In my previous post, I discussed Apple’s iPhone Developer license agreement which was obtained by the Electronic Frontier Foundation (EFF) and the effects that it has on developers who have had their app rejected by Apple. Now I turn to the other part of the license agreement that really bothers me: Apple holding developers liable for any breach while simultaneously disclaiming any liability for its own actions.
Section 2.6 of the license agreement is entitled “No Other Permitted Uses.” Before I discuss some of these prohibited uses, let’s look at the legal repercussions for breaching this section. “If You breach any of the foregoing restrictions, You may be subject to prosecution and damages.” Good to know. Be sure to notice that: 1) there is no limit to the damages and 2) elsewhere in the contract they reserve the right to seek an injunction. So what can you do that is so awful that Apple will seek to sue and enjoin you? Well, if a developer owns a computer from Pystar, a company that used to sell computers that run the Mac OS (OS X), he wouldn’t want Apple to find out. In fact, anyone who tries to run this software on any non-Apple branded computer is in breach of this agreement. Basically, if a developer wants to write software for Apple’s iPhone, then he must buy and use an Apple computer as well. Or Apple will sue you. It’s the Apple way. For non-developers, I don’t know if I can convey the absurdity of this. You develop a piece of software. You submit that completed application to Apple. As long as it is compiled with the same OS and processor, the company that packaged that hardware makes absolutely no difference. But Apple knows that the iPhone has a huge app market and developers want in. So why not get the developers to buy a Mac along with an iPhone if they want the privilege to work with Apple? To be fair, the rest of the other prohibited uses don’t seem as arbitrary or onerous as this one. But let me be clear- if you break any of these provisions you are subject to “prosecution and damages.”
Is Apple really so wrong? It is Apple’s software, after all. Why can’t it control the terms of the sale? It can, to an extent. But Section 14 – “Limitation of Liability” seems a little over the top considering the liability that developers can face:
“IN NO EVENT WILL APPLE BE LIABLE FOR [pretty much anything you can think of] NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
I read this a few times and each time the failure of essential purpose clause makes me laugh. For those who don’t know, “failure of essential purpose” relates to warranties. For example, imagine if someone buys a new car with a 50,000 mile power-train warranty. Then, 10 miles into the ownership of the car, something on the power-train breaks. She then takes it to a dealer who agrees that, yes, the car is covered under warranty – BUT only up to $10. This warranty suffers from a failure of essential purpose. But at least it covers $10. Apple basically says that it can even breach the contract and you have no claim under contract law for any amount. I still am not sure what warranty it thinks could fail at its essential purpose, as it warrants nothing. But the best part is the next line:
“IN NO EVENT SHALL APPLE’S TOTAL LIABILITY TO YOU UNDER THIS
AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE
LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY
If Apple actually believed their disclaimer to be valid, this clause would be pointless. But just in case, it goes ahead and limits its liability to $50. Liability for what you ask? Beats me. It just stated it isn’t liable for anything.
What bothers me the most about this is the disparity of liability between the parties (Apple and the potential developer). Not too long ago, there was a discussion about App Store apps ‘racing to the bottom’, in regards to most of the top selling apps costing only $.99. But how many independent developers want to invest lots of time and money developing a large, complex app only to be at Apple’s mercy when it comes to being accepted at the App Store and the potential target of Apple’s lawyers if the attempt to sell it elsewhere. They have no recourse with Apple and they can’t sell it anywhere else. They just have to just suck up the losses.
I could rant about this for hours. If I taught a Commercial Law (UCC) course, these two sections of the license agreement would be the subject of my entire exam. I would image most students would have a hard time discussing all of the legal implications in the three hours allotted for the exam. But that’s enough for now. Monday I will continue the discussion with my thoughts on Apple and Google.
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