Apple is using an unexpected argument to protest its Colombian ban, claiming its human rights have been violated.
Apple and Ericsson are locked in a legal battle over 5G patents. Apple stopped paying Ericsson’s licensing fees, claiming the company’s patents should fall under friendly, reasonable, and non-discriminatory (FRAND) terms. Ericsson won a major victory in Colombia, with the country banning Apple’s 5G iPhones and iPads, despite the country not having a 5G network.
Apple is now resorting to an unusual argument, saying that the Colombian ruling violates its human rights, according to FOSS Patents. Apple claims the ruling violates its rights under Article 8 of the Universal Declaration of Human Rights:
“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
Apple is seeking emergency relief from:
- Its Colombian law firm (OlarteMoure)
- Carlos R. Olarte (a name partner of that firm and Ericsson’s lead counsel in the Colombian case)
- Civil Court No. 43 of the Bogotá Circuit
Apple filed an emergency motion in the Eastern District of Texas in an effort to recoup its losses in Colombia, but Judge Rodney S. Gilstrap had a stark warning (via FOSS Patents) for the iPhone maker.
“Emergency motions are to be filed only in truly extenuating circumstances and should not be used as a means to secure an expedited briefing schedule and hearing before the Court,” Judge Gilstrap writes, and “finds that Apple has misused and misapplied the rules for emergency motion practice in this Court.”
Judge Gilstrap put Apple “on notice that further such conduct will warrant, and likely result in, sanctions against it.”
What’s more, Judge Gilstrap declined to interfere in the Colombian court’s decision.
“Here, Apple invites this Court to inject itself into an ongoing proceeding in Colombia. The Court declines Apple’s invitation,” reads his ruling.
Apple Is Running the Epic Games Playbook
The fact remains that Apple intentionally stopped paying Ericsson’s licensing fees because it felt they were too expensive and then cried foul when it suffered a legal and financial setback as a result. The situation is very similar to the one Epic Games created when it decided to circumvent Apple’s App Store commission and then sued over the financial losses it suffered when Apple removed Fortnite from the App Store.
As the judge in that case commented, a company can’t knowingly take action that is contrary to applicable agreements and/or laws and then cry foul and ask for emergency relief when it suffers the results of its own actions.
“In my view you cannot have irreparable harm when you create a harm yourself,” U.S. District Judge Yvonne Gonzalez Rogers said in that case.
Apple, of all companies, should no better after having the very same tactic used against it by Epic. Just as the judge in that case admonished Epic, Apple should have abided by the agreement while taking their case to court. Had they won, they could have been awarded damages.
Instead, because of the way it has handled the case, Apple comes across as looking like a bully that is grasping for straws when it hasn’t been able to get its way.