Whither themes in an open source world?

Apple may talk a lot about how Mac OS X demonstrates their belief in the open-source business model, but its treatment of software developers who want to make “themes” available for the new operating system indicates that the company “actually wants to put a few more locks on its traditionally closed box,” InfoWorld columnist Ed Foster writes in his “The Gripe Line” opinion piece.

The concept of themes — ways to alter the look of the Mac operating system — appeared with the release of Mac OS 8.5. The Theme technology in the operating system’s Appearance Manager let you choose an overall look and feel for your Mac interface. In Mac OS 8.5, two themes — HiTech, and Gizmo – appeared in the beta version of the operating system update, but didn’t make the final cut. Only the Platinum theme shipped.

Apple had also revealed another beta theme called DrawingBoard, but never released it. And although it was once believed that Apple would release a way for creative sorts to create themes of their own, it never happened. But Apple’s Appearance Manager remained in the operating system so third parties began making their own themes.

“While the mechanism was implemented, Apple never officially released a theme or theme editor,” Michael Coyle, Webmaster at ResExcellence.com, a resource site for Mac users, told InfoWorld. “But over the years, hackers have decoded the theme file format, allowing for the creation of tools and themes. There are now more than 100 themes and several tools to aid in their creation available for free.”

Coyle, whose site includes an archive of themes created by various developers, added that Apple has been “very diligent” about policing the theme community.

“Posting the [Apple-created beta] themes would guarantee a letter from Apple legal, and rightfully so,” he told InfoWorld. “When the previews of the Mac OS X Aqua interface appeared, the first thing theme creators did was to copy the Aqua look and release it as a theme file for pre-Mac OS X systems. Apple clamped down on these hard — again, rightfully so. But Apple has never blocked the creation of entirely original themes that did not contain any Apple trademark images.”

However, over the past two years since the release of the banned Aqua themes, dozens of original themes have been released by artists without any letters from Apple. But as Coyle reports in a ResExcellence.com editorial, this policy changed in April. After ResExcellence added its first theme for the Mac OS X, Coyle received a letter from Apple’s attorneys lawyers. Ultimately, Apple was placated by a few modifications ResExcellence made that were unrelated to the Mac OS X theme, but others did not get off so easily, according to InfoWorld. For instance, Apple came down hard on MacThemes.

In April, Apple issued a cease and desist order against the Mac Themes Project (MTP) for creating a theme editor. Apple claimed the editor enables third parties to copy its copyrighted trademark themes by “improperly copying Apple’s copyrighted software code and graphic files.” Apple requested that the company cease from distributing the editor on any Web site or server under its control “including any hyperlink to other locations where the material may be available”. Apple also asked for written confirmation to this effect.

Apple accused MTP of infringing the Lanham Act that governs trademark law in the US. Apple said, “By allowing the public to access and download the editor, we believe that you are engaging in contributory infringement of Apple’s copyrights, trademarks, and trade dress in violation of the Lanham Act.”

Apple further accused MTP of unauthorized reverse-engineering of its software, stating that the specifications for the Mac operating systems in question have never been released. Reverse engineering of the Mac OS violates the software license agreement undertaken upon purchase. In an online letter MTP said that their project has been in existence since 1998, when Apple first introduced support for themes in its Mac OS 8.5 operating system and that they “would appreciate knowing how we suddenly came into non-compliance.” They also said their editor doesn’t contain any material originating from Apple.

“Further, the manner in which the editor is used is entirely up to the end user,” MTP says. “The possibility of inappropriate or criminal behavior resulting from misuse of our software isn’t our responsibility, much like Apple shouldn’t be held responsible for such behavior engendered by its software (such as a user illegally copying a CD with iTunes). If Apple becomes aware of someone violating its intellectual property rights, we encourage them to take that up with the individual responsible.”

MTP says they believe that their project actually provides added value to Apple by allowing its customers the freedom to construct an operating environment which is more suited to their tastes.

“We would like to remind Apple that as this is an open-source project, provided free of charge and for the sole benefit of Apple’s customers,” they continue. “We appreciate the need for Apple to protect it’s intellectual property, and have in the past refused to be associated with material which we believed violated that, but we are unwilling to abandon a project which is beneficial to thousands of fellow users without just cause.”

This is a bigger issue than our particular project, as it deals with the fundamental right of users to control their own computer, MTP says.

“When Apple was created in 1976, its founders would have been the ones writing this sort of software,” they add. “If the company has really changed so much that they’re willing to sue some of their biggest supporters in order to keep users from modifying what’s on their own computer then maybe it’s time to finally make the switch to Linux because apparently that’s where the spirit behind the founding of Apple Computer, Inc. has gone.”

The MTP, formerly known as the Allegro Themes Project (ATP), is a not-for-profit organization who works together over the Internet to create themes and theme-designing programs for the Mac OS.

“The Gripe Line” columnist, Ed Foster, apparently agrees with the folks at MTP. He says that Apple’s arguments about the MacThemes tool are “lame to say the least.” Any editing tool, including Apple’s, can be used to infringe on someone else’s intellectual property, he said. And although reverse engineering is a complex and controversial topic, it’s hard to see how figuring out the unencrypted theme file format wouldn’t be considered fair use, Foster writes.

“And why should Apple object now, given that this same ‘reverse engineering’ took place years ago when user-created themes first started showing up?” he says. “It’s certainly a strange move on the part of a company that has supposedly found the open-source religion. All this grousing leads us to the central question, Why on earth would Apple harass a small group of developers whose only sin seems to be the desire to make a contribution to the computing platform they love? The only explanation seems to be that, far from being afraid that theme developers will copy elements of the Mac user interface, somebody at Apple fears that the developers will create a better UI than Aqua. That hardly seems as if it would be a great tragedy to those who truly believe in an open-source approach, so I guess that somebody at Apple doesn’t.”