Food fight! Palm and Apple out of sync!

Palm adds back iTunes syncing to Pre; Will Apple retaliate?

Palm Inc.'s decision to re-enable syncing to iTunes in its new Web OS update has an element of Palm taunting Apple Inc.

But could it lead to a legal battle? At least one expert in intellectual property rights thinks so.

"Palm has a fairly large market share and is doing this [sync to iTunes] so visibly, which leads me to believe Apple has no choice but to retaliate, probably through litigation," said Ivan Zatkovich, an engineer who provides consulting help to attorneys involved in intellectual property disputes. He works for EComp Consultants in Tampa, Fla., and has been closely watching the tussle between Apple and Palm over the sync from the iTunes media player to the WebOS and Palm Pre.

The iTunes media player is "valuable property" to Apple, Zatkovich added, "I understand why Apple is protecting it." Apple also has a fairly long history of fighting to protect its IP that dates back to its Macintosh computer in the 1980s and its involvement in digital rights management battles with the creation of the iPod this decade, he said.

Still, Zatkovich said that if Apple doesn't take more steps to protect iTunes sync through its intellectual property rights, then "Palm is perfectly within its rights to provide the [iTunes sync] functionality as well," Zatkovich added.

If Apple doesn't take a concrete step to stop Palm, it is also tacitly inviting other companies to do what Palm has done by emulating the iTunes player capability, Zatkovich said. Even though there are other media players on the market, iTunes is highly successful and syncing with iTunes is probably considered lucrative to Palm, he added. "If Palm gets away with it, it invites others," he said.

But Tal Lavian, an industrial fellow at the University of California at Berkeley who holds a Ph.D in computer science, said he was not sure that Apple could take legal action against Palm over the sync capability, partly because Palm hasn't disrupted Apple's software, only its own software.

"I'm not sure Apple can take legal action against Palm, and I'm not sure it's in their best interest to do so," he said in an interview. "What type of legal action would they take and would there be any validity to it? Palm is not changing anything in software from Apple. It's just the Pre. Apple doesn't have the option to sue over digital rights management or copyright. Maybe there would be a lawsuit if Palm took something from Apple or changed or modified Apple software, but Palm didn't do any of this."

Apple's alternative seems to be to delay the Palm and its WebOS, Lavian said, since the Pre has a multithreaded touchscreen device that poses a threat to the iPhone. "Apple and Palm are going head to head and Apple is doing whatever it can to delay Pre's success," he said.

Palm so far has seemed to enjoy its exploits into syncing with iTunes, with John Traynor of Palm blogging today of "one more thing" when he announced that WebOS 1.1 re-enables iTunes, a jab at Apple CEO Steve Jobs' who uses the phrase at Apple events.

Zatkovich said that tone could backfire, however. "I'd say that was pretty cheeky," he said. Apple wouldn't comment about the latest WebOS update, and Palm didn't comment beyond the blog post.

Apple has issued some mild warnings, although not directly at Palm, but experts aren't sure those will be effective. On June 16, Apple issued an iTunes support document that said it does "not provide support" for non-Apple hardware that attempts to use iTunes for synchronizing content from a Mac or Windows PC.

"Apple is aware that some third-parties claim that their digital media players are able to sync with Apple software," the support document reads. "However, Apple does not provide support for, or test for compatibility with, non-Apple digital media players and, because software changes over time, newer versions of Apple's iTunes software may no longer provide syncing functionality with non-Apple digital media players."

Palm seems willing to continue jailbreaking the iTunes software to enable WebOS to sync, since it has done so twice, said Jack Gold, an analyst at J. Gold Associates. "This is going to go back and forth, and I think it will go on a long time," he said. "As long as Palm thinks it's critical to have [iTunes sync], they will continue to get around Apple blocking it ... At some point will Apple sue Palm? I don't know if they will go that far."

Gold said it might be more likely that smart engineers at Apple will write code that effectively breaks the link that Palm, and potentially others, have made to iTunes.

Gold also questioned how much of a counterattack Palm could withstand from Apple. "I really don't know if iTunes is a big deal for the Pre. How many are buying the Pre for iTunes sync only?"

Some observers have commented on Palm-related forums that the issue is not a question of intellectual property being stolen, since iTunes is a media player and is not content which users have properly paid to own and gain access to. If this back and forth continues, where Palm re-enables the sync each time Apple disables it, some commenters say they will just stick with the last version that worked for them.

On the EverythingPre forum, some Pre users congratulated Palm for its update with iTunes sync re-enabled after Apple shut it down in its last iTunes update.

"You have to give Palm credit for addressing the iTunes issue, if you use it or not," one commenter said. "It shows that Palm was ahead of the game."

But one commenter, masimons, warned that Apple's next version of iTunes could "permanently" disable sync to the Pre by wiping all the data off the Pre.

Copyright © 2009 IDG Communications, Inc.

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