EFF: Apple should defend developers in face of patent threats
The Electronic Frontier Foundation (EFF) has called on Apple to be developers' knight in shining armor in face of threats from patent trolls. As TiPb covered in our special edition iPhone Live podcast with FOSS Patent's Florian Mueller, iOS developers including James Thomson of PCalc and the Iconfactory, makers of Twitterrific have received letters from patent holding company, Lodsys, asking for licensing fees for the use of in-app purchases for in-app upgrades. The EFF sees that position as untenable:
This is a problem that lawyers call a misallocation of burden. The law generally works to ensure that the party in the best position to address an issue bears the responsibility of handling that issue. In the copyright context, for example, the default assumption is that the copyright owners are best positioned to identify potential infringement. This is because, among other reasons, copyright owners know what content they own and which of their works have been licensed. Here, absent protection from Apple, developers hoping to avoid a legal dispute must investigate each of the technologies that Apple provides to make sure none of them is patent-infringing. For many small developers, this requirement, combined with a 30 percent fee to Apple, is an unacceptable cost. Even careful developers who hire lawyers to do full-scale patent searches on potential apps surely would not expect to investigate the technology that Apple provides. Instead, they would expect (with good reason) that Apple wouldn't provide technologies in its App Store that open its developers up to liability – and/or would at least agree to defend them when a troll like Lodsys comes along.
The golden bullet would be indemnification by Apple for any use of the SDK, but given Apple's inability to predict every contingency a developer could come up with, that may not be realistic for a public company. Neither is hoping patent holding companies will restrict their demands to deep pockets, or that the system itself gets overhauled in anything approaching a reasonable time frame.
What's left for developers to do?
[EFF via Daring Fireball]
Editor-in-Chief of iMore, Executive Producer at Mobile Nations, co-host of Iterate and ZEN and TECH, cook, grappler, photon wrangler.
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If I was developer I would ignore the trolls and if they are bluffing then thats that. But if they sue then I make a statement to the precess saying these are Apple SDK it os their problem.
I'm not a lawyer, but the parts of the patent I read were very broad and confusing. I'm wondering if the reason that Apple is silent on this is because they think Lodsys has a valid claim? If so, then Apple's APIs would be the root cause of the infringement and Apple should hold the developers harmless. If not a valid claim, Apple should challenge the claim on behalf of the developers anyway. They have the legal and monetary resources, and other patent trolls would think twice before trying a similar scheme. If they just bury their head in the sand and Lodsys makes some money, every developer will see more and more FedEx envelopes arrive as every patent troll tries to cash in, eventually killing the depth and quality of available apps.
I just hope Apple is smart enough to know Lodsys is just testing the water, and a lot of people are watching to see how it plays out.
Other articles have reported that Apple (as well as Google) have licensed the patent in question, so presumably they feel it is valid, or at least not worth the hassle to challenge. Now that lodsys apparently is claiming Apple's license does not extend to cover iOS developers using Apple's required API, perhaps Apple's tune will now change.
If simple use of the API is in-itself a violation, then the violation is Apple's. If, instead, it is only how the API is used that is a violation, then that would not be Apple's responsibility.
In this case, and pre-admitting that I have no direct knowledge of the in-app purchase API or the patents at issue, if the patent is related to an app dynamically installing additional features via in-app purchase, then I wouldn't expect the API itself to be at issue. Rather, it would be the entire mechanism of using the API for the purchase and then having the app install the additional functionality. Of course, I would expect that the majority of apps that allow in-app purchase of additional features already have the features installed and simply enable them on purchase. Difficult to imagine a valid patent on that -- which unfortunately doesn't mean that's not exactly what this patent covers.
Of course, it still could be in Apple's best interest to come to the assistance of developers in certain circumstances.
All i hear is mostly conjecture from people that no little about patent law. What i really want to hear is a real Legal argument for why lodys has a valid claim or why these developers are not infringing on a patent.
merely saying they are a troll only works on tech blogs. What matters among adults and courts are facts and the law. And I'm much more concerned with what the facts and the law are. Cause right now this discussion is the blind leading the blind.
If this goes through then I would think twice before developing another app for iOS. Developers will look for alternatives if apple fails to protect them.
Why did they wait two years to say their patent was violated? The original patent was filed in 1992, it was sold to Lodsys, and filed again in 2003, or 2004. Apple had in app purchase in 2009. There was no such thing in 1992, when the original owner received the patent. So now you are violating a 17 year old patent with a product that did one even exist 17 years ago. Call me confused. That is why you see the name "patent troll" there are so many patents, if you search long enough, you are bound to find a product that may be close to one of your patents(close, not in violation), and you cry foul.
Did not exist, spell check strange correction, sorry. As far as I can see the 2004 patent was just a continuation of the original from 1992, and like I stated, there was no such thing as in app purchase until 2009.
Just because Apple have a licence for this patent, doesnt mean it has value.
They used to own a part share in the company which controlled these patents, along with many thousands of others, for a time. Their license to the whole lot comes as part of that deal.
can someone explain how apple isnt the one (potentially) at fault? they supply the SDK and also (maybe more importantly) they test and approve the app for useage in the iOS ecosystem, surely their
stamp of approvalon that app would make them complicit in some way if it is in fact a breach of patent?I will be disappointed if apple fails to extend a hand to said developers on this matter. Additionally, any developer that uses in app purchases to peddle their app's currency can go shove it where the sun doesn't shine; that crap is ridiculous.