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Tags: apple evil iphone rant stupid
It's well known that every member of the official iPhone developer program is bound by Apple's iPhone SDK agreement. What seems to be much less well known is that the agreement also binds developers to follow Apple's "Copyright and Trademark Guidelines", which add a huge list of restrictions to what an iPhone developer can and cannot do.
(Before I go any further, I want to point out that I am not a lawyer and that the following is a deeply pessimistic read of what these Guidelines have to say. This is a satirical, not technical, interpretation of this document. It's quite probable that "use" means something more restricted in this legal context than it does in English, and even if it doesn't, any court would throw out the insanely restrictive clauses which I quote. Please do not bother to "refute" me on these points.)
The SDK agreement binds developers to the Copyright and Trademark Guidelines using the following language:
If You make reference to any Apple products or technology or use Apple's trademarks, You agree to comply with the published guidelines at http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html, as modified by Apple from time to time.
Since it's virtually impossible not to make reference to any Apple products or technology as an iPhone app developer (try selling an iPhone app without using the word "iPhone"), it's safe to say that everyone falls under this clause. The interesting thing here is that there is no language which restricts these guidelines to the iPhone. In other words, as best I can tell from the SDK agreement's wording, these published guidelines apply to your entire conduct, not just your iPhone application.
But what do those guidelines actually say? They're big and complex and I don't think many people have actually examined them in detail and considered the ramifications. I'd like to look at a few choice sections here.
4. Web Sites: Web sites that serve only as noncommercial electronic informational forums concerning an Apple product or technology may use the appropriate Apple word mark, provided such use complies with the guidelines set forth in Section 3 above.
Section 3 then contains requirements like this:
b. The use reflects favorably on both Apple and Apple products or technology.
In other words, it is a violation of your iPhone SDK agreement if you also run a web forum called, "Apple sucks".
Strange enough, but there's more!
7. Apple’s Trade Dress: You may not imitate the distinctive Apple packaging, web site design, logos, or typefaces.
Lucida Grande is pretty distinctive. It seems that no iPhone developer is allowed to use it, though.
Take a look at this section, emphasis added:
3. Variations, Takeoffs or Abbreviations: You may not use an image of a real apple or other variation of the Apple logo for any purpose.
Now, I'm not a lawyer, but I do read and understand English pretty well. I can't find any language that restricts the scope of this restriction. As best I can tell, it is a violation of your iPhone SDK agreement to have a picture of an apple on your desk, let alone on your web site, even if it's just there so you can caption it with, "This is an apple."
This section goes even further, emphasis added again:
Third parties cannot use a variation, phonetic equivalent, foreign language equivalent, takeoff, or abbreviation of an Apple trademark for any purpose.
Again, I can't find anything that restricts the scope of this. Thus, I must conclude that it is a violation of the iPhone SDK agreement for a developer to ever utter the word "appel", "pomme", "manzano", "苹果", "リンゴ", or "شجرة التفاح".
And finally, the real kicker:
8. Slogans and Taglines: You may not use or imitate an Apple slogan or tagline.
For example: "Think different."
Uttering the phrase "think different" (or writing it... better haul me away!) is a violation of the iPhone SDK agreement.
Think different, indeed!
-- Your friendly Apple representative.
Apple: Good one, but it would have been funnier if you had posted it from a 17. IP address. (And I don't care if they revoke my SDK privileges at this point. I haven't even had the thing installed since August.)
On the bright-side, my take on it is that these legal restrictions have to exist so that Apple (and other companies) can protect their trademarks and are minor breaches usually slip through the net undetected or ignored.
So, do you think that every Mac developer who displays the Universal binary logo has been through the official registration process? By the way, the details are at http://developer.apple.com/softwarelicensing/agreements/maclogo.html.
We stand beyond the slippery slope -- in the water. These types of agreements and many laws today are meant to overreach, giving those who hold the cards the tools to bitch-slap you when it suits their whim.
Taro: How is this agreement a good thing? It's ok to place completely insane restrictions on what other people can do as long as you tell them ahead of time? I don't buy it.
A Mac developer, journalist, blogger or grandmother is bound by then because the fact that Apple own copyrights and trademarks is the important bit, not whether you or I sign an agreement to abide by them. If you set up a site that was a copy of Apple's and which used their images and logos you can be sure that you'd get taken to court.
The iPhone SDK Agreement is a red herring with the Rogue Amoeba story. The issue is with trademarks, not the SDK agreement. You simply cannot use someones copyrighted and trademarked property without permission and if Apple went after Rogue Amoeba for using things like the Safari icon in their Mac application I'm fairly sure Apple would win the case.
The law and the courts get to decide whether you can use Apple's trademark, not Apple. The problem with the app store approval process is that their substituting the reviewer's judgment for that of a judge and jury.
If Airfoil had used the Safari icon to represent Firefox, that would have been a problem, because it's dilluting the trademark. However, Airfoil did no such thing. It only used the Safari icon to refer to Safari, and that's perfectly acceptable and protected under law. People do it all the time all over the place.
The question is, why doesn't Apple go after Airfoil for Mac? The answer is that they know they can't win in court. It's an open and shut case, fair use. The only way Apple 'wins' is in the app store, where they control everything, not in court, where the law prevails.
Fair use protects both us *and* Apple. Fair use protects Apple because Apple doesn't have to sue every little person who uses their trademark in some way. If someone uses an Apple trademark to refer to the Apple product, that just reinforces the tie between the trademark and the product. It's the use of the trademark to refer to *other* products that violates the trademark laws.
Note that Windows is a trademark of Microsoft. So why doesn't Microsoft sue the pants off Apple for using their trademark in those commercials? Because it's fair use. Apple only uses the trademark to refer to the product.
Anyway, thanks for the clarification Jeff, very useful and interesting.
In particular, copyright and trademark law have a concept of "fair use" which Apple's guidelines do not acknowledge.
Furthermore, the law is likely to have a different opinion on what constitutes "use" than Apple does. I continue to maintain that simply grabbing an image off a user's computer and then displaying it does not constitute "use".
Lastly, Apple does allow other applications that use other organization's trademarks, under your definition. Airfoil Speakers Touch continues to display the icons of non-Apple applications. Apple has no problem with this whatsoever. Furthermore, Apple itself "violates trademarks" (according to your side of things) constantly with things like the Dock and the Finder.
However, one final thing I'd love for someone to clarify for me is how Apple can get away with effectively blocking fair use and what the likely outcome would be if they were taken to court over it. Can they do so simply because the iPhone SDK agreement effectively waives it? I think this is something you alluded to earlier but I didn't understand it then although I do now in light of what you and Jeff have said.
But it's not a right. It's just an action that's legal. A contract can restrict you from doing all sorts of legal things. An NDA can restrict what you say. A work contract will restrict what you can do with your time. And this SDK agreement restricts what you can do with Apple's trademarks, beyond what the law itself restricts.
As for what a court would say, that's hard for me to say. If the use in question is in an iPhone app, I'm sure that the court would side with Apple. If the use is elsewhere, but is still being restricted because of the iPhone SDK agreement, I think this would be fuzzier.
When you try to sell software though Google's AdWords, for example, it is not allowed to use 3rd party trademarks in your advertisement texts. I can tell you that my ads for SmashTunes (an iTunes 'add-on' for the Mac) are not very successful, without being able to use terms like Mac, iTunes or Apple.
You could argue that Google is effectively making money because of these trademark restrictions, without ever offering any service (i.e. displaying my ads).
(By the way, Russian advertising law forbids using any other companies trademarks in ads).
Oh, and if you still can't advertise in AdWords with "Mac" in text, search macsb Yahoo group for email of Apple's contact and write to them.
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