The Electronic Frontier Foundation has obtained a copy of the secretive Apple iPhone Developer Program license (link). They made a Freedom of Information Act request to NASA after NASA created an iPhone app. It was pretty ingenious really. But why go through all the trouble to get it? Why not just sign up or ask a friend who has? Well, part of the agreement is – the agreement is secret. I have many problems with the way Apple does business (as I type this on my MacBook), but they do have a right to do business as they see fit as long as it’s not unconscionable.
While this license is very one-sided (and what adhesion contract isn’t), there are two things that stand out to me as bordering on unconscionable. There may be more, but these two things bother me the most as a developer. First is the inability to sell your application elsewhere, even if Apple rejects it. The second is Apple’s willingness to hold the developer liable for any damages resulting from improper use while at the same time disclaiming any liability themselves.
I just finished Commercial Law last semester, so I feel the need to determine if the UCC is applicable or not. What you get from Apple is a software product. Software sales are usually governed by the UCC. However, you only get the software for the length of the license (1 year), unless you renew. This is more like a lease, which is also governed by the UCC. So I would think the UCC would apply. Ok, I feel better now.
The inability to sell your application on other markets, even if Apple rejects it, seems overly harsh. The only reason a developer would enter into this agreement is to develop an application for the iPhone or iPod Touch (from now on referred to collectively as ‘iPhone’). While there is only one Apple-approved method of selling apps for these products, Cydia is another application store that allows users of jailbroken iPhones to install software that is not Apple-approved. Cydia doesn’t have nearly the user base that Apple’s App Store has, but if a developer spent hundreds of hours writing an app only to have Apple reject it, I would imagine any user base looks better than none. In this license, Apple can reject an app for any or no reason. Even worse, they can just never approve nor reject an app (link – of course, that seems to have earned them an FCC investigation – more on Google later). The rejection part of the license is fine by me. Steve Jobs is a perfectionist. He doesn’t want apps on the App Store that he doesn’t like. And Jobs’ judgment on whether something is good or not has earned Apple billions. But what about a developer, who purchases this software for the sole purpose of writing an iPhone app, and who follows all of the development guidelines only to have his app rejected because it’s too cookie-cutter? Or to have it approved only for Apple to remove it months later because they changed their policy as to what is acceptable? He acted in good faith. He followed the rules. He relied on Apple as the sole retailer of his software and they rejected him based on their subjective feelings. But, according to this license, if the developer then tries to market his product on Cydia, Apple can obtain an injunction forcing them to stop. I’m no lawyer, but something about this seems unconscionable. No one would voluntarily pay money to have these restrictions imposed upon him. In my opinion, one of these terms would have to give. And I also believe that Apple feels the same way. The PdaNet app was rejected by Apple for inclusion in the App Store. None the less, it is available on Cydia. Apple isn’t exactly known for letting things slide. But they let PdnNet slide. Why? My conclusion is that they don’t really want to push this for fear of losing in court and word leaking out that these terms are unenforceable, but that’s just my opinion. Don’t get me wrong, I do not want to test it out with one of my applications. And I also think, that with the App Store’s large market share of downloaded mobile applications, 97.5% according to engadget, Apple may worry that an antitrust lawsuit would force them to accept more apps rather than just letting developers choose an alternate outlet. Should Jobs lose his grip over anything, it would most likely drive him insane. Next thing you know he would be living here and plotting to put frikin’ laser beams on sharks.
This post is getting pretty long. I’ll continue the next part tomorrow about the disclaimer portion and follow that up with my thoughts on Google and Apple.
Stephen Burch
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