Briefs.app

My co-worker and all-around good guy, Rob Rhyne has officially open sourced Briefs.app as of today. After three months of being dicked around by Apple's review team, he's finally given up on getting Briefs.app onto the App Store.

Throughout the ordeal, Rob has taken the whole thing with tremendous grace and has only good things to say about the people involved in the entire process. I hope he'll forgive me for not being quite so gracious.

I'm pissed on his behalf, since he won't be. Make no mistake: This sucks. This is no way to treat anybody, but especially him. Rob has bent over backwards throughout the process to be nice and work within the system and to avoid saying anything negative about the problems he's faced. Rob has kept the discourse on a level I think few of us could manage. He didn't go out and raise a stink the way many developers have when they felt slighted by the App Review team. Rob just calmly and patiently worked within the system trying to make his case and get a product he worked on for months onto the app store… while working a full time job, starting a new business, and being a parent to a toddler. Oh, and his wife works too. Rob's one of the few developers I know who spends more time sitting at a computer than me.

If Apple's review team had just come out and rejected the app, it would have sucked, and it would have been the wrong decision, but it would have been an acceptable situation. The app review team's job is to make tough decisions. Sometimes they're going to make bad decisions, and sometimes they're going to make decisions that we developers are going to disagree with.

But since making decisions is, in fact, their job and they've never actually made a decision about this particular app, it's not an acceptable nor a forgivable situation. Three fucking months Briefs.app has sat in the review queue, and in that time, the app review team has allowed other prototyping applications onto the app store: applications that do the same basic tasks that Briefs.app was created to do. Interface was approved several weeks after Briefs.app was submitted to the App Store. LiveView and Dapp were both updated just yesterday. iMockups was approved about a week ago.

But Briefs still sits in the queue and nobody can be bothered to even say what the exact holdup is or what needs to happen before a decision will get made.

I don't know what reason they could have for dragging it on like this and not making a decision, but it's not right. Apple owes Rob, and all the people who want to use Briefs, an apology.

Read more »

Posted in: Apple,Briefs,Rant,Review Process

Star Wars

Guy English points out that Apple's review process let Star Wars Trench Run onto the App Store despite its use of an "Apple-owned graphic symbol" on the instructions page. I know some of you are expecting me to defend Apple on this one, but I don't think there's any reason to do so. Somewhere or another, it looks like they screwed up, and it was a screwup with especially bad timing. It makes it look like a) LucasArts is getting special privileges, and/or b) the inconsistency of the review process isn't improving, and neither puts them in a very good light.

Of course, I don't know if LucasArts has an "express written trademark agreement" in place with Apple. It's possible. If they do, that would explain the discrepancy and provide justification for allowing Trench Run on the App Store, but my gut says this was just a garden-variety review process screwup. In other words, the reviewer missed it, just like the reviewer of the first edition of Airfoil Speakers Touch. As Heinlein said, don't attribute to villainy that which can be adequately explained by stupidity.

Assuming there isn't trademark agreement in place between Apple and Lucas, the only correct course of action here is for Apple to either reverse their previous decision on Airfoil, or else reject any future updates to Trench Run unless LucasArts removes the iPhone image you can see at the link above.

I don't think Apple should remove the existing App since they haven't removed earlier apps that have made it through the review process with similar images in place. They did not remove 1.0 of Airfoil Speaker Touch, for example, nor many other apps that got through the review process with an iPod or other Apple-owned graphic image in them. But, if they continue to allow LucasArts to update Trench Run with this image, that will completely undermine any argument they had for keeping Airfoil out of the App Store.

In both cases, an image is composited on top of an Apple-owned graphic image, so either both should be allowed, or neither should be. If Apple has a valid trademark reason to keep out Airfoil Speakers Touch, then they have a valid reason to keep Star Wars: Trench Run out as well. If Trench Run's use is okay, then there's no valid reason (absent an express written agreement between Apple and LucasArts) that similar uses by smaller developers shouldn't also be okay.

Read more »

Posted in: Review Process

A Few Questions

I'm happy to let this die when you all are. But, a few responses to questions I've received.

Q: Didn't Bayer actually lose the rights to the Asprin trademark as a result of losing World War I?

A: Yes and no. Wikipedia is wonderful, but it's not exactly designed for legal research. The Treaty of Versailles was definitely a key factor in the decision, and there is a logical chain of events from that treaty to the loss of the trademark rights in Bayer v. United Drug. But the treaty itself didn't invalidate the trademark.

The Treaty of Versailles resulted in the term "aspirin" being considered generic, and that was later used as the factual basis for the Court decision that ruled that Bayer had lost its trademark. The Treaty of Versailles provided conclusive evidence that the term was used generically, which otherwise would have been a question of fact for the judge or jury to answer. The treaty definitely was a detriment to Bayer in the court case, but there was five year gap between the Treaty of Versailles and the conclusive loss of the the brand name.

There are ountries that were signatories to the Treaty of Versailles where Bayer still, to this day, has a trademark in the brand name Aspirin with a capital "A", even though the term is considered generic when used with a lower-case "a". In the U.S., trademark law is clear (now) that if a brand name is allowed to become generic, it is no longer protectable as a trademark (at least, unless a secondary, non-generic meaning arises, which would be a truly odd case, but definitely a possibility under current law).

Q: Couldn't you have picked a more factually case?

A: Probably not. My goal wasn't to write a treatise on U.S. trademark law. That would have been much longer and would have required a lot more research. The reason I picked Bayer from the various milestone trademark court cases is because it's recognizable and has clear modern parallels in Advil and Tylenol. You can buy both ibuprofen and acetaminophen in generic form, yet people still pay more for Advil and Tylenol. Why? Brands have value. Apple's brands have a lot of value. They're consistently ranked among the world's most recognized and valuable brands.

If today, the terms "iPhone" or "Apple Computer" became generic, it would be catastrophic for Apple as a company.

Is that likely? Of course not. But the reason that it's unlikely is because the IP section of Corporate legal departments are 99% prophylactic. They spend most of their time reviewing, and often nixing, materials that are sent to them. Because the stakes are so high, and there are few clear-cut, black and white rules, corporate legal departments will always err on the side of being too aggressive when it comes to trademarks. It's why a company like Disney will risk bad public sentiment and take action against a day care center over the use of their trademarks. It would take way more than a few negative stories in the press to equal the loss of trademark protection for Mickey Mouse.

As programmers, we often code defensively. We check for conditions that are extremely unlikely to happen, because we know that if they do, the consequences could be drastic. That's basically what corporate IP attorneys do, only they don't have the luxury of knowing exactly what the consequences are, or what exactly they have to do to make sure the consequences don't happen.

I'm not saying that's necessarily a good thing. I think that the U.S. copyright, trademark, and patent laws are in drastic need of an overhaul, but as long as they are the way they are, corporations are going to be extremely aggressive when it comes to trademark enforcement. Thinking that any corporation won't is just being silly. It's especially true with highly-recognizable, high-value brands, like Apple.

Think it's unnecessary? Ask the Psion company what they think. They're on the verge of losing the rights to the trademarked name "NetBook". They're being sued by Dell because Dell wants to be able to continue calling their low-end portables "netbooks". So, Dell is claiming that the term "netbook" has become generic (and I think they're actually right). Don't think for a second that Michael Dell wouldn't sue Apple if he thought he had a chance of prying one of Apple's valuable brands into a generic term.

Read more »

Posted in: Rant,Review Process

My Last Word on Rogue Amoeba

Correction: The court case (Bayer v. United Drug) was decided in 1921, not 1917. 1917 was the Treaty of Versaille, which declared Aspirin generic and laid the groundwork for the court case. I apologize for the error

The last two days have been very interesting. Thank you to everyone who e-mailed or tweeted me with salient points, whether you agreed with me or not, I'm richer for the discussion, and many of you brought up points I hadn't considered, so thank you. You've helped me clarify my thoughts on this matter tremendously.

Unfortunately, as interesting and fun as the discussion has (mostly) been, I have to bring it to an end because it's taking time away from finishing More iPhone 3 Development. I simply can't meet our publication deadline if I spend any more time on this discussion right now. But I do have one more point that I want to bring up. I didn't mention it earlier because I wanted to make sure it was true before talking about it. It is, so I'm adding it to the discussion.

But first, let me point out that there are actually two arguments that seem to be going on simultaneously, and not everyone is making a distinction between them:

1. Would it be good for the developer community and/or App Store Consumers if Apple allowed Rogue Amoeba to use these images in this way?
2. Was it unreasonable for Apple to reject the application?

I think we can all agree that the answer to the first question is a resounding YES. If I implied that I think otherwise, I apologize for it. It was not my intention.

But, if you're going to go storming off after throwing a temper tantrum that would make a pre-schooler proud, in my mind, the answer to the second question had better also be YES. As long as Apple had a valid, substantive reason for rejecting the application, then the answer to the second question is NO. Not getting your way does not mean somebody else is being unreasonable. If the other party wasn't unreasonable, a hissy-fit is an inappropriate response to not getting what you want.

In my last two posts, I identified several reasons why Apple might have refused to let Rogue Amoeba use the various images of Apple computers in their iPhone application. Here's the one I didn't mention before, and it's stronger than the others: Apple has trademarked the distinctive appearance of their computers. In other words, these images aren't just copyrighted images, they are Apple's trademarks.

Now, if you know anything about Trademark law, then a little light probably just want off for you. If not, let me tell you a little story.

In the late eighteen hundreds, a company called Bayer was selling a wonder drug under the trademarked brand name "Aspirin". In 1917 1921, a court ruled that Bayer hadn't taken sufficient steps to protect that trademark, and the term had become generic. Bayer lost ownership of a brand name worth millions, probably even billions, of dollars. Today, you can buy cheap, generic medicine under the name "aspirin" from dozens of manufacturers. You can't buy generic "tylenol", you have to buy "acetaminophen" or Tylenol™. You can't buy generic "advil", you have to buy "ibuprofen" or Advil™. But, you can buy generic aspirin. Anybody, not just Bayer, can sell acetylsalicylic acid under that name.

No corporate legal department today is going to let that happen on their watch. No lawyer wants to be the one who allowed his or her company to lose rights to a valuable brand (they'd likely also lose their job in the process). As a practical matter, corporations have to take more aggressive steps to enforce their trademarks than they do with plain old copyrighted material, or they run the risk of losing them. They don't have to be perfect in their enforcement, they are allowed to be human, but if you put a violation in their lap by submitting it to the App Store, they really don't have much choice but to reject it if they realize it's there.

That it took three months to get a final rejection is almost certainly due to the fact that there was a concerted effort by a number of people inside Apple on Rogue Amoeba's behalf. In the end, I would bet money that the legal department just wouldn't sign off on any solution that included Rogue Amoeba's use of Apple's trademarked images.

Is it unreasonable for a company to protect its trademarks? Of course not. Every first year law student knows about aspirin and knows that corporations have to protect their trademarks. Was it unreasonable for a legal department to protect their company's interests? Of course not either, that's their fucking job description.

Now, could Apple have been more forthcoming and communicated better? Abso-fucking-lutely. Are they being more aggressive than the law requires? Possibly, but not definitely. All IP involves gray areas with no fine delineations. When in doubt, any corporation (not just Apple) will be more aggressive than they need to be, since being less aggressive can lose them valuable rights.

Let me also point out that Apple's Trademark Guidelines for Third Parties, which are incorporated by reference into the iPhone SDK agreement (§2.6), explicitly state:

2. Apple Logo and Apple-owned Graphic Symbols: You may not use the Apple Logo or any other Apple-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Apple, such as a reseller agreement. (emphasis mine)

In the course of this discussion, many people have claimed that the SDK agreement doesn't actually prohibit the use of these images in an iPhone application.

But, they do, in plain language that it doesn't take a lawyer to understand. Anybody, who is claiming that the SDK agreement doesn't prohibit the use of these images in an iPhone application (including John Gruber) is wrong. If an agreement incorporates another document by reference, that document becomes part of the legal agreement, and the trademark guidelines, which are incorporated by reference into the SDK agreement, explicitly disallow the use of "Apple-owned Graphic Symbols" without written permission. This is so unambiguous and clear, it's almost hard to believe a lawyer wrote it.

After more thought, I just don't think there's any gray area here at all. Rogue Amoeba wanted an exception to the terms of the SDK agreement. They may not have realized that's what they were asking for but that is, indeed, what they were after. They didn't get the special treatment they wanted, so they decided to take their ball and go home, end of story.

The fact that the images aren't stored in the iPhone application is completely irrelevant to the discussion because Rogue Amoeba has complete control over the code that sends the image, and the code that displays it. If excluding disallowed content from the application bundle was a real loophole, Apple would have to allow, for example, applications that served porn, but didn't contain the porn in the application bundle. That's completely different than a web browser that's capable of showing trademarks or copyrighted images (or porn), because what is shown is completely at the discretion of the user, not the software. If the software chooses what image to show and where to pull it from, the actual source location of that image is irrelevant.

The fact that the images are available through a public API on the Mac is also irrelevant because those APIs are designed to let you show images that are already on the machine to the person who is sitting at that machine. The images are already part of the operating system. Just because that API is public doesn't mean you can do whatever you want with the image once you have it. I can pull one of Apple's trademarked images off their web site. The fact that it's been made available publicly doesn't give me the right to use it however I want.

Read more »

Posted in: App Store,Review Process

Some More Thoughts on the Airfoil Situation

Well, I got Fireballed for the second time. The first time Gruber agreed with me, this time, not so much. I've been having some interesting discussions over e-mail and twitter today with various people, and have read John's comments and given them some thought.

I'm rather a big fan of Daring Fireball, and nine times out of ten I agree with John's assessment of anything technology-related, so I thought the subject merited a revisit. Being wrong on the Internet is certainly not outside the realm of possibility.

So, on reading things over, John definitely makes some valid points. I was wrong, for example, about the images being contained inside the iPhone application. I've got no excuse on that one except to say it was 3:00 in the morning and I was tired, so mea culpa. John's right on that point, and I was wrong.

It's an important point and it puts the situation into slightly more of a gray area than I thought when I was writing last night, but it doesn't change what I intended to be my main point, which John actually acknowledges toward the end of his post when he says

Is Apple within their rights to reject this app for this reason? Sure. The bottom line is that they can reject apps for whatever reasons they want — that’s the rule that matters here. But was Rogue Amoeba foolish for designing their application this way? No. There’s nothing in the SDK agreement that they’ve violated.

I have two responses to this. First, I never stated that Rogue Amoeba were foolish for designing their UI this way. I think it's a great UI. It was never my intention to argue the merits of user interface design at all. The point I meant to make (and, based on feedback I've gotten, obviously did a poor job of making), was that Apple didn't have to allow Rogue Amoeba to use these images and Rogue Amoeba didn't have any reason to think Apple would.

They were after a an exception to a stated rule because it's a good feature and they wanted to provide it to their users. Showing a picture of the connected computer is a good feature. I don't disagree with that at all. But that argument conflates two different things. A great UI made with components you don't have the right to use is still a great UI. It doesn't change the fact that you don't have the right to publish that UI.

I also don't agree with the last point in the quote above. The reason John is mistaken is because he's assuming there needs to be an affirmative proscription. But that's not the way copyright works. Absent a grant of permission (or a legal exception, like fair use) you're not allowed to publish images that you don't own or have permission to use. Nowhere in the SDK agreement or the third party guidelines that they incorporate by reference does Apple explicitly grant permission to use their copyrighted images in the way they were used in Airfoil.

You could argue fair use, but this isn't a clear-cut case of fair use. Some courts might be receptive to it (most probably not). But this isn't a court of law, it's the review process. Apple is judge, jury, and executioner.

And many people claim therein lies the problem. And I don't necessarily dispute that. Most developers would prefer a more open environment. Most would like to be free from the constraints of the review process.

Should Apple reconsider this decision? Yeah, it would be great if they would. If they wanted to, they certainly could find any number of compromises that protect their rights or accommodates whatever concerns led to the rejection in the first place.

Does that mean Rogue Amoeba is blameless for insisting, over the course of three months, that they be allowed to use Apple's copyrighted images in their application? No. Sorry, it does not. Neither good intentions, nor good design grants you rights to somebody else's work.

Read more »

Posted in: App Store,Daring Fireball,Review Process

Rogue Amoeba

Today, Rogue Amoeba announced they were giving up on iPhone development. It's definitely not a good thing to have a second high-profile developer publicly leave the platform in a little over twenty-four hours. Clearly, Apple has a public relations issue to deal with.

The blog post in which this was announced was, it appears to me, intended to paint out a black-and-white picture. Apple was wrong. Rogue Amoeba was not only right, they were taking the only reasonable course of action available to them.

I'm going to risk the ire of the maddening crowd once more, but I think somebody needs to come to Apple's defense this time. I love a good mob scene as much as the next guy, and I keep my pitchfork nice and sharp just in case the need should arise. But… the picture that Rogue Amoeba has painted in their farewell post doesn't look quite so black and white to me. Certainly, Apple could have handled many things about the situation better, but so could have Rogue Amoeba. Let's strip it down to the basics.

1. Airfoil Speakers Touch included pictures of Apple products;
2. These were images owned by Apple;
3. The iPhone SDK Agreement specifically prohibits the use of images, icons, and logos owned by Apple in iPhone applications;
4. The first rejection clearly and unambiguously stated why the app was being rejected and how it could be fixed.

There's simply no reasonable argument that Airfoil Speakers Touch didn't violate the SDK agreement, and we're not exactly talking about an obscure clause of that agreement. This is a term that every iPhone developer knows. It is common knowledge among iPhone developers that if you use Apple's images, icons, or logos, you run a strong risk of rejection. The implication of Rogue Amoeba's post seems to be that they should have been given special treatment and been granted an exception for two reasons. First, because Apple allowed the images in the previous version of Airfoil Speakers Touch, and second, because the icons they used are available through public API calls in Mac OS X.

The first argument is silly. It has a certain emotional appeal, but it lacks any substance whatsoever. If you were pulled over for speeding, you wouldn't suggest that the police officer should let you go because you've sped down this same road every day for the last month. That you've never been caught before is no excuse when you finally do get caught. The review process is an imperfect, manual process, and they don't catch every violation every time. You can't seriously expect that they're going to grandfather violations in simply because they failed to catch them previously.

The second argument is that the images were available through public APIs on the Mac. And that's absolutely true, but it's hard to see the relevance. If these images were vended by APIs in the iPhone OS, then it would be a very valid point. But the iPhone is not the Mac. They don't have the same APIs and they don't have the same rules. That something was available on the Mac has absolutely no relevance to whether you can use it in an iPhone application. These images are NOT available in the iPhone SDK using public APIs.

There was a third, implied, argument that Apple should have allowed the application on the store despite the violation because not letting the application on prevented users from receiving an important bug fix. Again, there's a certain emotional appeal to this argument, but it doesn't hold up to scrutiny. Rogue Amoeba knew exactly what the problem with their app was back in July, and they were told exactly what they had to do to get the app through review. The reason that users of the application couldn't get an update for three months was because Rogue Amoeba didn't want to "bend" back then. They felt that they were in the right, despite the fact that their application was in clear violation of the SDK agreement, an agreement whose terms they had accepted. Rogue Amoeba chose to try and force the issue rather than fix the problem. It was essentially the corporate equivalent of throwing a temper tantrum, and Rogue Amoeba wants Apple to take the blame for the consequences of their own actions.

I can certainly sympathize with Rogue Amoeba's frustration and can understand why they're choosing to focus on the Mac. I don't blame them whatsoever for the decision. Working on an unrestricted platform has its benefits and a definite appeal. I'm looking forward to getting back to some Mac development myself once this book is done, not in protest, but just for a change of pace. But, the Mac has disadvantages as well. For one, it's a lot harder to reach potential customers. You don't have 50 million potential customers who are but a few taps away from buying your app at any time. Maybe that doesn't have value to Rogue Amoeba, since they already have a user base and web store infrastructure in place, but it does have value to many developers.

Rogue Amoeba's final, parting shot was to suggest their customers who want Rogue Amoeba to return to developing for the iPhone should contribute to the EFF by sending them to this page.

If refusing to bend was the corporate equivalent of a temper tantrum, then this is the corporate equivalent of running to your mom when someone picks on you. This isn't a freedom issue, and the linked page doesn't present an accurate description of the situation. It says Apple "prevented" Rogue Amoeba from delivering a bug fix "because of trademark concerns". That's not what happened. That's such a one-sided misrepresentation that I would call it only a hair's breadth away from lying. Apple prevented Rogue Amoeba from delivering an application that violated a contractual term that Rogue Amoeba had agreed to. In other words, Rogue Amoeba agreed not to do X, then did X. It then took three months before Rogue Amoeba accepted that they actually couldn't do X. On this page, they also fail to state that the "code provided by Apple expressly for this purpose" happens to be code provided on a completely different platform and not actually on the iPhone OS. The code most certainly is NOT provided so that people can display these images in an iPhone application. The statement is misleading and, again, darn close to being a lie.

Bottom line, this is a contracts issues, not a free speech issue. If Apple had rejected the version with the link to the EFF page, then there might be a free speech issue, but Apple didn't reject that. Rogue Amoeba has valid concerns, but they don't have anything to do with constitutionally protected rights. I don't have a right, for example, to sell products in Wal Mart if Wal Mart doesn't want my products on their shelves. Wal Mart owns their stores and gets to say what goes on the shelves. It's not a violation of my rights that I can't force Wal Mart to sell whatever I want them to sell. Same goes for Apple. If the terms aren't acceptable, you're free to go develop for another platform. But don't suggest that your rights have been trampled on because you don't want to comply with the terms of a contact that you agreed to.

Read more »

Posted in: Apple,Review Process

Joe Hewitt Quits iPhone Dev

TechCrunch is reporting that Facebook engineer Joe Hewitt has given up on iPhone development. According to them, Joe has stated the App Store review process is the main reason for his departure.

Now, Joe is an undoubtedly high-profile developer due to his involvement with Facebook and his creation of the Three20 project, and he's not the only developer to express dissatisfaction with the review process. His departure is something that Apple is certainly going to notice. I'm personally sorry to see him go, he was a valuable contributor to the iPhone development community.

That being said, however, if TechCrunch's reporting is accurate, then I have an issue with Joe's parting words… with his claimed reason for leaving the platform. It comes across, at least to me, as a cheap shot; misguided and even a touch hypocritical. Now, maybe the comment comes across as harsher than it was intended out of context, but have you read Facebook's terms of service?

Pretty much every proscription that's in the iPhone SDK, and many that aren't, are contained in the Facebook TOS. Facebook doesn't allow nudity, for example. It even has vague proscriptions against things like "bullying", and they retain the right to take down any material at any time "without reason". Without reason? You mean your content doesn't even have to be illegal, offensive, or a violation of the TOS for Facebook to be able to take down the end-result of your hard labor? Right. Yet, I haven't heard Joe say a single thing about Facebook's TOS, or threaten to leave the company or web development altogether as a result of his employer's oppressive and restrictive terms.

Pot, Kettle. Kettle, Pot.

The only meaningful difference between Facebook's TOS and the iPhone SDK agreement is that Apple acts as a gatekeeper, reviewing applications before they go on the store to make sure applications comply with the SDK agreement, whereas Facebook doesn't act as gatekeeper, they allow anything on, and then take down the offending material after the a complaint is filed.

I suppose the difference between the two approaches is an important one, but it's not without reason that the two function in different ways. Facebook hosts their content in the United States and is considered a "service provider". Under U.S. laws, and the laws of most countries, service providers have a certain amount of immunity as long as they take action to remove illegal or infringing content. As long as they respond to complaints in a timely fashion they are generally not liable, criminally nor civilly, for the content that their users and third-party developers put up. If Facebook hosts content that is illegal in another country, there's typically little chance of prosecution because of jurisdictional issues, so the only recourse is to send Facebook a takedown notice.

On the other hand, Apple is actually running a store. They sell applications using servers and even maintaining a physical presence in countries around the world. Apple's App Store does not benefit from a service provider's immunity the way Facebook does, nor can they hide from prosecution using jurisdiction since they actively sell their products around the world. Even though Apple is not the original author of the applications they sell, they can still be held liable, much the way that a shopkeeper who sells illegal goods, but doesn't manufacture them, can be held liable.

I really doubt that Apple wants this responsibility for reviewing applications any more than we developers want them to have it. I'd bet money that Apple's legal staff looked at the situation prior to the App Store's initial opening and came to the conclusion that opening the app store to any application without review would expose Apple to significant legal risks.

Yes, the review team screws up now and again, but they have a much harder job than Facebook's legal team because they have to be proactive and look at an enormous volume of material before it goes online and have to constantly make judgment calls. They have to make those judgment calls after spending only a very small amount of time with each app, and sometimes they don't get it right. But, Facebook doesn't always get everything right, either, despite benefiting from the service provider's immunity.

Simply put: the App Store is not the web, and Apple and Facebook are both taking similar steps to protect themselves from liability in light of their situations, which are fundamentally different. Part of the reason that the App Store has been so successful is precisely because it's NOT the web. It's easier and more focused than the web. It's on everybody's iPhone, all over the world, at all times. That's pretty cool, but there's a cost to that, and part of that cost is that it opens Apple up to liability. They have to cover their ass, and don't believe you wouldn't either in their shoes.

It's fine to hate the review process. It's fine to think Apple should do things differently, or to suggest that they should be better about not rejecting apps for stupid reasons. It's even fine to leave the platform if it's not meeting your needs, or if you just want to move on to something new. But leaving a platform as a way of making a public statement about that plaform while simultaneously continuing to work for a company whose platform has similar, but even more oppressive and restrictive rules doesn't seem entirely fair to me.

Read more »

Posted in: App Store,Review Process

This is Why

This is one of the reasons why the review process is so hard for Apple to get right. Apple has to make sure that every application not only doesn't use private APIs, but the applications must be legal in every jurisdiction that the iPhone is sold. That's likely the reason for not allowing nudity in App Store games even when Apple does allow movies with nudity in the iTunes store.

Movie studios create international versions of their movies. Movie studios have the budget and the motivation to tailor their products for multiple targets and to make sure that their movies do not violate any laws wherever they choose to sell them. Movie titles are often changed in translation to avoid trademark problems or to avoid offending the predominant culture in a specific country. Different versions of the same movie often have different scenes, sometimes with certain scenes available in the U.S. release being cut or altered in the version released for some other countries. In some rare cases it goes the other way, and a scene that the MPAA forces a filmmaker to cut or alter, is kept in releases for countries who don't share some particular taboo or social more with the U.S.

When you realize the true magnitude of the problem facing the app review team at Apple, it's hard not to cut them a little slack. Well, unless one of your apps happens to be stuck in review at the moment, in which case it becomes considerably harder to cut them any slack since you are being directly impacted.

So, anyway. Apparently, America is not the only country with asinine IP laws and large, soulless corporations willing to wield those laws as a weapon to protect profits.

I don't know anything about German trademark law, but if Ravenbursger's claim has any merit, this could lead a whole slew of new written or unwritten rules about what can go on the App Store. I don't see Apple taking a fine grain approach and removing offending apps from, for example the German store, but leaving them in the others. It would add considerable complexity to an already difficult and thankless job. It's not going to happen: They're either going to tell Ravensburger to stuff it, or they're going to remove every possibly infringing application from all app stores.

In US trademark law, Ravensburger's claim would likely not get very far. Although there are some exceptions, in the US, it is not possible to trademark generic terms. Certainly, this game has existed, and has been called "Memory" (for that's about the only skill it requires) since long before Ravensburger started selling lame licensed character variants of the game.

Does anyone have any idea whether this claim has any merit under German trademark law?

It is unfortunate, especially for the small, independent business, that doing business internationally is such horribly complex thing.

Read more »

Posted in: App Store,Review Process

On Private APIs

I'm hearing from a couple of different sources that Apple's App Store reviewers now have some way to scan submitted applications to detect the use of private APIs. I've never been an advocate of using Private APIs, and Dave and I strictly avoid them for the book examples, but I always thought it strange that Apple left to the honor system any use of private APIs that couldn't be easily discerned.

Looks like you need to step more carefully now if you have used any private framework APIs.

I know this step will annoy some developers, but in the long run, it's for the best. Private APIs add fragility to an application, and they also discourage people from submitting enhancement requests, which are how Apple gauges whether a currently private API should be made public.

Read more »

Posted in: App Store,Review Process