Billions of Bytes | Apple's App Store Terms Are Stiff, But Does Anyone Care?

The Electronic Frontier Foundation has made public Apple's license agreement for App Store developers. Apple even requires written permission to talk about the agreement and limits how apps can be used. The EFF called the terms "troubling," but a law professor said Apple's rules are similar to other agreements and are "largely ignored."

Apple tightly controls not only the approval of third-party applications for its App Store but also its developers. Apple's developer agreement says "Public statements regarding this agreement, its terms and conditions, or the relationship of the parties" require Apple's written approval.

The Electronic Frontier Foundation made the iPhone Developer Program License Agreement public. EFF obtained the agreement via a Freedom of Information Act request to NASA, which recently released an app for the iPhone.

As Apple readies its iPad for release -- at the same time a rash of competing tablets are expected -- the question of how much control Apple should have over developers is "particularly relevant," EFF Senior Counsel Fred von Lohmann said. He detailed several "troubling highlights."

Developers are banned from speaking about the terms of the agreement, even though the terms aren't defined as trade secrets. Apple imposes a gag order on developers apart from any trade-secret issues.

By using Apple's software development kit, developers agree to distribute their creations only through Apple's App Store. Apple can reject an application for any reason, even if it meets all the formal requirements set up by Apple.

Thus developers can sink hundreds of hours of development time into an app, have it rejected by Apple, and have no choice but to toss that work out. "So if you use the SDK and your app is rejected by Apple, you're prohibited from distributing it through competing app stores like Cydia or Rock Your Phone," von Lohmann said.

The EFF also complained that Apple bans reverse engineering -- "including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law." Apple even outlaws "enabl(ing) others" to reverse-engineer the SDK or iPhone OS.

The SDK also appears to include a complete ban on tinkering with any Apple products -- not just jailbreaking the iPhone. The language bans developers from interfering with any security, digital-rights management, or authentication mechanisms in "any services or other Apple software or technology." This stops developers from allowing iPods to use open-source software instead of iTunes, for example, von Lohmann said.

Apple can also remotely disable applications, even after users have installed them.

But is all this really news? Von Lohmann concedes that one-sided contracts are "not unusual where end-user license agreements are concerned," but adds, "it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies."

That's a good point, but Apple's is a "standard egregious agreement" that Silicon Valley companies put on their developers, said Eric Goldman, a law professor at the University of Santa Clara Law School. "The terms are not consequential because no one reads them and they are largely ignored," he said.

In fact, with Google's Android mobile operating system proving a serious entrant into the smartphone market and major phone-platform vendors adopting Apple's App Store model, there's plenty of competition for developers' attention.

"From my perspective, I favor having both options in the marketplace and let the marketplace decide. If people value what Apple does and are content to accept the downsides, fine. If Apple miscalibrates its relationship with developers, it risks the overall growth of the platform," Goldman said.

"If I were a developer, I would take a close look at Apple's terms, but as a law professor interested in the overall health of the market, I'm not concerned," he added.

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