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Electronic Frontier Foundation Patents Software Apple

EFF Presses Apple To Indemnify Developers 93

Posted by Soulskill
from the an-apple-a-day-keeps-the-trolls-away dept.
Julie188 writes "The Electronic Frontier Foundation is calling on Apple to indemnify its developers from Lodsys — a patent troll that's alleging patent infringement on the in-app purchasing used by iOS apps. (That's the technology developed by Apple and forced on many of its developers.) The letters Lodsys has been sending out came to light on May 13th, and apparently developers have been asking Apple for help to no avail."
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EFF Presses Apple To Indemnify Developers

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  • by FlorianMueller (801981) on Saturday May 21, 2011 @08:36AM (#36201392) Homepage

    In this context I would like to strongly recommend this new mocoNews (paidContent.org) article [moconews.net] entitled "Mobile Patent War On The Little Guy Demands Response From Apple". Tom Krazit explains very well what the business issues are, including that Apple itself sues over patents quite actively, especially against Android.

    • by betterunixthanunix (980855) on Saturday May 21, 2011 @09:15AM (#36201572)
      Except that that article addresses nonexistent issues. The EFF is not demanding that Apple indemnify developers against all patent lawsuits, but rather against lawsuits relating to technologies that Apple ships with iOS and which Apple requires developers to use as part of the developer agreement. Additionally, the article claims that doing this would grant legitimacy to the Lodsys patent; but Apple already granted them legitimacy by signing an agreement with Lodsys.

      The real lesson here is for developers: don't let someone else dictate to you how you should write your software.
      • Re: (Score:1, Troll)

        It would be nice to live in a world where the platform you develop for doesn't dictate how you write the software, but in practice that isn't going to happen.

        • by betterunixthanunix (980855) on Saturday May 21, 2011 @09:26AM (#36201620)
          Really? Funny, when last I checked, I can write software using whatever programming language I want, and whatever technology is feasible, on my laptop. Nobody tells me what languages I am allowed to use or requires me to use their method of processing purchases. I can even run a different operating system with a completely different design in a virtual machine, if I feel that a different operating system would be better for developing my software.

          So where is that dictation you were talking about?
          • by Z00L00K (682162)

            Only in the [Soviet Russia] Apple World....

          • by Golddess (1361003)
            You're talking about no one requiring you to code a particular way on a particular platform.

            GP is talking about being required to code a particular way for a particular platform.

            For example:
            If you wish to develop for OSX, you are limited in your choices.
            If you wish to develop for Windows, you are limited in your choices.
            If you wish to develop for .NET, you are limited in your choices.
            If you wish to develop for a game console, you are limited in your choices.
            If you wish to develop for the web, you a
            • Not really true for the first two. I can write a Visual Basic application, bundle it with WINE and X11, and ship it for OS X. I doubt anyone would buy it, but nothing is preventing me from doing so. I can write an Objective-C application, link it with GNUstep, and ship it for Windows. I can write applications any Smalltalk for both platforms, and nothing stops me. I can distribute them on paper tape, punch cards, floppy disk, CD, DVD, or downloads from my web page, and the only thing stopping me from doing any of these is that my might have no idea what to do with some of these options.

              .NET and the web are a bit more limited, but there are third-party compilers that emit CLIR, so you can use third-party toolkits with third-party languages on .NET without anyone controlling how you distribute them, or imposing requirements on the functionality. The web is more locked down, but I've written an Objective-C to JavaScript compiler, so I can use C code in web apps if I really want to, and nothing is stopping me.

              Consoles are similar, but that's just a good reason not to develop for consoles.

              • by Golddess (1361003)

                I can write a Visual Basic application, bundle it with WINE and X11, and ship it for OS X

                My mistake, I didn't realize we were allowing for multiple virtualization layers in this discussion of coding for a particular platform. I'd still say that you coded for a Windows platform though, and that just lets you use a Windows environment on OSX.

                • WINE is not a virtualisation layer, it's just a set of libraries that implement the Win32 APIs. X11 is not a virtualisation layer either. Of course, there's nothing stopping you from including an entire VM when you ship an OS X application. In fact, some SDKs do bundle complete emulators, which can run arbitrary code. The same with Windows. In both, you can use the native APIs directly, or you can use something built on top. Most of the native APIs that most developers use are built on top of lower-le

            • by Draek (916851)

              Not really. Other than maybe game consoles (never developed for one of them), none of them ban the use of interpreters so as long as you (or typically, someone else) are willing to spend the time required to port your favorite language's compiler/runtime/whatever to said platform, you can use it to build your end-product. Hell, make it polished enough and the platform maker may even adopt it as 'semi-official' (as with most non-Java languages for the JVM).

              It may be hard to believe but really, the world outs

              • by Golddess (1361003)

                none of them ban the use of interpreters so as long as you (or typically, someone else) are willing to spend the time required to port your favorite language's compiler/runtime/whatever to said platform

                Yeah, I think I see where the confusion comes from. You and everyone else are talking about how in theory it's possible because no one is actively trying to keep you from doing those things. But I (and I believe tripleevenfall) meant that in practice, or perhaps just in a business environment, there will be limits to what you can do.

                With enough time and money you could do it however you want. But you do not always have that time and money.

            • by Carewolf (581105)

              > For example:
              > If you wish to develop for OSX, you are limited in your choices.
              Nope. Not yet, anyway

              > If you wish to develop for Windows, you are limited in your choices.
              Nope. Not in any way what so ever

              > If you wish to develop for .NET, you are limited in your choices.
              Naaa, not really. It is like saying if you develop C++ you are limited C++, in other words: Stupid

              > If you wish to develop for a game console, you are limited in your choices.
              Yes, they are like smart phones

              > If you wis

          • Just wait until all other computer manufactures start thinking the way Apple does. Then you'll know what everybody is talking about.

            • by mwvdlee (775178)

              Which disproves the point that other platforms are not like Apple's platform... how exactly?
              If and when other computer manufacturers start thinking like Apple, we're all screwed.
              But right now they don't, and you still have freedom.

            • Just wait until all other computer manufactures start thinking the way Apple does.

              If it gets rid of the 75% of stuff out there that is pure crap, I'm all for it.

          • by avatar139 (918375)

            Really? Funny, when last I checked, I can write software using whatever programming language I want, and whatever technology is feasible, on my laptop. Nobody tells me what languages I am allowed to use or requires me to use their method of processing purchases. I can even run a different operating system with a completely different design in a virtual machine, if I feel that a different operating system would be better for developing my software.

            So where is that dictation you were talking about?

            For Android, it's right here: http://developer.android.com/sdk/terms.html [android.com]

            Ultimately, no matter what mobile platform you're developing for, you do have play by some rules, so if you don't like the strictures that Apple imposes on development for their platform, then just stick to developing for a different platform who's rules you can live with!

            Personally though, speaking both as a consumer and an IT person, I have to say I prefer iOS because it may cause some extra work for the developers (and I'm speak

        • On iOS, software development environment choose you!
        • by mwvdlee (775178)

          You should step outside the Apple IOS world once in a while.
          Pretty much every other platform (including Apple's own OS-X) will give you that freedom.
          They certainly try to point you in a certain directory by providing standard libraries, tools, languages, etc, but you have a choice to ignore all of those.

      • Re: (Score:3, Informative)

        by larry bagina (561269)
        Apple didn't license that patent from Lodsys, they (as well as Google, Microsoft and many others) licensed a big basket of patents from Intellectual Ventures. That patent was later spun off to Lodsys.
        • by JAlexoi (1085785)
          +1
          A lot of companies have those patents licensed, just because they had bulk licence from IV.
        • by dlingman (1757250)
          And the fact that it was in that bucket, says nothing about validity of the patent, it's actual worth in the real world, or anything at all. Just that Apple shelled out cash to IV, and obtained a license to all the stuff in their bucket at the time.
      • by macs4all (973270)

        The real lesson here is for developers: don't let someone else dictate to you how you should write your software.

        Name an OS who's APIs won't POTENTIALLY fall victim to patent trolls.

        [crickets]

      • by MassacrE (763)

        but Apple already granted them legitimacy by signing an agreement with Lodsys.

        I believe all of the large companies had rights to the patent as part of the Intellectual Ventures portfolio, and part of the deal of the sale of the patent to Lodsys included that companies who had license to the portfolio retained the right to use the patent.

      • by Qzukk (229616)

        Additionally, the article claims that doing this would grant legitimacy to the Lodsys patent

        This. I have STILL not seen any explanation from Lodsys as to how they believe making a purchase in-app is at all related to the patent [freepatentsonline.com] they are claiming everyone needs to license:

        Primary claims:

        1. A system comprising: units of a commodity that can be used by respective users in different locations, a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way loca

  • by unity100 (970058) on Saturday May 21, 2011 @08:48AM (#36201450) Homepage Journal
    and save yourself all this shit.
    • Failing that... (Score:4, Insightful)

      by betterunixthanunix (980855) on Saturday May 21, 2011 @09:20AM (#36201594)
      Failing the abolishment of software patents, the lesson here is that the entire iOS development model spelled trouble. You are required to write your software in a particular way, using particular languages and technologies, and you have to distribute it through the App Store and give Apple a cut of your revenue. Developers should have refused such an agreement, and in the future developers should refuse similar agreements (I have no doubt that we will continue to see companies trying to exert such control over developers).
      • by peragrin (659227)

        The problem is, once IOS developers have to start to pay, android developers who use the same thing with their overboard patent will have to start to pay.

        no one is yet using windows 7 phone mobile ultimate edition yet but if those apps also use an in app upgrade button they too will fall foul of this patent.

        The best bet is to get this patent overturned.

      • by macs4all (973270)

        Failing the abolishment of software patents, the lesson here is that the entire iOS development model spelled trouble. You are required to write your software in a particular way, using particular languages and technologies, and you have to distribute it through the App Store and give Apple a cut of your revenue. Developers should have refused such an agreement, and in the future developers should refuse similar agreements (I have no doubt that we will continue to see companies trying to exert such control over developers).

        And, like all other adults, YOU are responsible for exercising ordinary diligence BEFORE you decide to develop for a particular way.

        Apple is not your parent. Grow up.

        • Re:Failing that... (Score:4, Informative)

          by michelcolman (1208008) on Saturday May 21, 2011 @01:52PM (#36203322)

          Let's see what "ordinary diligence" means according to you, then:

          1. You want people to try your software for free, then upgrade to a paying version.

          2. You read the Apple developer documentation

          3. You find the recommended way to provide this feature, literally documented by Apple, "you should do it this way".

          4. You do a full patent review for this and any other silly little feature that your app uses, digging through hundreds of thousands of patents or paying some company tens of thousands of dollars to do this for you, fully aware that you are STILL not sure you aren't violating any unpublished patents.

          5. You decide not to release the software since there are way too many applicable patents about the simplest and most obvious little features that really shouldn't be patentable but have been patented nevertheless.

          So basically, what you are saying is that everybody should just stop developing software. That's just ordinary diligence.

          • by macs4all (973270)

            4. You do a full patent review for this and any other silly little feature that your app uses, digging through hundreds of thousands of patents or paying some company tens of thousands of dollars to do this for you, fully aware that you are STILL not sure you aren't violating any unpublished patents.

            5. You decide not to release the software since there are way too many applicable patents about the simplest and most obvious little features that really shouldn't be patentable but have been patented nevertheless.

            So basically, what you are saying is that everybody should just stop developing software. That's just ordinary diligence.

            So, instead, you want Apple to do all that due diligence for you, and if they cannot forsee every single future occurrence, then THEY get to assume ALL of YOUR risk (even though you are the one the one that:

            1. Made the decision to develop for iOS.

            2. Made the decision what software to develop.

            3. Get the Lion's Share (no pun) of the profits.

            So, if you do not wish to accept any personal responsibility for the consequences of your decisions, then yes: You should not be developing software. For anyone.

            • by Nick Ives (317)

              So, instead, you want Apple to do all that due diligence for you, and if they cannot forsee every single future occurrence, then THEY get to assume ALL of YOUR risk

              Except in this instance, it seems to be the case that Apple was successfully trolled by Lodesys and only licensed the patent for themselves, rather than all the downstream developers they knew they were distributing software too.

              To my mind, that's a clear demonstration of bad faith and I would hope that these independent App Store developers manage to get something out of Apple.

    • by Chewbacon (797801)
      I think that's the consensus from the tech industry. These companies have no intention of legitimately profiting from their patents. They are not acting in good faith with these patents. You want to talk about stifling innovation? These guys are. This is comparable to cyber squatting and legislature needs to open their eyes to it.
      • by unity100 (970058)
        its not because those companies are not 'honestly' profiting from their patents. its that the system is crooked from the start.

        thought is a fluid thing that changes shape and leads to other thought. once you allow ownership of any thought, it creates chain reactions.
  • As soon as I saw the headline I thought "What is the EFF on Apple's case for this time?". If I had an annoying neighbor that harassed me about the length of my grass, the hours I mowed the lawn, how many cars I had parked in the drive way, etc. I'd sure as hell ignore him when he came over asking for help.

    • The EFF doesn't need Apple's help, the developers who write the apps that make the iP* platforms a success do.

      But maybe when they lose and developers at large start being afraid of writing apps for their platforms maybe Apple will notice.

      • by macs4all (973270)

        The EFF doesn't need Apple's help, the developers who write the apps that make the iP* platforms a success do.

        But maybe when they lose and developers at large start being afraid of writing apps for their platforms maybe Apple will notice.

        First they came for the iOS developers, and I didn't speak out because I wasn't an iOS developer... [apologies to Pastor Martin Neimoller]

    • Re:Apple vs EFF? (Score:4, Insightful)

      by Cid Highwind (9258) on Saturday May 21, 2011 @10:42AM (#36202066) Homepage

      "If I had an annoying neighbor that harassed me about the length of my grass, the hours I mowed the lawn, how many cars I had parked in the drive way, etc..."

      ...and he came over to let you know someone was burgling your garage, you would tell him to fuck right off, because he's annoying?

    • by Draek (916851)

      Agreed, and I think it speaks very well of the EFF that they're still helping Apple in spite of their past attitude.

  • Apple! You are never wrong! Everything that is done by Apple is done under a grand design. Apple developers need to "be tested" from time to time to prove their loyalty and fidelity. Of course, if they have been sinning, this is not a test, but a punishment.

  • by Anonymous Coward

    I'm more of an idiot caveman than anything else but IF Apple did not "force" developers to use the in-app purchasing, and the update feature (which is what I understood the gist of the threat is about) then wouldn't each of the developers be forced to deal with this company anyhow?

    Unless I'm wrong, even if developers of apps do go it alone, without using Apple or Google or whatever, the patent claim still applies to most applications that connect to the web for updates and purchases. It would seem like eve

  • Tax laws (Score:4, Interesting)

    by CODiNE (27417) on Saturday May 21, 2011 @09:24AM (#36201614) Homepage

    You know when one posts an app to the App store they are first required to fill out tax information including whether or not Apple should withhold for taxes.

    Couldn't it be argued that app developers are in effect employees of Apple and already indemnified?

    For example if IBM has a license to use a patent, and they call in an outside contractor to work on a project using that patent... you couldn't sue the contractor since he was working for IBM.

    • That is something the courts will have to decide, and the problem is that many developers lack the means to actually fight Lodsys in court. Yes, all it would take is one, but Lodsys is asking for a small fraction of the developers' revenue, and most if not all will either acquiesce or just ditch iOS for a platform that gives them a little more freedom.
      • by Anonymous Coward

        ditch iOS? Then I guess Apple will just buy the patent troll to keep developers.

        • by Adambomb (118938)

          At which point, patent trolling within these forms of common distribution setups like the app store becomes a potential cash cow business model for such unethical companies.

          This would NOT be in their best interest at all.

    • Re:Tax laws (Score:4, Informative)

      by larry bagina (561269) on Saturday May 21, 2011 @09:50AM (#36201760) Journal

      Apple does not withhold taxes in the US.

      I filled out the US tax form. What will be my tax treaty withholding rate?

      Apple does not withhold taxes from proceeds paid from sales on the U.S. Store. See the IRS website for more information about types of income subject to U.S. withholding tax and withholding rates under tax treaties.

      Will Apple send a U.S. Tax Form 1099 for my sales?

      No. Sales on the App Store are sales by you, the developer of copyrighted works, to end users. Therefore, Apple takes the position that payments made to you for these sales are payments for products or goods, which are specifically exempt from reporting on Form 1099 even though the payments may be taxable income to you.

      You are responsible for determining your own tax obligations with respect to these payments. If you are uncertain of your tax obligations, we recommend that you consult with a tax professional.

      You could argue that third party app developers are actually employees. You can also argue that wearing Nike shoes makes you a Nike employee.

    • by iamhassi (659463)
      Depends on the contractor. If it's an independent contractor than yes you can sue them, they are responsible for their own actions, but companies are not suppose to take taxes out of the pay of independent contractors either and if Apple is taking taxes then that would make them employees
    • by GauteL (29207)

      "Couldn't it be argued that app developers are in effect employees of Apple and already indemnified?"

      Eh.. in which case all the copyright for the apps would belong to Apple, the employer. You can hardly have it both ways, "oh, we're only employees of Apple in terms of patent disputes....", so I doubt this is a path app developers would like to pursue.

  • by Anonymous Coward

    If Apple steps up to the plate and really does try to help developers, what will all the fanboys say about it? Most of them are used to getting the wool pulled over their eyes on overpriced equipment and "shiny" new versions of the same piece of hardware.

    If Apple actually tried to help someone other than Apple for a change i would be totally shocked

    • What will the haters say when Apple are investigating the Lodsys patent and what they can do ? Oh that is right they are doing this at the moment.

      Apple studies patent infringement claims by Lodsys [guardian.co.uk]

      But then again it is slashdot where hate and FUD prevails over truth and logic. Funny how Microsoft tactics and shenanigans are so popular within the slashdot crowd.

      Oh and btw Google and Microsoft also has a license (like Apple) so thinking this is only or could be only an IOS/Apple problem is very very na
  • The patent can be licensed for 0.575% of revenue. Apple, on the other hand, demands 30% of third-party sales revenue for a transaction which doesn't involve them.

    • by michelcolman (1208008) on Saturday May 21, 2011 @02:01PM (#36203384)

      Why not?

      0.575% for having an update mechanism
      0.575% for a button that displays settings
      0.575% for using a different color for certain text
      etc...

      This has to be stopped before it goes to far (which it already has).

  • by kimvette (919543) on Saturday May 21, 2011 @11:12AM (#36202264) Homepage Journal

    This patent needs killed.

    http://en.wikipedia.org/wiki/All_elements_test [wikipedia.org]

    It fails the obviousness test, and it also fails prior art. After all, the button is merely a hyperlink to an app purchase page, and that has been present in shareware and trialware applications for nearly two full decades, and that in itself is a very minor update over older shareware which displayed an ASCII order form which cvould be printed and mailed to the vendor to purchase the full version of the application.

    This is not an invention deserving protection as patent law defines it, and this patent surely does not meet the Constitutional guideline:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    because granting a government-enforced monopoly on prior art does not "promote the progress of Science and useful Arts" but hinders such progress.

    I'd love to choke the hell out of the next wank who takes an old idea and files a patent for "$foo, on a $bar device" then sues all the little guys using that prior art. Unfortunately killing those who need killing is illegal these days. Progress is great and all, but isn't it nice sometimes to dream of frontier law making a comeback?

    This is why China and everyone else is leaping ahead: American companies have long since forgotten the principle of long term investments and real engineering and science R&D but have instead decided to become bottom feeders and litigate rather than innovate, and pat themselves on the back for calling litigation innovation. Disgusting. I often wonder if I should go back to school and become an attorney so I can fight against the insanity of IP law.

    • This patent needs killed.

      http://en.wikipedia.org/wiki/All_elements_test [wikipedia.org]

      It fails the obviousness test, and it also fails prior art.

      See, you start by citing the all elements test, so it makes me think you know what you're talking about, and then you say it "fails prior art." What does that even mean?

      Is this obvious over prior art? If so, what art? What reference or combination of references teaches or suggests each and every element of the claims?

      After all, the button is merely a hyperlink to an app purchase page, and that has been present in shareware and trialware applications for nearly two full decades, and that in itself is a very minor update over older shareware which displayed an ASCII order form which cvould be printed and mailed to the vendor to purchase the full version of the application.

      And if the claim was "1. A button" or "1. A hyperlink to an app purchase page," you'd be right, but it's not. The "all elements" test is named that because it refers to "all elements in the cl

      • I'd love to choke the hell out of the next wank who takes an old idea and files a patent for "$foo, on a $bar device" then sues all the little guys using that prior art.

        Is $foo known? Is $bar known? Then the combination - "all elements" - is unpatentable. But, contrary to your beliefs, there are no patents that claim "$foo, on a $bar device."

        Oh yeah? What about all those patents on doing $foo on the internet? or on the web? or on a wireless device?

        I do not know what is written in patent law, but in practice obvious combinations of known things are patented all the time, such as "using $foo to solve problem $bar" when $foo is one of the first couple things that an engineer would think of when faced with problem $bar. I recall reading a patent on using regular expressions and logical operators (I kid you not) to do network intrusion detection

        • I'd love to choke the hell out of the next wank who takes an old idea and files a patent for "$foo, on a $bar device" then sues all the little guys using that prior art.

          Is $foo known? Is $bar known? Then the combination - "all elements" - is unpatentable. But, contrary to your beliefs, there are no patents that claim "$foo, on a $bar device."

          Oh yeah? What about all those patents on doing $foo on the internet? or on the web? or on a wireless device?

          There aren't any. Period.

          There are some patents which have dependent claims that say "2. The method of claim 1, but wherein the network is the Internet," but that's just a narrowing of claim 1. This is a doctrine known as claim differentiation - if claim 1 says "A method of doing X via a network," and claim 2 says the network is the Internet, then all that means is that claim 1 is broader and may include non-Internet networks. That's it - the dependent claim is within the scope of the independent claim.

          An

  • Why is EFF concerned about how a closed-everything company treats its associates? How is this EFF's concern?

  • To me, Apple seems to have started on another "program" to get rid of third party involvement with their platform, just like they did when they removed 3rd party hardware developers. Except this time it's 3rd party software developers. The barriers they put in front of them are staggering, and they seem to be an euphemistic way of telling them "get out of here, we don't want you"

    Perhaps it's all another grand plan conceived by Steve Jobs.

  • So, you didn't do your research and violated a patent

    Now you expect Apple to bail you out?

    Why doesn't anyone just buy a license? It's painfully cheap, something alone the lines of a COUPLE CENTS per app sold for a $2 app.

    I guess we should just allow the 'little guys' to replicate patent functionality as much as they want without fear of consequences. Talk about stopping innovation... nobody will bother with innovation anymore because it no longer would be profitable.. because any functionality you devise

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