EFF in the News
Apple's developer agreement -- recently unearthed by the Electronic Frontier Foundation -- severely limits the company's liability and enables them to kill any application.
"Overall, the Agreement is a very one-sided contract, favoring Apple at every turn," the EFF wrote. "That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies.
"How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform."
Apparently, copies of the “iPhone Developer Program License Agreement” have been hard to come by - until now. The Electronic Frontier Foundation, spotting a NASA App for the iPhone, filed a Freedom of Information Act request for a copy of the agreement “so that the general public could see what rules controlled the technology they could use with their phones.”
Cindy Cohn, the San Francisco-based legal director for the Electronic Frontier Foundation who spoke at the court hearing in opposition to the book plan, said the group has repeatedly urged Google to incorporate many of the same privacy standards that public libraries have, such as never turning over library records to police without a warrant.
Google wanted to make such decisions on a case by case basis.
"It's tremendously important" for Google to adopt the library standards, Cohn said. "The ability to be able to engage in intellectual inquiry without somebody being tracked — it's an important piece of free expression."
Rebecca Jeschke of the Electronic Frontier Foundation pointed out to us...truth can rip through cyberspace as quickly as lies.
"Before the ink is dry on net neutrality regulations, we already see corporate lobbyists and 'public decency' advocates pushing for loopholes," said EFF Civil Liberties Director Jennifer Granick. "A loophole like this could swallow network neutrality, with ISPs claiming copyright enforcement as a pretext for all sorts of discriminatory behaviour."
Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, a group that advocates for tech companies and Internet users, defended Real's pursuit of the case. He said Real could have provided real benefit to consumers, if not with RealDVD, then eventually with a DVD player that would have incorporated some of the software's copying abilities. Real was working on a player, codenamed Facet, which would have created copies of DVDs and stored more than 70 films on its hard drive.
"(Real's testimony) made it clear that Real was out to deliver to consumers a product that people wanted to see," von Lohmann said. "I think the message this sends is if you get into the business of enabling consumers to do with DVDs what they've long done with CDs, you'll get sued out of the business. I think that's bad news for consumers. What that means is that if you want to create a digital back-up of your movies, you have to pay for that a second time on iTunes."
The ruling highlights tensions between the U.S. and Europe when it comes to privacy standards, said Eddan Katz, international affairs director at the Electronic Frontier Foundation. And it could to lead to the U.S. being unable to let similar legislation pass, he said, given that "this was an experiment that was tried and as a matter of constitutional law rejected."
Performance issues aside, Apple has registered its formal opposition to jailbreaking under the cloak of copyright, claiming the act is illegal under the Digital Millennium Copyright Act (DMCA). This claim has been disputed by the Electronic Frontier Foundation (EFF) and open source Web browser developer Mozilla, which has called Apple’s restrictions both harmful to innovation and an improper application of DMCA rules. Apple has thus far taken no legal action against users who jailbreak their phones, nor against any jailbreak-enablers, including the iPhone Dev Team, which has managed to jailbreak every iPhone OS update to date.
Meanwhile, the EFF and Mozilla have asked the U.S. Copyright Office for an exemption specifically permitting installation of legal apps on iPhones. The Office listened to arguments on both sides in a May 2009 hearing, but has missed its own October projection for a decision and has yet to issue its opinion.
Corynne McSherry, an EFF lawyer representing Lenz, called the ruling a victory.
"I think what's important here is that someone who's had their speech chilled can move forward and bring a lawsuit under 512(f)," said McSherry.