Buran space shuttle that the Soviets made (which may have been built from some early, rejected, stolen designs for the NASA shuttles). One day, while some NASA officials were visiting their counterparts in Soviet Russia, the Soviets asked why the space shuttle rotated after takeoff instead of orienting the correct way from the start. As it turns out, NASA did it that way since the tail of the shuttle would otherwise have come into contact with the launch pad’s tower during take off. That response got some rather sheepish looks from the Soviets, for you see, Buran rotated after takeoff, just like the American shuttle, despite the fact that their launch pad’s design wouldn’t cause that problem. They had been doing it simply because the Americans did it.

      It was a case of copying without understanding. Much like Samsung

    • JohnDoey

      You don’t understand the quote.

      Microsoft stole from Apple when they made Zune HD and Windows Phone, but Microsoft did not copy Apple. They did their own work.

      Samsung just copied.

  • http://twitter.com/750_mL 750 mL

    I sympathize, but it’s not like that. I won’t support non-Apple because I think they’re all a bunch of hacks. But that’s my boycotting their lack of ingenuity, not their copying.

    Of course if someone released the same song under their own name, that would be plagiarism. But that’s not what’s happening here. Samsung isn’t releasing the iPhone or iPad. They’re releasing similar technologies (running on different OSes, for one) clearly inspired by Apple. And yes, inspired is maybe too light of a word. But, to use your music analogy, this is more the equivalent of Stevie Ray Vaughan putting out his first record and getting sued by the Hendrix estate.

    Apple will always own its claim on influence. They are clearly the most (and perhaps only) influential mobile technology company on the market. But that doesn’t mean those who are influenced by them just have to sit and watch. They’re allowed to take Apple’s ideas and work to reshape them.

    If Apple hadn’t thought of the iPhone and iPad, would Samsung have? Not a chance in hell. So, thank you Apple. But as Jimi doesn’t just get to own blue guitar, neither does Apple just get to own two form factors.

    • loopy

      the “rectangles” argument is incredibly flawed. cars have 4 wheels. that doesn’t mean they all need to look the same. watches are a dial and 1-3 arms, yet somehow they manage to be incredibly distinct, and unique. chopsticks are simply two sticks of wood, but how many variants are there?

      books are all exactly rectangles, but have you ever confused war and peace with twilight?

      • http://twitter.com/750_mL 750 mL

        Right but they still look like cars. The smartphone and tablet are form factors. What do you want Samsung to do? Give a bigger bezel? Put a keyboard on it? Add a stylus? Just not have it be black and streamlined?

        If they did anything significantly against the design aesthetic of Apple, they’d be criticized for being outmoded. Again, I’m a massive Apple fanboy myself. I just think you’re all putting Samsung in an impossible corner here where basically no option is OK. You just don’t want them in this space, and that’s ironically really against the spirit of innovation you hold so dear.

  • Domvinyard

    “Note for note” – heh.

  • http://twitter.com/Moeskido Moeskido

    There’s a closer analogy to be used in this argument. At least one Android-fan acquaintance of mine who vilifies Apple for this lawsuit (among many other things) will simultaneously condemn Zynga for having made tons of money by knocking off original game work. It’s a remarkable dissociation.

  • Timothy Idol

    All hail Jim! Jim for President! (But with that kind of rational logical though… He’ll never have a chance)

    • deviladv

      considering Jim is Canadian, and Canada has a prime minister, rational thought says that it’s unlikely he’ll be president except in a country that allows foreign nationals as president.

  • Seurahepo

    Indeed they did steal some ideas, especially relating to direct manipulation, from Jeff Han. The idea of multitouch is way older, from 70s or so.

    But even with the ideas around, Apple used those ideas, developed them furiously and came up with an unique product. iPhone was way different to other phones of the time, especially UI wise.

    Samsung copied as much as they could from one product, not just UI, but whole trade dress.

  • crowd server1

    Apple inventor of the terms -Flatscreen (Song 1) -Icons program launcher (Song 2) -Touchscreen to multitouchscreen (Song 3) -Cellphone (Song 4) -Computer (Song 5) -In app filesystem (Song 6) For songs 2 and 6 i can take something as meaningless as the Nokia 6070 with the contacts files in the contacts app with its own icon on the device. Or how Apple is a mixer of songparts in the analogy for the iPhone with the iPad the big iPhone

  • http://twitter.com/DanRuswick Dan Ruswick

    Trade dress is different from copyright and patents. Trade dress pertains to the general look and feel. However, the notes and lyrics of that song are very specific, immutable characteristics of the song. Copying the song not for note is different from copying the general feel of the song.

    The only way this analogy would work is if Samsung were literally copying the entirety of the actual hardware parts, assets or code for the iPhone and iOS. That is akin to copying the iPhone “note for note.” That is what traditional patents and copyright protect against, and that’s what Jim is asserting. Samsung’s not doing that. Apple’s design patents and trade dress claims are broader and pertain more to the look-and-feel of the device, not to specific aspects.

    Instead of comparing this case to actual copying of a song, it should be compared to writing one’s own song that sounds similar to the original song. Samsung has designed, engineered and manufactured it’s own phones that appear similar to Apple’s. By no means did they “copy” the iPhone in the way described with the song analogy. Additionally, Apple’s trade dress and design patents are very broad. It would be as if the original song were a just a repeating quarter note. At that point, writing a song that sounds like the original is trivial and nearly impossible not to do. What song doesn’t use quarter notes? Likewise, what smartphone isn’t going to be a black rectangle? What smartphone isn’t going to display its apps in a grid on a page? How could a phone not do that? Should Samsung make only technicolor, triangular phones with sharp edges?

    If Apple had explicit ownership (through technical patents or copyright) of specific aspects of their devices that Samsung were copying exactly, I might be inclined to believe that Samsung is in the wrong. But Apple is arguing that Samsung made products that vaguely feel like their own. I don’t understand how copying the feel equates to copying the device “note for note.” Samsung isn’t using the same proprietary parts as the iPhone. They aren’t using any UI elements that are pixel-for-pixel copies of any iPhone assets or elements. They aren’t copying the iPhone “note for note.” Apple may win this case, but it certainly won’t be for the reasons Jim gave above.

  • Cam6280

    Brilliantly written, Jim. That’s a great way to think of it.

  • Chalkperson

    Songwriting is the wrong analogy, you can steal the first five bars, but not the sixth…

  • http://www.thegraphicmac.com/ JimD

    Anyone who needs an explanation like that is a complete dish¡t, and isn’t going to buy it, not matter how you explain it.

  • http://twitter.com/glen_george Glen George

    Amazing how even in 2012, people dont understand the true meaning of the quote Good artists copy, great artists steal.

    • http://www.johncblandii.com John C. Bland II

      I’ve been guilty myself. It is the regurgitation factor.

  • dvdphn

    Samsung is just a bad cover band.