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Comment by mrmaddog | Hacker News Reader

And here's a reply from Allan: https://news.layervault.com/stories/1992-layervault-whats-up...

Looks like the pitchforks are out over on HN.

It was pretty straightforward. Our reaction was "Cool, a flat UI theme" to "Wait, this looks familiar" to "Wait, are those our illustrations?".

I contacted the designmodo people over email, because that's the right way to handle this. The owner was being stubborn at first and refused to admit wrongdoing. At that point, I submitted the DMCA request. Eventually, he removed the most blatant icons which (in my eyes) is an admission of guilt.

They even managed to kinda lift the old DN icon :) http://imgur.com/3zoKuvH

If you have some intimiate knowledge of LayerVault's UI (which their designer apparently does), the similarities are a bit more than striking. That's not a huge issue until you release everything together - the icons, the colors, the UI elements, whatever.

We give a lot of our stuff away for free. We put a lot of our projects on cosmos.layervault.com, we write about interesting concepts we've come up with and include the code on our blog, whatever. This isn't about thinking we own "Flat Design" or being mad that there's some other design out there with a similar aesthetic.

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A really good way to coerce the pitchforks back into their sheds is to provide proof, especially when your DMCA is vague and posted on a ridiculously public platform.

Allan has done neither, and still hasn't done so in his tweets or this post over on his bubbly walled garden. A few simple side-by-side screenshots would have sufficed and put the court of public opinion squarely on his side. He may be completely in the right but his approach left him open to the "pitchforks" he's so dismissively bemoaning.

Not to mention, he even says himself that it was " ... the similarities are a bit more than striking. That's not a huge issue until you release everything together - the icons, the colors, the UI elements, whatever."

DMCA notices are to enforce against copyright infringement only, not as a tool for organizations to abuse in order to remove content which they think is "too similar", if this was the case, businesses would simply send their competition DMCA notices for being "too similar."

He also stated that because DesignModo "removed some icons" which LayerVault thought were the most blatantly infringing somehow implies guilt, as opposed to just someone trying to handle a dispute in a friendly manner.

I'm not a designer, and I haven't heard of LayerVault until now, however unless some very damning evidence is presented, I feel like every statement he's making is essentially digging a deeper grave.

EDIT: Having looked at the examples of the claimed infringement which are now surfacing, this is even further evidence that this is misuse of the DMCA. At most, this would be a civil / trademark dispute.

Striking Similarity is the standard. While the standard there is not crystal clear, you expect to hear things like, 'hey, they have the same bug we do!' and 'is that one of our comments?!!'.

Web folks these days have some strange ideas about copyright, particularly as it relates to an overall 'site feel'. Unfortunately, this 'site feel' is not a single work, in the same way that you couldn't successfully keep others from making art in your 'style'.

The proper way to get a monopoly on a 'feel' is with one of those ridiculous design patents. That'd be inexcusable, because these patents mean nothing except that you intend to spend a lot of time making lawsuits based on poorly examined, impossibly wide patents.

Here's the side by side comparison

Noun Project vs Layer Vault vs Flat UI

http://imgur.com/IH1osAD

If anyone notice other similar icons, I can update image with side by side comparison.

*Thanks to fellow HNers for the links to the images. I just stuck it all together side by side.

Edit: Updated with more samples.

Wow, that is considerably less egregious than I had imagined it would be.

From my initial reading, it sounded like images were outright copied, or copied and slightly altered. That is hardly the case in these examples.

If there aren't any stronger examples than these, then LayerVault wouldn't seem to have much of a basis for all this.

Wow, that's absolutely not plagiarism. Just generic concepts that have been interpreted similarly.

That may have divined inspiration from the LV icons, but that is in no way copied.

The prototypical talking head with speech bubble: http://www.guidebookgallery.org/pics/gui/installation/comple...

Three gears together doesn't seem to be that novel an idea either: http://thenounproject.com/noun/gears/#icon-No8949

As a graphic designer I was pre-disposed to siding with you against the pitchfork wielding pirates, but that's ridiculous. Bullshit takedown. Folded newspaper done in a minimalist style? Cogs? Face talking?

Is this a prank or art piece troll?

DMCA takedowns are basically form letters. There is no place to put the full explanation. Second, it was Git Hub that posted it publicly, not the DMCA issuer.

Yes, a full explanation would be nice too.

Though much is boilerplate, it's also irrelevant.

Here, we have a DMCA takedown notice that lacks two of the necessary elements: specific identification of the copyrighted work infringed as well as the infringing material.

It doesn't take much to meet these elements, which together would have also allayed public concerns. Barring that, however, it's not a valid notice. As a result, Github has no duty to act as the courts have explicitly affirmed.

Filing a DMCA request when you don't have a very solid copyright claim can be dangerous:

https://www.eff.org/press/archives/2004/10/15

I doubt this case will escalate to that, but at the very least I think I can safely say LayerVault is the loser here. I was only scarcely aware of LayerVault previously with no specific opinion and now after hearing the claims and seeing the supposed "proof" I have a negative opinion. And for what gain?

"Eventually, he removed the most blatant icons which (in my eyes) is an admission of guilt."

Sure, couldn't possibly be that he just wanted to do whatever it took to get you to leave him alone.

Here are the icons in question. http://i.imgur.com/xDDULcG.png

Also, the Flat-UI guy also copied other artists on dribbble. http://cl.ly/image/3Q181w0b1u2K

From http://drbl.in/eXkk, and http://drbl.in/gmsD

I'm not saying these are in copyright violation, merely examples he has copied prior work.

You're using a very weird definition of the word "copy." They are similar in that they depict a similar object from the same angle using a "flat" artistic style, but nobody is going to look at them side by side and mistake one for the other for even a second. This seems a bit like saying the iPhone is a copy of a slice of bread because they are both rectangular with few surface features. If you were asked to copy something in a drawing class and gave such an unrecognizable result, you'd likely get an F for failing to follow the instructions.

False analogy. Comparing design work to carbohydrates is a thin argument.

Here is the definition of copy.. "A thing made to be similar or identical to another."

The worked linked to was not original. It is similar and identical to other designers work.

Can you show the earlier work to which these are identical? If that is the case, I will retract what I said. But I don't think it's the case.

The links are in the original comment. Isn't that what we've been talking about?

There aren't any examples of identical artwork from the two sources that I can see. There are links such as http://cl.ly/image/3Q181w0b1u2K that show substantially different artwork side by side. Do you really mean to tell me you can't see any difference between those? The only substantial similarity in either of those is the placement of the pins of the map. Notable differences:

The clock:

* The FlatUI one has a drop shadow

* The length of both hands is different

* In the Dribbl artwork the hands are all the same size, while the FlatUI one has a "skinny" minute hand and an even skinnier second hand

* The colors are not at all similar

The map:

* The width is different

* The landmasses are completely different

* There is a different number of landmasses

* The colors are, again, quite different

* The Dribbl art is of a map with three folds, with both ends facing downwards so it forms an "M" shape, while the FlatUI one has four folds, with one end facing down and the other facing up

Beyond details inherent in the objects and art style (e.g. clocks are round and have hands), there are more differences than similarities. I would hardly call that "identical."

There are substantial similarities between the two. That it's not a 1 for 1 copy doesn't change the fact that they are substantially similar.

Case in point. The text below has more difference contained within it then the list of 9 specific difference you listed in your post. Taken individually, they prove that I did not copy your post, and that what is below is original.

However, any reasonable person would take a look at the two and find that they are very similar in terms of style, presentation, and intent. That they are copies. Identical, no, but copies nonetheless.

---

There aren't any examples of identical artwork from the two sources that I can see. There are links such as http://bit.ly/13IvNcq that show substantially different artwork side by side. Do you really mean to tell me you can't see any difference between those? The only substantial similarity in either of those is the placement of the pins of the map. Notable differences: The clock: * The FlatUI one has a drop shadow. * The length of both hands is different. * The colors are not at all similar. * In the Dribbl artwork the hands are all the same size, while the FlatUI one has a 'skinny' minute hand and a skinnier second hand.

The map: * The landmasses are different. * The width is different. * The colors are quite different. * There are a different number of landmasses. * The Dribbl art is of a map with three folds, with both ends facing downwards so it forms an 'M' shape, while the FlatUI one has four folds, with one end facing down and the other facing up.

Beyond details inherent in the objects and art style (e.g. clocks are round and have hands), there are more differences than similarities. I would hardly call that 'identical.'

No, that is much more similar. You changed a couple of words and punctuation and reordered a couple of paragraphs. Those are minor changes. It is substantially the same as what I wrote, with far more similarities than differences. The similarities are so overwhelming that without careful inspection, it could be mistaken for an exact textual copy of my comment with some of the paragraph breaks omitted. The same is not true of the graphics in question. A cursory glance at those will reveal obvious differences.

A better refutation would be to produce a well thought-out comparison of the two graphics that shows substantial similarity. I compared them as best I could and most of the artistic decisions seemed to be different between the two. If you have reached a different conclusion, I would love to see your analysis to compare.

If you haven't analyzed them in as much detail as I did and reached a different conclusion, I don't see why you felt it was intellectually honest to take a computerized copy of my comment and claim it as containing "more difference."

Would your same hypothetical "reasonable person" file a DMCA takedown notice if they are able to discern "substantial similarities" between their work and work that has been given away to the world on Github?

> There are substantial similarities between the two.

That's similarity, not copying. Copying is bit for bit or pixel for pixel identical.

>A thing made to be similar or identical to another.

So... couldn't we argue that LayerVault copied the design of actual clocks? Using your logic, the inventor of the wall clock would be just as justified sending LayerVault a take-down notice, right?

Layervault didn't design that clock. There is no logic, just the definition. You should look up "common knowledge" and "public domain."

If you recall apple is paying $21m to license the Swiss Railway clock design.

http://appleinsider.com/articles/12/11/10/apple-reportedly-p...

You do understand that none of the examples you have posted are in fact examples of copyright violation right?

Yes I didn't say they were in copyright violation.

Here is the definition of copy.. "A thing made to be similar or identical to another."

The worked linked to was not original. It is similar and identical to other designers work.

Right. The linked commit that is the subject of this thread is a DMCA takedown notice, which is a legal instrument designed to allow holders of copyrights to prevent their copyrighted materials from being distributed. Setting aside the merits of the DMCA, it has nothing to do with any definition of "copy" (yours, Oxford's, or Wikipedia's) at all. It is a remedy for copyright infrigement, which, again, is a legal term with a very specific definition[1]. No matter how creatively you define the word "copy", designmodo's actions simply are not equivalent to "copyright infringement" by any legal definition.

[1]http://www.law.cornell.edu/uscode/text/17/501

I'm not defending the DMCA. Did I mention it? I pointed out that DM copied other works I saw previously on dribbble. Adding information to the discussion, that spawned more threads.

"What exactly is the point you're trying to make?"

The point I am trying to make is that you are not adding information to the discussion. It's obvious upon inspection that a small portion of the graphical assets, and even the color scheme are similar. It is equally obvious that they are not identical. This thread is about the appropriateness of LayerVault abusing the DMCA's takedown provisions in order to stifle an open source project in response to perceived "similarities" that do not satisfy the standard for copyright infringement, the only situation in which it is appropriate (or legal, for that matter) to issue a DMCA takedown notice. The original point I was trying to make (and the point that basically everyone else responding to you is trying to make, that you don't seem to understand) is that this is true regardless of whether or not designmodo is "copying" their "style", "feel", or color palette, and that throwing around a DMCA takedown notice so casually is unacceptable behavior, regardless of how injured they feel.

> It's obvious upon inspection that a small portion of the graphical assets, as well as the overall color scheme are similar.

Thank you for agreeing with my original comment. night!

I have been trying to communicate a concept to you, specifically that copyright infringement is not the same as copying a design. I fear that I have failed. Perhaps you can't hear me, and don't want to. Maybe you understand what it is that I am trying to communicate, but lack the tools with which to articulate your dissent. Either way, it appears that you're now simply arguing for the sake of arguing instead of responding to what I'm actually trying to say. As fun as that sounds, I think I'll pass.

At this point, I'd like to refer you to pg's essay on how to disagree[1]. You might want to pay attention to sections 4 and 5 in his hierarchy of dissent.

[1] http://www.paulgraham.com/disagree.html

Don't mind Alex, he made a fuss about the guy on the right jacking his design on the left a few months ago - http://cl.ly/image/1g3q372r1c2F/shot.jpg. Information designers would have a chuckle at that.

Seriously?

It's a clock - how many unique ways are there to design it? It's a folded up map with pins in it.

He moved the hour/minutes hands, changed the colors and shadows, used different continents in the map.

Seriously?

Apple paid $21 million for a clock design after first adopting your attitude: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202...

The clock in question, aside from being an exact copy, was an example of a trademark infringement not copyright infringement. It's very different. In fact trademarks must be defended against infringement or they can be considered void.

http://en.wikipedia.org/wiki/Trademark#Maintaining_rights

If he had copied, even in just a similar way, LayerVault's logo to use as an icon (and assuming LV trademarked it) then this discussion would be pretty different.

Apple's clock was an exact copy of the swiss railway clock. In this case, the rounded corners are different, the color is different, the shadow is different, the lengths of the lines are different.

Apple's wasn't an exact copy either. (The Swiss railway clock design was nicer.)

There were slight differences in hand lengths, removal of the logo (obviously), and stroke widths.

Apple's clock design was indistinguishable from the original. This is not.

This is the essence of what is wrong with copyright law: "Apple paid $21 million for a clock design."

I believe in the value and importance of design, but the money/value ratio of design IP has gotten out of hand.

Did you read the article? They were sued over trademark infringement. Trademark has nothing to do with copyright or the DMCA.

Here are a thousand other ways to design a clock. http://dribbble.com/search?q=clock+icon

What exactly is the point you're trying to make?

Swanson asked: It's a clock - how many unique ways are there to design it?

Thanks, I figured that part out. I was more replying to this response in the context of the grandparent, which made little sense to me at first, and even less sense when he edited it in some strange attempt to distinguish between "copying", which he seems to be accusing the Flat-UI creator of, and "copyright violation", the legal prerequisite for filing a DMCA takedown, which is what the rest of the comments on this post seem to be discussing.

Try adding "flat" to that search criteria, then how many ways do you get?

s/copied/used as inspiration/

Copyright means you literally copied the design. Are you maybe confusing copyright and trademark? With trademark, you can get in trouble for creating brand confusion, which has a more to do with the look and feel than the actual copy.

Copyright also grants the exclusive right to create derivative works. Using another work as the basis of your own, even with zero direct copying, can be an infringement of that right. I doubt that happened here, and proving it would be near-impossible, but we should be cognizant of what copyright actually is.

All it manages to show is that as a designer he is not very original and maybe influenced a bit too much about what he is inspired by. But this in itself is not a copyright violation.

The analog clock designs with the red seconds hand are all simplified versions of they style popularized by the swiss railway clock: https://www.google.com/search?q=swiss+railway+clock that can be seen in many clock products: https://www.google.com/search?q=clock+red+second+hand&hl...

Deleted comment

I am not affiliated with layervault, none of the work linked is mine.

This isn't at all related to my comment. Did you reply to the wrong one?

The color schemes of LayerVault and FlatUI are also almost identical. http://pixxel.co/feed/layervault-issues-dmca-takedown

Let's add some google colors in this comparison http://cl.ly/NO8C

Your point being…?

If it were ONLY the colors, or ONLY the look and feel of the widgets (which, come on, are almost exactly the same as well), or ONLY the icons… different story entirely. But it's the SUM of all of those things.

> But it's the SUM of all of those things.

This is not how copyright works.

I'm less concerned with the allegations of copyright trolling, etc (IANAL; I don't really know whether or not this qualifies for a DMCA takedown notice, although I suspect it does not) and more with the general opinion among commentators here that this was anything OTHER than a blatant ripoff of LayerVault's UI.

To me it seems like more of a trademark/trade dress issue, which as far as I know doesn't fall under copyright, but it's extremely silly to say that the resemblance between FlatUI and LayerVault isn't uncanny.

Ripping off someone's design isn't grounds for a DMCA takedown notice unless you actually violate copyright(the legal definition, not some hand wavy "I did it first" definition). If LV had filed a trademark claim no one would be complaining b/c A) they would definitely lose(there's no issue of brand confusion here) and B) the guy would get to decide himself whether he wanted to risk leaving his stuff online (instead of github deciding for him).

One of problems with copyright is that the statute basically says you can't copy original works under certain conditions, but it doesn't define what constitutes copying. As far as I can figure out (IANAL) only a judge or jury can make that determination. You can try to figure out what has been considered copying by reading through other cases but it is not definitive until declared so by a court.

That's not a copyright violation.

I don't think it's a copyright issue, but between the colors, illustrations (some of which almost match exactly), and the appearance of the widgets, you could make a very strong case for trademark/trade dress violation.

Trademark and trade dress have nothing to do with a DMCA takedown though.

And besides, establishing an infringement of trademark and that it was then infringed will require an absolute mountain of cash and lawyers and time. I'm assuming they have nothing relating to the IP they're annoyed about on paper and so they'd need to show that they 'owned' it in equity. They'd almost certainly go bankrupt before they have a chance of winning a case in court.

(IANAL... yet)

> I don't think it's a copyright issue, but between the colors

The only thing you can file a DMCA takedown notice for is a copyright issue. That's it. By filing a DMCA takedown notice you are asserting there is a 'copyright issue'.

As others have pointed out, Allan's "reply" is quite the non-reply with the lack of concrete proof and evidence of the supposed "copyright infringement". What I personally found interesting, however, was Allan's initial reaction to the Flat UI Kit on Twitter: "Has nothing to do with us. Very distasteful."[1]

Later on, after the pitchforks had showed up, he tweeted the following: "It's neat that someone made a flat ui kit"[2]

That tune sure changed quickly!

[1] https://twitter.com/Allan/status/308937462221254657

[2] https://twitter.com/Allan/status/309346292902014976

Sounds like a non-reply reply lacking specific/concrete examples of what was infringed that they needed to issue a DMCA takedown.

LayerVault needs to illustrate their case with clear-cut examples or else they are coming across as ye olde IP Troll and thus deserving the collective pitchfork stabbing that DMCA hammer wielding requires.

Did you realize that you were doing something illegal (and seriously abusive) by responding to this with a DMCA takedown?

The 'old DN icon' ... http://thenounproject.com/noun/newspaper/#icon-No6346

If it's the best example he found to justify the takedown notice, it was really not a smart move...

Huh? Not the same.

Designer News icon: http://imgur.com/a/H3zlP

Noun Project: http://thenounproject.com/noun/newspaper/#icon-No6346

Flat-UI's newspaper icon: http://i.imgur.com/9TKbKNl.png

If anything, the Designer News icon is much more similar to the Noun Project's.

All of these icons are similar to innumerable newspaper icons, including several at the Noun Project alone.

I agree.

That's the point…

'He kinda copied it, so we slapped him with DMCA. We kinda copied a free icon, but it's okay.'

Did he "kinda" copy it, or is it a copy? The two icons we're comparing here are not copies. They are markedly dissimilar.

Well, LV said 'They even managed to kinda lift the old DN icon :)'

Don't know if 'kinda' is being used to soften the accusation or it's not a straight up copy - I can't see the icon they are talking about.

http://designmodo.github.com/Flat-UI/

Edit: Found them and slapped them together for side by side comparison http://imgur.com/rli5IVU

They've been posted upthread, and they aren't copies.

Now I don't know what icon is in the Flat UI pack, but to cite the DMCA's icon as being 'kinda lifted' from theirs[1] when it is so similar to a number of CC-licenced icons on The Noun Project seems like a poor argument in my eyes.

[1] http://imgur.com/3zoKuvH

If the Flat UI icon is as different from the Noun Project icon as DN's is, Alan at LayerVault will be equally wrong.

They just aren't the same icon. The visual metaphor all these icons rely on is decades old. It's the details that matter.

I think you are hitting the nail on the head - with styles/aesthetic arguments like this, when is it a copy? Adding a leaf of paper into the icon? Colouring it in? Adding a line of faux text below the faux image? Which came first? Which was the origin?

My only point was that when you are getting hammered by people and the evidence you provide is that, it looks poorly thought out.

What evidence? What am I missing? Does someone have a link to the Flat UI icon he's referring to? The impression I got from his message is, Flat UI included a verbatim copy of the DN icon.

That's the impression he wants you to get, but you are being deceived by his misleading wording. Flat-UI's newspaper icon is different than the DN icon.

I see that now. Thanks!

"... they even managed to kinda lift the old DN icon ..."

I think you misunderstand. I'm not arguing as to whether the Flat UI guys copied them or not, but like the larger argument, the icon he is putting forward as copied work is itself conceptually very similar to other existing icon work(s). As a designer I would be more than a little miffed if that design appeared if I had created the Noun Project's version and not openly licensed it.

If that is the case, it somewhat undermines the claim that the assets are fully owned by them or even that ownership can be so quickly claimed.

Similarity is completely irrelevant. If we independently arrive at the same original work then that is not copyright violation. That's not what copyright is about. We then each hold the copyright of our respective works, even if they're completely identical (in practice it will probably be hard to proof that you didn't just copy the other work if they're really identical).

IANAL, but that's what I was told by a law student.

Here's the comparisons.

http://news.ycombinator.com/item?id=5332635

It's certainly not a verbatim copy or even close.

Agree! Thanks.

Note that the matter of the "newspaper" icon is not the reason for the DMCA request, but a sidenote.

Yeah, that's a pretty strange claim. Same concept, but completely different details.

There might be some ground for trademark infringement if the original icon was important, but no way is that a copyright issue.

What he's claiming is not the perfect copy of the shape, but the style. It's a clear "copy" too, very very similar. In the end, if you change a pixel from that you can make a "not the same" icon, don't you think?

We can discuss on how many differences but it will end on nothing. I can express that, 2 o 3 differences are not enough to claim "different" and you can claim than 1 will not be enough too.

To me, they're clearly wrong. But if the guy copied the art and pasted it, that's another story.

Wow, I never looked at DN before and I don't think I will start now. In that thread they come across as thuggish scumbags who don't care about evidence and believe that anyone should be able to use the legal system to bulldoze competitors doing "similar" work.

Also, this Allan guy whoever he is, is dripping with self-importance.

It's pretty obvious that these icons are not copies of the originals. They are very similar, but clearly independently produced. It's a bit tenuous to apply copyright law here. Copyright is for the act of copying information, not style.

Trademarks can legally protect a particular style, but trademark law isn't enforced through DMCA requests.

Who are LayerVault's lawyers? Seems like bad legal advice to me...

I doubt they sought any. Presumably any half decent lawyer would tell them that there's absolutely no breach of copyright.

I’m sorry, but that doesn’t look like a copyright infringement to me. I cannot see any artwork that was directly lifted. The icons may be superficially similar but they are no copies.

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