Rejected by Apple

| Ted Landau's User Friendly View

I’ve covered the story before. A developer submits an iPhone app to the App Store. The app gets rejected for what the developer believes to be an arbitrary or unjust cause. Some degree of controversy ensues. Usually, after some modifications by the developer or some degree of concession by Apple, or both, the app winds up in the Store after all.

Yup. I’ve been down this road before. Still, I never expected I would be traveling it for an app of my own. Yet that is exactly what happened.

I am the author of an ebook called Take Control of iPhone OS 3. Last year, Adam and Tonya Engst (the people behind the Take Control Books series) negotiated with O’Reilly Media to have several Take Control titles converted to iPhone apps. Not surprisingly, given its subject, my book was included in this destined-to-be-an-app group.

To be clear, I did not personally submit the app to the App Store. Rather, it was submitted on my behalf by O’Reilly Media. Thus, I have never had any direct contact with Apple regarding this matter. All the information I have is via O’Reilly Media as an intermediary.

Was I looking forward to having my book appear in the App Store? Sure. Did I consider it a big deal, especially from a financial perspective? Absolutely not. To be frank (maybe franker than my publishers would prefer), I doubted that the profits from sales of my book-app would cover taking my wife out to a fancy dinner. It was just going to be fun. Or so I thought.

Reality hit in December when we received word that the book had been rejected.

My obvious first question was “Why?” Apple’s only answer was that we would “need to remove the section on jailbreaking.” Could we get any further guidance? Did we really have to remove all mention of jailbreaking? Or was there some specific aspect of the coverage that needed to be revised? Apple’s answers to all of these questions was silence. All O’Reilly Media could tell me was that “Apple doesn’t provide specifics, unfortunately.”

However, O’Reilly Media did add that the jailbreaking section of my book “violated” the iPhone Developer Program License Agreement. Really? 

A Bit of Background

Exactly what does my book say about jailbreaking? There is a 4 page section (in a 200 page book) that explains the risks of jailbreaking — such as it may void your warranty and “may lead to problems using your iPhone, such as crashes or even startup failures.” Apple publicly offers this same advice in a support article on jailbreaking. Thus, I didn’t imagine that this would be a problem.

The problematic material, if there was any, is where I discuss the potential advantages of jailbreaking and offer a brief subsection titled “How to Jailbreak.” Despite the title, the subsection does not provide step-by-step instructions. Rather, it offers only a vague description of the jailbreak process, noting: “Describing how to jailbreak an iPhone for a book like this is an exercise in futility. What you can or cannot do, and how best to do it, keeps changing as Apple continues efforts to prevent jailbreaking…As such, it’s pretty much pointless for me to give step-by-step guidelines.” (I did include a couple of links where you could get further assistance.)

I honestly did not believe any of this material was cause for Apple to reject the app. This view was reinforced by my perusal of the iPhone app version of David Pogue’s iPhone: The Missing Manual. Pogue’s book, already in the App Store, includes coverage of jailbreaking, with statements such as: “It didn’t take long for these programmers to ‘jailbreak’ the iPhone, using special software to open it up (metaphorically speaking) and shoehorn their own programs onto it.”

Back to Our Story

I was curious as to exactly what clause in the License Agreement my book violated. I obtained a copy of the Agreement (not via O’Reilly Media). Is there really a statement that specifically prohibits any mention of jailbreaking? No. As it turns out, the supposed violation might come about only if you make a rather tortured (in my view) interpretation of a much more general restriction that states that applications may be rejected if they contain materials that Apple finds “objectionable.” The cited examples were “obscene” or “defamatory” material, not informed discussions of technical procedures.

However, it doesn’t really matter. Apple’s License Agreement includes a catch-all clause that amounts to a Get-Out-Of-Jail-Free card for the company, allowing it to do whatever it wants: “Apple may…reject Your Application for distribution for any reason, even if Your Application meets the Documentation and Program Requirements.”

In other words, Apple can reject your app even if it is not in violation of any specific clause in the License Agreement. Apple doesn’t even have to provide a rationale for its decision. Apple can basically tell you: “We reject your app. We’re not going to tell you why. We’re not going to tell you what, if anything, you can do to revise the app that would change our decision. It doesn’t even matter if another app already in the Store includes the same material that is the basis for our rejection here. And there’s not a thing you can do about it. So get lost.”

I think you can tell that I hardly believe this is a fair policy. But I get that my opinions carry no weight whatsoever. Apple is holding 4 aces and I have a pair of deuces.

Rejected Again…and Acceptance

I was reluctant to cut out the entire section on jailbreaking. As much as possible, I wanted the app version of the book to be the same as the ebook version. So I deleted the entire “How to Jailbreak” subsection and removed some related text from other sections. I held out some hope that this would be sufficient to make the book acceptable to Apple. It was not.

I was not entirely surprised to learn that the revised app was rejected — this time with no explanation. I probably would have dropped the matter at this point and given up on having my book in the App Store. But others at Take Control Books and O’Reilly Media had invested time and money into pursuing this matter, and I felt they deserved for me to follow through. And I was curious as to how the story might play out. So I re-edited the book, eliminating all the material on jailbreaking. This was the magic key to unlock the door. My book-app was accepted and is now in the App Store. [For those of you who buy the book and want the “redacted” material, it will soon be available online via a link for getting “updates,” located in the beginning of the book.]

Bottom Line

While Apple’s policies may be legal, I believe they are wrong. I don’t see how Apple’s behavior here (or in similar situations with other apps) benefits the user, despite Apple’s claim that this is the ultimate basis for its decisions. Rather, what Apple is doing amounts to corporate censorship, for its own benefit, in what should be a much more open marketplace for apps. If Apple at least permitted a way for users to acquire apps rejected from the Store, similar to how you can import CDs into iTunes as an alternative to the iTunes Store, I might not object to their policies. But they don’t.

Where will it stop? At the risk of sliding too fast down a slippery slope, I can imagine a cookbook app getting rejected because it contains meat recipes (Steve Jobs is a vegan). It sounds silly. But my point is that it could happen and, if it did happen, there is nothing you or I or anyone could do about it. Except protest. Only a decision in the court of public opinion can force Apple to budge here. It’s up to you.

Sign Up for the Newsletter

Join the TMO Express Daily Newsletter to get the latest Mac headlines in your e-mail every weekday.

52 Comments Leave Your Own

Bosco (Brad Hutchings)

Well said Ted. Hey, any chance the O’Reilly folks would port its Take Control series to Android?

But seriously, I’d love to see some publicity hungry developer come up with a game called iSteve. You move your player around collecting black mock turtlenecks and blue jeans. You have an opportunity to eat things too. If you eat meat products, you’re RDF power diminishes, but your liver health increases. Conversely, if you eat fruit and granola, your liver health decreases, but your RDF shoots up. If you drink the wrong brand of bottled water, you throw a tantrum. You get to choose from a bunch of products to present at your Keynote. You always get applause. You have to have full RDF to choose the G4 Cube or the Apple TV, but can choose iPod Video or iPhone with only a little RDF.

Business plan:
1. Make game for iPhone.
2. Rejected by Apple App Store.
3. Port to Android.
4. There is no “????????”
5. Profit.

Helge

Ted, if the government was doing this, you could drag them to court and would win the case with no trial at all. I think your case is special, because you had to edit (censor) a book.
Seriously, Apple should reconsider their policies soon, at very least because most of their costumers living in democracies and are used to basic rights like freedom of the press. Apple should apply a code of ethics here if they want to stay “the good guys”.

Frank Lowney

The eBook as app model does muddle the normally clear issues of censorship with the written word with technical issues relating to security, performance and so on.  These are not really relevant to the points made but they are there and they do confound attempts to discuss matters like this in a clear and straightforward way.  There are many who would support Apple’s right to control applications running on their devices who would not support Apple’s assertion that it has a right to censor.

So, it will be very interesting to see how eBooks and eTexts written in open formats such as .ePub fare in the land of Apple.  Already, you could recast your book in ePub and folks could read it with Stanza for iPhone and iPod touch and many other similar apps.  Here is where Apple could get burned in the court of public opinion and maybe in other courts as well.

We know that iPad/iBooks.app will support ePub but what we don’t know yet is whether and how an ePub document that you or I might write will get onto the iPad.  Getting the same thing on an iPhone or iPod touch is trivial if you don’t involve Apple in the process.

What I’m hoping for are new podcast file types at least one of which is for .epub files.  Podcasting eBooks, eTexts and whatever else would be quite nice, especially in iTunes U.

jragosta

What a bunch of whiners.

Apple has terms of service. That includes prohibition on jailbreaking.

By telling people how to jailbreak (whether you give them a step-by-step or not), you are assisting people in breaking their terms of service with Apple. Basically, you are participating in contributory infringement.

Why should Apple help you to help people break their rules? You don’t have a right to free speech when using someone else’s podium. If you want to exercise your free speech, you’re free to create your own podium.

geoduck

At least a more transparent process with less byzantine rules. If they put out a list “100 Commandments for Getting Your App Approved” it would help people avoid this kind of problem. What I’ve gathered from the many stories about this is that the person creating the app does not know what step might trigger a land mine. The rules can be as restrictive or open as Apple wants, people just have to know what they are. A book full of legalese does not tell a programmer what they need.

jragosta

That’s nonsense. Almost all the time, there is a clear violation of the rules.

In this case, it doesn’t take a rocket scientist to figure out that Apple isn’t going to want to help people jailbreak their phones.

Of course, from a moral perspective, it should never have been there in the first place. Look up ‘contributory infringement’.

graxspoo

Right you are Ted. The app approval process is a damper on innovation on the platform. Who wants to spend a year writing an application only to have it rejected, and with little guidance on how to remedy the situation.

Combine this with the fact that “expensive” apps cost $5, and you have to wonder if any real desktop-grade applications will ever be developed for the iPad.

Its one thing when we’re talking about toy-apps for a cellphone. Its another when we’re talking about applications for a tablet device like the iPad. Apple isn’t helping matters by selling iWork components for $10 each.

jragosta

“The app approval process is a damper on innovation on the platform. “

Absolutely. No one would EVER write an app for the AppStore. And no one would ever buy an app there.

Oh, wait.

Apple has 140,000 apps. BILLIONS of apps sold. They didn’t write themselves. All the reports are that iPad app development will be even greater. Out of 140,000 apps, how many were rejected without reason? Ten? Five? Fewer?

The App Store has been one of the great successes in software. The fact that a few loud-mouths are unhappy doesn’t change that.

Ted Landau

By telling people how to jailbreak (whether you give them a step-by-step or not), you are assisting people in breaking their terms of service with Apple. Basically, you are participating in contributory infringement.

Even if I agreed with you, I would point how that I did not tell people “how to jailbreak”—especially in the first revision that was also rejected—any more than Apple does itself (in its own support documents) or than is found in other books accepted in the Store (namely Pogue’s). If Apple is going to enforce some quasi-rule, they should at least do so consistently.

jdb8167

I think this is the section of the iPhone Program developers agreement that you are violating.

“(e) You will not, through use of the Apple Software, services or otherwise, create any Application or other program that would disable, hack or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone OS, this Apple Software, any services or other Apple software or technology, or enable others to do so; and (f) Applications developed using the Apple Software may only be distributed if selected by Apple (in its sole discretion) for distribution via the App Store or for limited distribution on Registered Devices (ad hoc distribution) as contemplated in this Agreement.”

This is section 3.2(e). The part that is relevant is the “or enable others to do so.”

Ted Landau

Why should Apple help you to help people break their rules? You don?t have a right to free speech when using someone else?s podium. If you want to exercise your free speech, you?re free to create your own podium.

This gets to a critical question. Am I really using Apple’s “podium”? Or is a different analogy more appropriate?

For example, should Amazon ban a book from its store simply because the book advances a political view that someone at Amazon disagrees with? Should Amazon even be in the business of reading every word of every book in its store before deciding whether or not to carry it? Should it be telling authors that specific (non-obscene, non-illegal) sections of a book need to be deleted before Amazon will carry it? I’m not asking “can” Amazon do it, but is it proper for a general-purpose bookstore to do this? Would you be standing up and defending Amazon for behaving in this way?

While we’re at it—would you prefer if Apple could similarly prevent you from downloading an ebook via a Web browser to your Mac? On the basis that your Mac is “Apple’s podium”—so they can block whatever they want?

Ted Landau

This is section 3.2(e). The part that is relevant is the ?or enable others to do so.?

I saw this section. I believe it is open to interpretation. It sounds to me as if it is describing an app that would actually accomplish some prohibited task (such as a utility that would access jailbreak software)—rather than a text that merely mentions that such things can be done.

In any case, I would restate that I did not provide information that would “enable” anything—especially in the revision that was also rejected.

geoduck

For example, should Amazon ban a book from its store simply because the book advances a political view that someone at Amazon disagrees with?

More to the point would there be an outcry if Amazon banned a book that included instructions on how to break the security on Amazon’s web site. Or how to break into Amazon’s warehouse? Even if it’s not step-by-step instructions? Of course not.

Apple puts security on its products for a reason. I don’t have a problem if they won’t let someone put instructions on how to defeat their security. Could they handle this sort of thing better? Of course. Everyone would be happier with a system where you knew going in what would get your App rejected and when they do reject an App the reasons were spelled out clearly and in detail. I don’t think that’s too much to ask. I think clarity would make life easier for both App creators and App reviewers.

Ted Landau

Or how to break into Amazon?s warehouse?

That’s a bit of a stretch. Breaking into Amazon’s warehouse is a crime. You can literally go to jail for that. I don’t think what I’ve been discussing falls into that category.

I might also counter: “Is it proper for Amazon to ban a book that is critical of how Internet book stores are destroying bricks-and-mortar stores?”

We can play dueling analogies ad infinitum I suppose. There are definitely some shade of gray here. The problem is that I don’t think Apple is interested in gray.

Bosco (Brad Hutchings)

Ted, they probably will get bent that you spoke about Fight Club too. I think you hit the nail on the head with the “podium” analogy. Your iPhone doesn’t belong to you. It belongs to Apple. That’s how they see it. That’s how they will see it with the iPad too. I think a lot of us who saw this and still gave them the benefit of doubt over all the goodwill they’d amassed in the past decade are particularly bent because our trust that Apple wouldn’t act like douche bags was misplaced. The saddest part is that at this point, it’s predictable. Pick some tough decision Apple has to make. Imagine a reasonable alternative and a douche bag alternative. 99 times out of 100, Apple will go with the second. And then the mindless fanboys like jragosta will line up to call anyone who doesn’t see it Apple’s way a “whiner”. That just strengthens my view that Apple wants to appeal to the brainless now.

Ted didn’t discuss how to jailbreak in his prose. At the most, he identified that it is a phenomenon, which is a fact. He identified the downsides of doing it. In fact, it wasn’t even a very balanced discussion of the issue or what drives it. The only silver lining in this is that now, people here are talking about jailbreaking. But Apple doesn’t get irony, that’s for sure.

geoduck

We can play dueling analogies ad infinitum I suppose. There are definitely some shade of gray here. The problem is that I don?t think Apple is interested in gray.

Absolutely, and if Apple wants to be b/w about it then they should put out a list of commandments so everyone knows what the rules are. Thous shalt not discuss jailbreaking. Thou shalt not show uncovered boobs. Thou shalt not harvest personal data. The problem IMO is that the rules ARE grey. There is room for interpretation so your App with a discussion of jailbreaking gets rejected and another does not. In a way I feel sorry for the reviewers. They are trying to make solid defensible yes no decisions on submitted Apps based on rules of legalese jello.

Joe

“Breaking into Amazon?s warehouse is a crime. You can literally go to jail for that. I don?t think what I?ve been discussing falls into that category.”

That’s the point you’re missing. Contributory infringement IS illegal. While you can’t go to jail, it is against the law.

And providing someone with instructions (or even telling them where to find the info) qualifies. Read the final court decision in the Psystar case.

mathue

The app approval process is a damper on innovation on the platform. Who wants to spend a year writing an application only to have it rejected, and with little guidance on how to remedy the situation.

Apparently, quite a few.

I suppose one could always write for Palm’s WebOS. With the sales volume and established name they have you should get enough to get a Burger King Double Cheeseburger wink

And seriously, a YEAR for an iPhone OS application? I think the number of such applications is extremely small. The iPhone OS isn’t a full feature desktop OS.

Joe

“I think you hit the nail on the head with the ?podium? analogy. Your iPhone doesn?t belong to you. It belongs to Apple. That?s how they see it. That?s how they will see it with the iPad too.”

Yes, the iPod belongs to you and you’re free to use it. The AppStore belongs to Apple and they’re free to control it. The App Store podium most certainly DOES belong to Apple.

Ted Landau

Contributory infringement IS illegal. While you can?t go to jail, it is against the law.

I won’t give a full answer to this, as I would just be repeating what I have already said. However, I will say this:

While I am not a lawyer, I doubt that a simple discussion of jailbreaking amounts to “contributory infringement.” If it did, a host of very reputable institutions are guilty of breaking the law. Just do a Google search on the word “jailbreak.” The first link that popped up when I did this was to Wikipedia. The topic has also been covered on the New York Times, Macworld magazine, and too many other places to count. Are we all guilty of a crime? I don’t think so.

Joe

“vWhile I am not a lawyer, I doubt that a simple discussion of jailbreaking amounts to ?contributory infringement.?”

And you’d be wrong. I’ve spent most of my career dealing with intellectual property issues.

The difference is that most of those sites simply mention jailbreaking. You actually include a section called ‘How to jailbreak’. That is a clear encouragement for people to do so. Whether you have all the details or not is irrelevant - your actions are suggesting that you think jailbreaking is OK and you’re facilitating it - at least as far as sending them in the right direction.

Do others go even further than you? Sure. But what does that have to do with Apple’s right to protect its business model and prevent you from breaking the law?

Ted Landau

Yes, the iPod {iPhone?} belongs to you and you?re free to use it

Wait! If I understand your point here, you are saying that I should be “free” to jailbreak my iPhone. If so, I agree with you. Now if we can only get Apple to agree.

Joe

“Wait! If I understand your point here, you are saying that I should be
“free” to jailbreak my iPhone.”

I never said otherwise.

Of course, you are still obligated to sign the carrier agreement you signed when you bought the phone. You are also obligated to follow the software terms of service (since the software is only licensed, not purchased).

Apple is also free to refuse to give you updates to your phone and to block you from using their App Store.

Ted Landau

Of course, you are still obligated to sign the carrier agreement you signed when you bought the phone. You are also obligated to follow the software terms of service (since the software is only licensed, not purchased). Apple is also free to refuse to give you updates to your phone and to block you from using their App Store.

I knew there had to be a catch. smile

Ted Landau

You actually include a section called ?How to jailbreak?.

And I will say again…for the umpteenth and last time…that I deleted that section (and any related material) from a revised version of the app. AND APPLE STILL REJECTED IT.

Lancashire-Witch

Ted ended with -

Only a decision in the court of public opinion can force Apple to budge here. It’s up to you.

I’m not sure it is up to public opinion (or me).  If you (the App developer) don’t like the terms and conditions (which I agree, maybe legal, but wrong) then don’t do business with them. Maybe this crazy situation won’t change until the number of Apps in the Store starts significantly decreasing.

Some may argue that 70 million iPhone/iPod Touch owners should boycott the App store until ... ... until what?  The problem there is the device owners are not the group who are being “wronged”. They may be missing out but their only recourse as consumers is to take their business elsewhere.

While we?re at it?would you prefer if Apple could similarly prevent you from downloading an ebook via a Web browser to your Mac? On the basis that your Mac is ?Apple?s podium??so they can block whatever they want?

Similarly - If I don’t accept the terms of the EULA or other restrictions then I wouldn’t buy a Mac.

Joe

“And I will say again?for the umpteenth and last time?that I deleted that section (and any related material) from a revised version of the app. AND APPLE STILL REJECTED IT.”

Yet you still left in a section about jailbreaking - including the advantage of doing so. That is an encouragement for people to jailbreak their phone. Whether you like it or not, that’s illegal. Furthermore, it’s simple business ethics. Apple has a business plan. You are showing people ways (directly or indirectly) of circumventing Apple’s business plan. Just why in the world do you think Apple has ANY obligation to help you do that?

“I knew there had to be a catch”

It’s not a catch - it’s simple Intellectual Property 101.

You wrote books. By your logic, I should be able to buy one of your books, then make 1,000 copies and sell them for $1 each. After all, you’re essentially denying that Apple has any rights to control their intellectual property. Why should you have the right to prevent me from copying your books and selling them?

While it’s not a perfect analogy, the roots of both situations are the same. Creators have the right to license their creation however they wish and to prevent people from using their creation in ways that they don’t approve of.  It’s that simple.

Tiger

Yep, the topic has been covered. To death. I am surprised by this post completely. As a journalist turned quasi-web app developer, you know WHY this didn’t get approved to join the 104,000+ apps already approved. It is their prerogative as owner of the store.

Apple is not going to open their own store to reinforce the notion or enable further dissemination of such info. They’re not stopping you from publishing the info, they’re just not going to sell it. It is within their right in their own space. And EVERYBODY knows that if you’re using an iPod, iPhone, and soon to be iPad, you play by their rules or you go elsewhere. You’re not forced to buy into the ecosystem, but you better realize that there are rules to be abided by if you do, whether you feel they’re fair or not. It’s not “a hidden” fact or feature. It’s right up front. We’ve known about it for more than 4 years in the case of iPods and at least two in the case of the App Store.

And as for their determination to not approve the app because it offends their policy, it falls far short of censorship if all they are doing is NOT carrying your app which may undermine them. You can sell it in a myriad of other places and you can even post it on the web free. If Amazon made such a determination, that would be their choice. They’re not a government entity, but rather a commercial business that makes decisions on what to carry and not carry. Same deal.

So, run the material by some editors, resubmit it and hope it gets approved.

Or not. That’s YOUR choice.

Because choices still exist.

Joe

“You wrote books. By your logic, I should be able to buy one of your books, then make 1,000 copies and sell them for $1 each. After all, you?re essentially denying that Apple has any rights to control their intellectual property. Why should you have the right to prevent me from copying your books and selling them?”

I thought of a way to make this more applicable.

Let’s say Apple had a page on their web site showing people all the places they could buy pirated copies of your books. And then Apple asked you to pay money to help support the site.

Would you be happy? Of course not. But that’s what you’re doing. You’re asking Apple to invest resources to support your book which encourages jailbreaking Apple’s phone. The fact that you don’t give exact instructions is irrelevant - as is the fact that it’s not Apple doing the copying in my example.

It’s wrong - and it really saddens me that not only do you not have any concept of Apple’s rights, but that you’re so vocal in publicizing the fact that you don’t have any concept that Apple has any rights.

Ted Landau

Yet you still left in a section about jailbreaking - including the advantage of doing so. That is an encouragement for people to jailbreak their phone. Whether you like it or not, that?s illegal.

I’m sorry. I don’t buy it. So if I say “One reason that people rob banks is to get rich quick without having to work for it”—then I am breaking the law for discussing an “advantage” of bank robbing? I don’t see it.

In any case, I don’t have the time to keep replying to all the comments that keep coming in. I do appreciate them, however, and will continue to read them. In the meantime, talk amongst yourselves.

other side

Yes, the iPod belongs to you and you?re free to use it. The AppStore belongs to Apple and they?re free to control it. The App Store podium most certainly DOES belong to Apple.

The difference is the App Store is the only LEGAL AND SUPPORTED way of getting apps onto the iPhone.

Imagine an arrangement where you could only buy books from the same place you bought your bookshelf.  WTF?  Heh kinda ironic to think that’ll be exactly the case with iPad….

Unless something major changes, 2007-2011 is going to be 1984-1989 all over again (i.e. the period where Apple blew the Mac’s quantum leap).

Terrin

There is a big difference between helping somebody modify the software on a phone that person already owns legally and what Psystar was shot down over.

Psystar was actually using Apple’s software in violation of the license to steal sales of hardware from Apple. In other words, it was violating Apple’s license to compete with Apple. The Court of course frowned on that. The Court, however, would likely have had no problem with a Mac user modifying a legally acquired copy of OSX to work on a PC provided the actions were for personal use and non-commercial in nature. That is fair use plain and simple. That is legal.

Jailbreaking a phone is legal. It is protected in the copyright law as fair use, and specifically under the DMCA.

Apple can put anything it wants in a license. That doesn’t mean it is legal. Much of what is in Apple’s license would not be enforced by a court. 

Apple has never sued an individual for modifying OSX for personal use. Besides being bad public relations, it would lose.

?Breaking into Amazon?s warehouse is a crime. You can literally go to jail for that. I don?t think what I?ve been discussing falls into that category.?

That?s the point you?re missing. Contributory infringement IS illegal. While you can?t go to jail, it is against the law.

And providing someone with instructions (or even telling them where to find the info) qualifies. Read the final court decision in the Psystar case.

Terrin

I am a lawyer. 

Jailbreaking is specifically protected under the DMCA. Further, when a person does it for non commercial use, it is likely fair use and protected under the copyright law as well.

Apple can make it a license violation to engage in jail-breaking, but the license condition is likely not enforceable for copyright purposes. It may, however, violate the phone’s warranty.

I won?t give a full answer to this, as I would just be repeating what I have already said. However, I will say this:

While I am not a lawyer, I doubt that a simple discussion of jailbreaking amounts to ?contributory infringement.? If it did, a host of very reputable institutions are guilty of breaking the law. Just do a Google search on the word ?jailbreak.? The first link that popped up when I did this was to Wikipedia. The topic has also been covered on the New York Times, Macworld magazine, and too many other places to count. Are we all guilty of a crime? I don?t think so.

Terrin

You keep claiming jail breaking a phone is illegal, but no court has ever ruled that. Jail breaking would be fair use under the copyright law, and arguably legal under the DMCA.

Further, you keep missing an important part of Ted’s grievance: namely, Apple’s policy is not consistent. For instance, David Pogue’s book discusses jail breaking in greater depth then Ted’s. Apple approved that.

So, what Apple is doing is legal, but not fair. Additionally, what Ted is engaging in isn’t contributory infringement under traditional copyright law. Perhaps, you could make a DMCA argument, but that’d be a stretch.

Yet you still left in a section about jailbreaking - including the advantage of doing so. That is an encouragement for people to jailbreak their phone. Whether you like it or not, that?s illegal.

Peter

And seriously, a YEAR for an iPhone OS application? I think the number of such applications is extremely small.

And why do you think that is?

Perhaps it’s because no one is interested in investing the amount of time, effort, and money in order to build something that complex and then have Apple reject it.

I spend $50,000 for three months and come up with a little App that does something kinda cute and fun.  If Apple rejects it, well, that’s a hunk of money to be out of, but it won’t necessarily break a company.  I spend $200,000 for a year of development and it gets rejected?  That’s something else.

This is another reason you see so many copycat Apps.  Someone does something and it gets accepted and everyone else plays pile-on.  As soon as Apple accepted one fart app, they got inundated with hundreds more.

That said, I agree with everyone who says that the App Store belongs to Apple and they have the right to do whatever they want for whatever reasons.  The problem I have with that is that the App Store is the only way have getting things onto the iPhone.

To drag out the analogies, if I create a product I can take it to JC Penney and see if they’ll buy a bunch to sell through their stores.  If they don’t want to, I can take it Target.  If Target agrees, I can still take it to Macy’s (assuming I didn’t give Target an exclusive).  If I take it to all the stores and no one wants to sell it, I can still sell it myself through a website or something like that.  That’s how the real world works.  But in Apple’s world, I take it to Apple and they say “No” and that’s it.  *Poof*  Tens or hundreds of thousands of dollars out the window.

I’d like to see Apple allow developers to distribute their own Apps.  I’d keep the App Store, though, and all of Apple’s rules.  In fact, I’d make the rules a bit tighter.  Why carry hundreds of different fart apps?  Pick out the best ones and dump the rest.  If the developer feels wronged, they can try to sell it in another store or on their own.

Joe

“The difference is the App Store is the only LEGAL AND SUPPORTED way of getting apps onto the iPhone.

Imagine an arrangement where you could only buy books from the same place you bought your bookshelf.  WTF?  Heh kinda ironic to think that?ll be exactly the case with iPad?.”

Who cares if it’s the only supported way of doing it?

If I write a book and decide that I’ll only sell it through one bookstore, does that give you the right to steal it? Or if the bookstore says that if I put my book there that I’m not allowed to sell it anywhere else and I choose do do so, do you have the right to steal it?

The fact that there’s no other source is completely irrelevant. By developing the software, you are aware that it’s the only way to get your software onto the iPhone AND YOU CHOOSE TO DO SO.

Bosco (Brad Hutchings)

Here’s another analogy that I thought of today. Imagine your 8-year old son coming to you and asking why the dog licks its crotch. Remembering the old joke, you reply, “because it can”. Next day you walk in on your son licking his own crotch. What do you say? You tell him that just because you can do some things doesn’t mean you do them in or out of polite company.

With its license agreements, Apple is licking its own crotch with respect to copyright law. The powers they don’t get from copyright and are unable/unwilling to enforce with technology they take via license agreement. Whether it’s “you can only install Mac OS X on Apple hardware”, or “you cannot record generated speech on Snow Leopard”, or “you cannot modify the Apple TV software and then give the device to someone else”, or the implicit “you cannot mention jailbreaking in an iPhone app”, they are just sitting their licking their crotches and yet, we all buy more and more of their stuff. Meanwhile the fanboys are literally patting Apple on the back while Apple is hunched over licking its crotch.

Some would say “abide by the rules or go elsewhere”. I say, make it so expensive across so many dimensions for Apple to lick its own crotch, that its just goes and gets Microsoft to do the job. Or something like that.

Joe

“And why do you think that is?

Perhaps it?s because no one is interested in investing the amount of time, effort, and money in order to build something that complex and then have Apple reject it.

I spend $50,000 for three months and come up with a little App that does something kinda cute and fun.  If Apple rejects it, well, that?s a hunk of money to be out of, but it won?t necessarily break a company.  I spend $200,000 for a year of development and it gets rejected?  That?s something else.”

And that’s why no one would ever develop an app for the iPhone, right? There’s no way that there will ever be 140,000 apps - right?

The fact is that the overwhelming majority of apps are easily accepted - because the developers follow the rules AND DON’T DO ANYTHING STUPID. What Landau did was the equivalent of creating an app that says “Apple is evil. Buy a Dell” and expecting Apple to distribute it. Do you really think that after all his years in the industry, Landau didn’t know he was flaunting that in Apple’s face? It just doesn’t pass the smell test.

“To drag out the analogies, if I create a product I can take it to JC Penney and see if they?ll buy a bunch to sell through their stores.  If they don?t want to, I can take it Target.  If Target agrees, I can still take it to Macy?s (assuming I didn?t give Target an exclusive).  If I take it to all the stores and no one wants to sell it, I can still sell it myself through a website or something like that.  That?s how the real world works.  But in Apple?s world, I take it to Apple and they say ?No? and that?s it.  *Poof*  Tens or hundreds of thousands of dollars out the window.”

That’s the risk you take. When you write a book, there’s no guarantee that a publisher will accept it, either.

Nice of you to admit that there’s the possibility of companies having an exclusive, though. If some designer signs an agreement to sell her clothes exclusively through Walmart and I want to design clothes for that designer, I don’t have the right to complain that I want the clothes I designed in Target. iPhone customers know (and the majority are happy) that they can only get apps from the App Store. Developers know that they have to follow Apple’s rules and that it’s the only option. They CHOOSE to write apps for iPhones, anyway. It’s not reasonable to then complain that it’s the only option. They knew that going in.

iJack

Is this the same company that is soon to take control of this nation’s great newspapers and magazines as content for their iPad?

What happens when David Pogue at the Times is critical about something or other from Apple?

I can’t wait for that chapter of the story.

iJack

Joe is full of crap, and clearly not an attorney as his question, “what does that have to do with Apple?s right to protect its business model and prevent you from breaking the law,” indicates.  No such law exists.  The DMCA is not law.  It is a contract.

So Joe, why don’t you just bugger off.

jdb8167

I saw this section. I believe it is open to interpretation.

In my experience, software licenses rarely are left open to interpretation. They mean pretty much what they say unless the clause is somehow illegal. That is why people freak out when they find something in a license agreement that claims to transfer ownership of content for example.

If the clause says you can’t do it, you pretty much have to interpret it the way the originator says unless you have very good lawyers. If Apple says that you can’t contribute to helping others to break DRM, then you can’t even point people to a website that does that. In this case, Apple has made the requirement clear by disallowing your Application (a book) from entering the App store until it complies. Your interpretation isn’t very relevant unfortunately.

mathue

Perhaps it?s because no one is interested in investing the amount of time, effort, and money in order to build something that complex and then have Apple reject it.

Oh yes, it’s quite clear ‘no one’ wants to create apps.

(And no Petter, I’m not directing my sardonic eyeroll specifically at you, just the notion no one creates bigger, more complex apps)

I could spend thousands to patent an idea and there’s NO way to be certain that the idea won’t be rejected by every possible producer. As bizarre as it sounds there are no guarantees in life, even at the ‘i’ app store smile

mathue

Is this the same company that is soon to take control of this nation?s great newspapers and magazines

Unless you’re talking about FOX I think you’re a touch deceived :D

Could you point me to the article where it says Apple is buying (‘taking control’ of) this nation?s great newspapers and magazines?

rjackb

Just using some common sense, I would hardly expect the Apple app store to accept anything that mentions “jailbreaking” an iPhone—despite their past record with other apps. So submit such an app at your own peril. And I have no problem with Apple for that stance. In fact, I appreciate it.

Nookster

Ted, having a look at your book in the UK App Store, the bullet point reference is unchanged at least;

* What are the pros and cons of jailbreaking?

Did you have any problems including these articles in the app?

* I’m a Unix geek. How to I get root access?

* How do I buy or make ringtones?

* How do I set up an ad-hoc, peer-to-peer Bluetooth network?

* How do I use iPhone tethering to connect my laptop to the internet?

jameskatt

Well, in the end, you modified your book and you are now selling it on the App store.

If you were of anti-Apple religious belief, you would have taken your book and walked away with a huff - perhaps even attempting to sell it on the Android marketplace (good luck, he he).

But you did not.  You did the right thing and cut out the objectionable parts of your book (which is like porn).  And now you are making bucks on the app store.

Do the right thing.  Follow Apple’s guidelines and desires.  Ride Apple’s coattails and MAKE MONEY.

It’s so simple.

This is why there are more than 175,000 apps in the app store, and growing.

Frank Lowney

Here’s a fact that few here are considering so let me toss this on the fire.

Ted or you or I could whip up a book in .ePub format.  This is an open standard and there are some excellent free and cross-platform apps that make creating an .ePub work very easy (Sigl and Calibre).

Then, anyone with an iPhoneOS device (iPhone, iPod touch or iPad) could download the free Stanza application (or any one of several equivalent others) from the iTunes App Store.  With Stanza, we could read Ted’s book and hundreds of thousands of others.  Apple would have nothing to do with this procedure.  We could even read books on how to do all sorts or illegal, immoral or fattening things.  Apple is not involved and, therefore, cannot be held responsible.

The ePub standard also supports DRM though I don’t know whether or how Stanza or any other ePub reader handles that.  Thus, Ted or you or I might even be able to make a few bucks on our writing. 

The problem in this case is with the “Book as App” model itself.  With the App Store, Apple offers us a way to market and monetize our work.  It’s a slick and nicely packaged deal but subject to Apple whimsey, policy and the many fears of it corps of “Nervous Nelly” lawyers.

Apple doesn’t have to put my book on its shelves any more than Amazon or Barns & Noble would have to.  It a brick and mortar store, we understand the shelf space vs revenue case and accept the fact that this is the bookstore’s call. 

But what about virtual shelf space?  Is it so lacking in costs that this equation doesn’t apply?  Is there no excuse for a bookseller not to carry my book, not even if it will only sell 50 or 500 copies? 

Apple and other online booksellers will need to come to grips with this issue soon because not having a defensible reason for rejecting a book will lead to accusations of censorship.  Calling a book an application will not immunize Apple or anyone else from this accusation and the bad PR thaqt will surely follow it.

other side

Who cares if it?s the only supported way of doing it?

If I write a book and decide that I?ll only sell it through one bookstore, does that give you the right to steal it? Or if the bookstore says that if I put my book there that I?m not allowed to sell it anywhere else and I choose do do so, do you have the right to steal it?

Look at it from the customer’s perspective.

Again, let’s say you purchase a bookshelf from me.  And as part of that purchase, you could only populate it with books “approved” by and of course purchased through me.  Again, WTF?

As an author, if you wish to sell your book through only one store that’s your right.  BUT as a bookshelf owner, WHO has the right to limit which books I may place on it?

The iApp market needs to be officially opened to apps outside of the App Store, period.  We’re supposedly the better-informed group of tech users, we shouldn’t need Apple to babysit us.  Good apps will prosper, crap apps will fail.

other side

Here?s a fact that few here are considering so let me toss this on the fire.

Those who start by burning books finish by burning men.

Apple had better be thinking long & hard about their position as exclusive content provider for the iPhone and iPad.

Peter

And that?s why no one would ever develop an app for the iPhone, right? There?s no way that there will ever be 140,000 apps - right?

Wrong.  What that means is that no one will invest the time and effort to come up with innovative Apps that actually take time and effort to develop.  Instead, as I said, you end up with a plethora of dopey little Apps that took next to no time to write and/or a bunch of copy-cat “Me too” Apps.  Again, shortly after the first “Fart App” showed up, Apple got inundated with a hundred more.  Nobody was going to waste the time to write one if it wasn’t going to be accepted.  The App was rejected a few times before Apple finally gave in.

By the way, before you quote that 140,000 number so triumphantly (it’s 150,000 now-a-days), many of those vaunted Apps are books (and it’s questionable whether the author approved all of those books).  In other words, they’re the same App with different content plugged in.  There are more than a few Apps that are that way.

Don’t get me wrong—there are some pretty cool and innovative Apps.  Of course, many of them are available for Android also.

Ted Landau

Ted or you or I could whip up a book in .ePub format.? This is an open standard and there are some excellent free and cross-platform apps that make creating an .ePub work very easy (Sigl and Calibre).

Yes. This also gets me thinking about the planned iBookStore for the iPad. Will Apple attempt to exert the same amount of control over what books get accepted into the iBookStore as it does for an app in the App Store? I suspect not. For one thing, it would be impractical; too many books to read. But I also suspect that they will view a book in the iBookStore as a different animal than an app based on a book, and will be more tolerant of the former.

We’ll see.

Ted Landau

A wrap-up comment:

One theme of several comments was: <It’s only expected that Apple would reject an app that discusses jailbreaking, a procedure that Apple explicitly prohibits and sees as a threat to its business plan.>

On reflection, I see more merit to this position that I initially credited it with. I suppose my initial viewpoint was colored by the fact that I don’t believe Apple should be blocking jailbreaking in the first place (as I have discussed in other columns). At the very least, there are apps that are only available via jailbreaking that I believe Apple should allow in the App Store.

I also don’t believe that jailbreaking is a threat to Apple’s business. In fact, I would bet that if Apple released a statement today, saying that jailbreaking is now okay with them, it would have virtually no effect on App Store sales.

Regardless, I thought there was a reasonable chance that Apple would tolerate the tepid section on jailbreaking in my book, in a way similar to how magazines print Letters to the Editor that are critical of the magazine and its policies. I guessed wrong.

Still, I understand that this is all my viewpoint and not Apple’s. And Apple is within its rights to have a different view.

More generally, however, I believe that the focus on jailbreaking detracted from the larger point I was trying to make: that Apple can reject an app for any reason it wants; Apple need not defend its reasoning nor even offer a reason at all. And both developers and users have no recourse, because there is no other approved way to get apps on the iPhone. This has implications (negative ones, in my view) well beyond whether or not my book’s small section on jailbreaking makes it into an iPhone app. It is this that I was suggesting we should protest.

Finally, there is one category of comment that I have little tolerance for. These are ones that say: <You knew what Apple’s rules were before you submitted the app, so don’t complain. If you didn’t like the rules, you didn’t have to submit the app.> This same “logic” gets applied to a user’s decision to buy an iPhone. I simply do not accept the idea that you forfeit your right to complain or protest something simply because you choose to participate in the system. Just because I choose to buy a $15.00 movie ticket, does not mean that I forfeit my right to complain that the ticket price is too high. Or to write a column about how I believe high ticket prices are ultimately bad for the movie business. Or whatever. The same is true for the iPhone.

Log-in to comment