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?