Apple IP infringement policy woes (aka where is osu!stream?!)
13 Jan 2014
First of all, happy new year everyone! I hope you are having a great start to 2014. It’s been a bit of a rocky start for me, and due to a number of reasons my productivity (measured in output on the visible spectrum) has been at an all-time low. While a lot of you that follow me closely will already know what I am about to convey, I write this with the hope that when I find a resolution, it will be helpful to someone out there that encounters a similar situation.
Let’s return to December 2012, six months after osu!stream’s July release. With the help of a small team we had released a couple of new song packs, accompanied by a 1.1 release fixing many bugs and adding a number of graphical enhancements and UI improvements. Out of the blue, I received an email from the somewhat mysterious email@example.com address.
Date: 12th December, 2012 (10:57) From: App Store Notices <firstname.lastname@example.org> To: Dean Herbert <email@example.com> Dear Dean, **Please include APP23992 in the subject line of any future correspondence on this matter.** On 11/26/2012, we received a notice from Alek Nils that Alek Nils believes the app listed below infringes their intellectual property rights. In particular, Alek Nils believes you are infringing their copyright. Please see their comments below. Developer: ppy Provider: Dean Herbert|1357346609 App Title: osu!stream Apple ID: 436952197 Comments from Complainant: Stolen Graphics, I already sent you guys 3 emails with all the links, so I guess u have those. Read through the email. My Email add.: Alek112@hotmail.com - You can reach Alek Nils through Alek Nils (email: Alek112@hotmail.com), copied on this email. We look forward to receiving written assurance that your application does not infringe Alek Nils's rights, or that the parties are taking steps to promptly resolve the matter. Please keep us apprised of your progress. Should you choose to remove your application, (for example, while you make any necessary changes) use the steps provided below.
Having created the majority of the game graphics myself, I was astounded at what I was reading. The particular graphic, while not stated specifically in this initial communication is the “spinner circle”.
The accusation made by the complainant was quite preposterous on many levels, so let’s briefly address that and get it out of the way.
- The design is based off the Xi-Style skin for osu! PC. This was made by the skilled XiaoUnlimited (now Xiao) in 2008, and can be seen here. Before using this design in osu!stream, I received permission from Xiao (and he can be seen listed in the game credits since day one). While I do not have my original correspondence with Xiao, I did contact him recently to get a statement showing his approval.
- While I did borrow Xiao’s spiral motif, the centre and outer circle portions are straight from the osu! default skin, which was 100% my own work.
- The design cited as being “stolen” has since been recreated from scratch twice, in order to support devices with higher resolutions. The latest version was made in POV-Ray, and source is available here, courtesy of mm201.
- The complainant “Alek Nils” – actually Alek Nilsen – is a third party who created a number of “compilation” skins using other skinners’ graphics – often without their permission. He is claiming to have created a graphic that he in no way has any rights to.
Hopefully by now you can agree that the claim is fraudulent, and we can move on.
Initially I followed up as per Apple’s loose procedure to try and reach a resolution, but it was very obvious that the complainant’s idea of a ‘resolution’ was nothing short of having the app being removed from the App Store. The conversation continued for months back and forth with the AppStoreNotices department as I attempted to explain this to them. At no point did they offer any alternate solutions or advice on how to resolve the dispute. They also took around one month for each reply, to a degree of accuracy that suggested it was a predetermined period for these kind of follow-ups.
Let me add that we did at multiple points try and resolve the issue directly with Alek. A full transcript of the email conversation can be found here.
During this time, the complainant – obviously unhappy with Apple doing nothing to inflict harm on me – took to spamming my blog and email accounts, launching denial-of-service attacks on osu! and other malicious behaviour. This was a significant time sink, but as per my usual strategy I blocked and ignored this as much as possible. I also avoided making any further direct contact with the complainant.
Travel forward to the 4th of January 2014, when Apple sent me a sudden notice that they are removing osu!stream from the App Store. Again, they offer no method of resolution and tell me to talk with the complainant directly.
Date: 4th January, 2014 (04:56) From: App Store Notices <firstname.lastname@example.org> To: email@example.com Dear Dean, We regret that the dispute regarding the app listed below could not be resolved amicably between the parties. We have removed your application from the App Store. For any questions relating to this matter, please contact Alek Nils directly. For any technical questions, please contact iTunes Connect: www.apple.com/itunes/go/itunesconnect/contactus. Developer: ppy Provider: Dean Herbert|1357346609 App Title: osu!stream Apple ID: 436952197 - Sincerely, Victoria
I could probably end this post here and leave you in absolute shock at the appalling manner in which these cases are handled, but let’s persevere: what could I have done differently to resolve this issue without the app being removed?
Probably not much (but I’m open to suggestions).
- As per the last two years, I should have continued to respond to Apple. I was very busy during the period when I got the escalation email – and on top of that it was from a no-reply address – so I did not send my usual under-five-minute response to Apple. They may have assumed I was ignoring their email as a result (as silly as this sounds).
- I should have turned to the legal system sooner. I naively believed that due to the lack of evidence supporting this claim, it would never result in anything like this. In reflection, this assumption was a bad one to make.
The current things I have done to try and resolve this issue, with no progress as of yet:
- Replied several times to AppStoreNotices via email, giving a full history and evidence of the fraudulent nature of the claim.
- Contacted Apple Developer Support via phone multiple times. Was told they can only contact AppStoreNotices by email via the same process I take, and therefore would not be of any help.
- Contacted iTunes Connect support. See above.
- Asked friends who have contacts high up in Apple. They are powerless across country/department borders and therefore cannot help.
- Sent a plea to Tim Cook directly, in a hope he will correct the wrong which has been done.
- Submitted a new build to the App Store stating the issue was resolved. Is stuck in perpetual “In Review” status.
- Contacted a lawyer. Told that this should be happening under DMCA law but isn’t. Very hard to follow up as Apple gives no detail as to their terms or process. I read through all the documents available on Apple’s site but none mention the full process for IP infringements. The only reference anywhere is the submission form for these complaints. Please note that App Store complaints differ from all standard copyright issues, which are filed under DMCA (why?!).
I will update this post as I work towards a resolution. I am open to any advice; please leave a comment or if you wish, contact me privately at firstname.lastname@example.org. Thanks to everyone that has already shown their support in many ways.
Finally, an apology to those which are unable to download osu!stream, restore their purchased songs, purchase new song packs, or restore the app itself from a backup or on to a new device. I will try my best to get things straight again, and hopefully have a few updates to the app itself which will make up for lost time.