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Apple can absolutely accuse you of pirating something it doesn't want to sell. The real question is whether they will spend the time or money to do anything about it. The answer is complicated. In your scenario, Apple will technically "win" without question. But it might be a phyrric victory because a jury may well agree with your reasoning and refuse to award any substantial damages. In fact, Apple might be shooting itself in the foot if the lack of damages encouraged other would-be "pirates." Apple would also risk bad PR, the Streisand effect, and have to spend a lot of money upfront on attorney fees and costs. Note that under the law of some countries the right not to distribute a copyrighted work is viewed as a sort of natural or "moral" right to control one's creation. The US doesn't generally take that view; we think of copyright and copyright damages mostly in economic terms. Thus, if your "pirating" isn't actually doing economic harm to the rightsholder, you're somewhat unlikely to owe massive damages. Countries with more moralistic copyright regimes may have stiffer penalties in your scenario. You might have some pity for Apple in your scenario (I do) because the law strongly encourages rights holders to bring a lawsuit in order to protect their rights. It's a use-it-or-you-might-lose-it-to-some-unknown-extent scenario, and lawyers and companies hate uncertainty. This can lead companies sue for copyright violations even when they don't really care. For example, a book's and publishing house probably don't care about a fanfiction blog. They may even like fanfiction because it's grassroots promotion of their product. But they may still feel forced to sue to stop fanfiction so that their rights aren't questioned the next time they need to sue, e.g., a bootlegger that's passing off unlicensed copies of their product as the real thing on Amazon. On a more positive note, I like TFA because it highlights a company that did The Right Thing. WordPerfect made its Mac product (WordPerfect 3.5e) freely available when it stopped selling Mac software. WordPerfect 3.5e was released in a responsible way too (IIRC) by creating a special freeware license, which minimized the risk of losing the right to enforce the copyright in the future. Open source would've been even better, but there are many good reasons why businesses wouldn't want to do that where a product integrates third-party-licensed code (WordPerfect 3.5e for the Mac does, according to its "About" screen) or if the product is still being sold commercially on other platforms. The WordPerfect 3.5e approach won't satisfy open source fundamentalists, but it solves the problem you identify, and it does it with minimal legal risk. Keep it in mind and tell your lawyers or managers about it if you're ever faced with the question of what to do with your company's unsupported commercial software. (Again, not legal advice, random online ramblings, don't listen to me or anyone else who posts on internet fora.) |