From: "Vayra, Fabricio" <VayraF@ARENTFOX.COM>
Date: Mon Dec 03, 2001 09:56:59 PM US/Eastern
To: 'Michael Holve' <michael@litpixel.com>
Subject: RE: Notice of Infringement
Dear Mr. Holve:
Thank you for your December 3, 2001 reply to our letter. As you know, in
our letter to you dated November 30, 2001 (copy enclosed below), we
expressed our client's concerns regarding the publication of unauthorized
instructions and screen shots pertaining to the modification of the Mac OS X
10.1 update software on your web site at
<http://everythingmac.org/articles/UpdateCDHack>. The purpose of this
letter is to further clarify our previous correspondence.
Although you note that you are "merely posting the plain English 'procedure'
and have not indicated that [you] actually performed it", the Digital
Millennium Copyright Act ("DMCA") proscribes the publication of material
which is primarily designed for the purpose of circumventing a technological
measure that effectively controls access to a work. You should be aware
that, once one is given notice of the infringing nature of content posted on
a web site, the continued publication or distribution of such materials may
be deemed a violation under the DMCA. The materials you are publishing
include step-by-step instructions which provide even the most
technologically-challenged person with the tools to circumvent copyright
protection mechanisms within Apple's software. Thus, even assuming that the
information provided on your web site already "has spread across the Web,"
Apple believes that your actions are especially harmful and may promote the
theft of Apple's copyrighted work.
Therefore, we again request your cooperation with Apple and its endeavors to
protect its intellectual property rights. We look forward to hearing from
you as soon as possible to confirm that you have ceased publishing or
distributing the above-referenced materials.
Sincerely,
Fabricio Vayra
202/857-6130
vayraf@arentfox.com
Arent Fox Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Phone 202/857-6000
Fax 202/857-6395
www.arentfox.com
-----Original Message-----
From: Michael Holve [mailto:michael@litpixel.com]
Sent: Monday, December 03, 2001 1:23 PM
To: Vayra, Fabricio
Subject: Re: Notice of Infringement
Vayra,
It is my belief that this "procedure" is written in plain English and
as such, does not constitute a trade secret, intellectual property or
source code of Apple Computer, Inc. Therefore, I do not believe that I
will be removing it at this time. Further note, that this information has
spread across the Web, usenet, Gnutella and other locations - and not my
information as seen on the Website, but the original, basic instructions.
If I were to remove my Web page entirely, the information would still
exist, at large - on the Internet.
Also, I am merely posting the plain English "procedure" and have not
indicated that I actually performed it, so the basis for suggesting that I
violated any copyright laws or licenses is unfounded.
I might conceed, however - to removing the screengrab portions of the
posted "procedure" if you feel that is necessary in light of the above.
I eagerly await your reply.
On Friday, November 30, 2001, at 07:05 PM, Vayra, Fabricio wrote:
November 30, 2001
VIA E-MAIL
Michael Holve
michael@litpixel.com
michael@everythingmac.org
RE: Notice of Infringement
Dear Mr. Holve:
We represent Apple Computer, Inc. ("Apple") with respect to its
intellectual
property matters. Recently, it has come to our attention that you are
publishing unauthorized screen shots of Apple's software (the "Screen
Shots") and providing unauthorized instructions concerning the
modification
of the Mac OS X 10.1 update software (the "Software") on your website at
<http://everythingmac.org/articles/UpdateCDHack>. Specifically, it appears
that you are providing instructions with the Screen Shots for converting
Mac
OS X 10.1 update Software to a full install version of Mac OS X from your
web site in violation of the Copyright Act and in violation of your
software
license agreement with Apple.
You should be aware that Apple has never authorized you to modify the
Software or publish the Screen Shots. Moreover, by publishing the Screen
Shots and providing instructions on how to modify and circumvent
restrictions within the Software, you are infringing Apple's copyrights in
violation of the Copyright Act and engaging in acts of unfair competition
in
violation of the Lanham Act. Additionally, Apple's license agreement,
which
you accepted upon purchasing a copy of the Software, specifically
prohibits
you from copying, decompiling, reverse engineering, disassembling,
modifying
or creating derivative works of the Software.
Consequently, on behalf of our client, we demand that you cease and desist
from publishing or distributing the above-referenced materials. We
believe
that this is a very serious matter, thus we ask that we receive
confirmation
in writing from you that you have removed the infringing material from
your
web site.
Thank you for your prompt cooperation.
Sincerely,
Fabricio Vayra
202/857-6130
vayraf@arentfox.com
Arent Fox Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Phone 202/857-6000
Fax 202/857-6395
www.arentfox.com
