iPhone Developer Agreement Revealed by Electronic Frontier Foundation

[Erwin-Br]

Why not? The EU interferes with contracts between two willing parties?

Only if one of these parties is abusing its position in the market. Since there are many options for consumers and developers to do business with, there should be no problem.

If Apple would have had a legal monopoly (different from an economic monopoly!) things would be different. (which MS found out a few years ago)

The Euro commissioner who deals with these cases was a Dutch woman who recently got another post, though. I wonder if the new one is of the same caliber. I have my doubts, because Neelie Kroes is tough as nails.

 

[Mcgargle]

It's a non-profit and only interested in a healthy and free digital world.

Sorry to post two comments in quick succession, but I just saw this one: Let us be clear. The EFF is only interested in their specific and highly detailed definition of a healthy and free whatever you said with those words.

I'm absolutely not trying to espouse a conspiracy theory here, but this is exactly what corporate communications people get paid to do: get the public to beg the question. The EFF is interested in their idea of health and freedom, which may or may not jive with any individual person's ideas of health and freedom.

I'm not saying they're bad people. From what I've read, they do some pretty good legal defense work from time to time. But it's really important that we not settle into this idea that the EFF is all sunshine and rainbows. They're people to, with their own biases and agendas, and it's totally okay to disagree with one or more of their premises.

 

[strike1555]

The EFF was able to work around this constraint by petitioning NASA, a U.S. government agency and developer of an official NASA iPhone application, under a Freedom of Information Act request. NASA responded with a copy of the 28-page March 2009 version of the agreement.

Say what you will about the EFF. This was ingenious.

 

[Boghog]

EFF's claims are ABSOLUTE BS. As a lawyer that has studied and worked with antitrust issues, Apple's case for keeping tight reins on ITS store is totally legitimate.

Why are so many people so bent on pointing out Apple's actions as legally defensible whenever anyone criticizes them. Of course they are.
a) They employ hundreds of very clever lawyers.
b) If it wasn't legitimate it would be challenged (sucessfully) in court and that would be the end of it.
So get over it: We're not a body well suited to discuss the legality of Apple's actions.
What we can discuss - and so many posters just choose to ignore that aspect - is whether we deem it morally (or strategically) right what they do. So please spare us with all those "they can do what they want, it's their system" mantras and realize that Apple and many other companies are abusing their power. If the law doesn't stop them doing it that doesn't mean that everything is good as it is.

 

[GeekLawyer]

Like all conspiracy theories, this one is non-falsifiable. What conceivable action or declaration could a non-profit make that would convince you that it was not all about getting their names in the press, or making money?

So now I'm propounding a conspiracy theory for insisting that donor-run organizations find it necessary to fund-raise? Hardly the case.

I assume that the fact that the EFF and ACLU and Greenpeace have hundreds of lawyers who could be making 10 times as much money doing corporate law proves nothing. And it proves nothing that working for these companies regularly gets you vilified by the press far more than you get lauded. And that these people regularly speak passionately about the issues they spend every day advocating, and have a network of highly consistent beliefs that they have worked out in great detail.

As a lawyer myself who has eschewed the for-profit world to work on important social causes, I don't doubt even a little bit the conviction of those at EFF or the ACLU. No, in fact, as someone doing similar work, I feel particularly justified in calling this like I have seen it. By bringing up the fact that Greenpeace has raised money by going after Apple, I don't think I minimize the legitimate aims of the organization. I merely point out that people should be aware of the various reasons that organizations make these fights public.

No, it's just about highly educated people making bizarrely round-about decisions to make a few scraps of dollars and advance inexplicably anti-Apple agendas.

If your nonprofit can get into the headlines anytime Apple is mentioned, you've done well for your cause. There's a reason those few sad-sack "protesters" from EFF show up to any Apple event they can. Railing against Apple is money in the bank to work on their meritorious "non-sexy" cases and issues. I don't blame them. Again, I'm just pointing out that there are other motives at work here than pure egalitarianism and love of the poor coder. It's not anti-Apple by definition. But it's convenient when it can be.

 

[cmaier]

Why are so many people so bent on pointing out Apple's actions as legally defensible whenever anyone criticizes them. Of course they are.
a) They employ hundreds of very clever lawyers.
b) If it wasn't legitimate it would be challenged (sucessfully) in court and that would be the end of it.
So get over it: We're not a body well suited to discuss the legality of Apple's actions.
What we can discuss - and so many posters just choose to ignore that aspect - is whether we deem it morally (or strategically) right what they do. So please spare us with all those "they can do what they want, it's their system" mantras and realize that Apple and many other companies are abusing their power. If the law doesn't stop them doing it that doesn't mean that everything is good as it is.

To be fair, at least three lawyers have posted on this thread, and there's nothing lawyers love more than criticizing other lawyers

 

[50548]

Only if one of these parties is abusing its position in the market. Since there are many options for consumers and developers to do business with, there should be no problem.

If Apple would have had a legal monopoly (different from an economic monopoly!) things would be different. (which MS found out a few years ago)

I don't know if you mean something else, but MS has never been in a situation of legal or State-granted monopoly...

 

[MagnusVonMagnum]

Apple is able to get away with a lot of things because they have NO COMPETITION for their products in terms of either the software and its distribution (for the iPhone/iPad/iPod Touch market) and hardware (for the Mac market). In other words, they have you over a barrel if you want to use one of their products. They tie the hardware and software together in such a way with their licenses as to extort money out of developers (give us 30% of your profits or go home) or sue competing hardware companies out of business (e.g. Psystar). If you have NO COMPETITION within your particular market place, then you can charge as much as people will bear with no competition or oversight to control costs. It's kind of like the health care industry. Yes, there are OTHER insurance companies out there, but they're not actually doing much competing with each other in those markets so the customer gets the SHAFT. In the case of insurance, it's a lack of competition within given markets (like states) and in Apple's case, it's a matter of having the best smart phone, but leveraging that to screw software developers into bad license agreements. They are two separate markets (hardware and software) so this SHOULD be illegal under existing anti-trust legislation which only requires proof of anti-competitive practices where products are being tied artificially together by contract, but apparently the Justice Department has no interest in enforcing the law (big surprise given they let the entire country go into a recession due to a total lack of oversight of the credit and banking industries).

Welcome to the United Corporations of America and the end of your Constitutional rights as a citizen (well more like they've given corporations the same rights as a human being so in the next election we may very well see General Electric running for the Senate and Texaco running for a House Seat. Maybe they will appoint Apple to the Supreme Court for life (which could be indefinite since Corporations don't die natural deaths and the terms are for "life") where they can destroy all the Laws from the bench with no one to stop them. I'm confused. Is it 2010 or 1984?

 

[Friscohoya]

I just want my phone to work and do cool things. I am happy and not interested in reading this exhaustive document. If they can get away with onerous terms, more power to them. Shows the vlaue of thoughtful design and shrewd business acumen.

 

[cmaier]

I don't know if you mean something else, but MS has never been in a situation of legal or State-granted monopoly...

Think he means "as defined by antitrust law" and not "as defined in the field of economics" (where MS would be an oligopolist, not a monopolist).

 

[Winni]

The EFF can stick it. Who cares?

Somebody fights for everybody's rights and all you have to say is "the EFF can stick it, who cares"?

You guys are just not getting what's really at stake here, and this this little AppStore is just one of the many fronts where the EFF and others are fighting for YOUR rights.

It's obvious that you are comfortable with a world where globally operating corporations have all the power and all the rights and you, their customers, only have the right to give them all their money for little in return. Obviously, you like to be controlled and have all the decisions made for you by some corporate executive.

I do not want to live in such a world, and in this special case, I do not believe that Apple has the right to control "their" device. It's a product they sold. It's no longer "their" device. It belongs to the guy who bought it. And that - at the latest - is where Apple's rights end.

But the real problem here are not any EULAs for an AppStore. The real problem is that corporations always believe that they are above the very laws that they purchase to control their consumer cattle.

Especially IT companies have become a major threat to our Freedom: They control the technology that we use to communicate. And Apple is trying to also control WHAT we communicate.

Whether you want to hear it or not: This whole subject is as political as it gets, and you should be happy that there is an EFF who is scrutinizing what the industry is doing.

 

[GeekLawyer]

To be fair, at least three lawyers have posted on this thread, and there's nothing lawyers love more than criticizing other lawyers

I find fault with that statement and I would challenge you to cite evidence of such conduct.

 

[Eidorian]

Clever work on the EFF's part. There's not much else to talk about.

 

[cmaier]

I find fault with that statement and I would challenge you to cite evidence of such conduct.

For that, sir, I shall have you disbarred.

 

[marksman]

This is so silly.

The things the EFF point out are entirely reasonable. Nobody is forcing developers to agree to these terms. They are getting consideration for their compliance. That consideration is sizable in the way of 10s of millions of potential customers to use their products.

Sorry, but this is a non-issue/story. Doesn't the EFF have something legitimate to do? This only tarnishes them to be spending resources on such things.

Seriously spending the time to track down this agreement through the foia to what end? Who cares.

The developers already know what is says, and the users don't care. So what was accomplished by this other than to make the EFF look foolish and wasteful.

 

[50548]

Think he means "as defined by antitrust law" and not "as defined in the field of economics" (where MS would be an oligopolist, not a monopolist).

This is kinda obvious...we're only talking about monopolies in the context of competition law...monopolies in a purely economic sense are much rarer...

 

[marksman]

Actually, people didn't know about how draconian it was until now and it's clear that Apple tried to keep this quiet by putting the gag clause. However, even if people knew, most are too lazy and weak to put moral principles ahead of comfort. As it stands, Apple owns you and it owns the developers. Once you buy it or try to develop for it, you have no rights and no alternatives. They control absolutely everything. This shouldn't be acceptable to anyone with some self-respect and desire for freedom.

What moral principles am I compromising by believing Apple's terms are perfectly reasonable?

 

[yg17]

Good work by the EFF, but it took nearly 2 years to get a copy of the agreement? People are actually abiding by those stupid NDAs? I'm surprised the EFF just didn't spend the 100 bucks to become a developer and post the contract.

 

[3282868]

clipped for brevity

I agree 100%. The notion of "choice" is alarming. "The greatest trick the devil ever pulled, was convincing the world he doesn't exist." Give consumers the sense of choice, but control their "choice". The health care industry is a perfect comparison. However, the law hasn't caught up with the technology... yet. While it may seem wrong, it is still in Apple's legal right... for now.

 

[costmo]

Actually, people didn't know about how draconian it was until now and it's clear that Apple tried to keep this quiet by putting the gag clause. However, even if people knew, most are too lazy and weak to put moral principles ahead of comfort. As it stands, Apple owns you and it owns the developers. Once you buy it or try to develop for it, you have no rights and no alternatives. They control absolutely everything. This shouldn't be acceptable to anyone with some self-respect and desire for freedom.

The only "people" to whom this applies are developers, and if they didn't know how "draconian" the agreement was, then they didn't read it prior to agreeing. And if we're talking about and defending people who are agreeing to contracts without reading them, why are we feeling sorry for Apple taking their rights away?

I generally agree with the work that the EFF does, even in this case. There's no harm in the public knowing what developers have agreed to. But let's not start feeling sorry for the folks who have knowingly and willingly forsook certain rights to become part of the Apple ecosystem. This has, after all, made some of them fabulously wealthy.

Please don't forget that not a single person who has agreed to this contract has any excuse for not knowing what it said first.

 

[50548]

I agree 100%. The notion of "choice" is alarming. "The greatest trick the devil ever pulled, was convincing the world he doesn't exist." Give consumers the sense of choice, but control their "choice". The health care industry is a perfect comparison. However, the law hasn't caught up with the technology... yet. While is may seem wrong, it is still in Apple's legal right... for now.

I don't think it's a matter of the law "catching up" with technology...the legal mechanisms available in virtually all developed/emerging markets (except Switzerland, with one of the most "cartelized" and closed markets in the world) are more than sufficient to cope with anticompetitive practices, regardless of the techniques involved.

The point you're sticking to is virtually the same point argued by Psystar: that Apple would represent a separate relevant market in itself. If this were the case, then Apple would be in a much more difficult position to justify its vertical integration model and restrictive licensing practices.

 

[marksman]

This is the one I have issues with. IF you make a deal with the devil under the allure of iPhone riches, then want to discuss the controlling nature of the agreement after realizing there is no gold, you are prohibited from doing so.

This seems very wrong. Fundamentally wrong.

This is fairly common in all sorts of business agreements and contracts. You negotiate contracts in good faith and in private. You don't publically scream and cry to negotiate. Most people don't appreciate that kind of negotiating and won't stand for it. That is why this is common. If you can't man up and negotiate / settle a contract like a normal person, they don't want to do business with you.

The developers all got to read the contract before signing it. So claiming they made a deal with the devil and realized there was no gold that is bogus. The agreement was clear to them up front. If a developer didn't understand it there are people you can pay to do that for you.

As a developer, I would never agree to those rules and now that there are alternatives, I would look toward those platforms (Android and Windows Mobile).

As a user, I will likely wait and see how these other more open platforms pan out for mobile devices before upgrading my iPhone or purchasing an iPad.

So you choose to leave money on the table. Who cares. I don't care. What are you developing that I care about.

If you were a developer you would likely want to expose your product to as many customers as possible, because that is likely what you would need to do to be successful.

There is nothing egregious or out of bounds by these terms. I am not even sure you actually understand them or have even a fundamental understanding of basic contracts given your reply here.

 

[marksman]

LOL. Who cares. Dear EFF: Worry about Google.

This is the truth.

 

[cmaier]

This is fairly common in all sorts of business agreements and contracts. You negotiate contracts in good faith and in private. You don't publically scream and cry to negotiate. Most people don't appreciate that kind of negotiating and won't stand for it. That is why this is common. If you can't man up and negotiate / settle a contract like a normal person, they don't want to do business with you.

The developers all got to read the contract before signing it. So claiming they made a deal with the devil and realized there was no gold that is bogus. The agreement was clear to them up front. If a developer didn't understand it there are people you can pay to do that for you.




So you choose to leave money on the table. Who cares. I don't care. What are you developing that I care about.

If you were a developer you would likely want to expose your product to as many customers as possible, because that is likely what you would need to do to be successful.

There is nothing egregious or out of bounds by these terms. I am not even sure you actually understand them or have even a fundamental understanding of basic contracts given your reply here.

Of course, in the case of the developers and this contract, there was no negotiation involved. It's a take-it-or-leave-it contract. In many jurisdictions, such contracts are subject to more scrutiny than other kinds of contracts.

 

[natasha69]

um, google, type in words iphone developer agreement". look what turns up...