Barely Legally

Confessions of a Moot Court Bailiff

Banned!

So there’s this company called Apple. They sell this product called the iPhone. It’s this computer that drops makes phone calls, and I’m pretty sure I’m not the only one on the planet that thinks they’re really cool.

Apple sells programs for their iPhone through this online store they run called iTunes. They’ll let you sell your programs for their product in their store, and they’ll even split the money with you. More than 100 million programs have been downloaded: some free, and some not free.

But what would the internet be without bombast, grandstanding, and brave souls exercising the right of self-defense against the vicious attacks of straw men?

Well, Apple is forbidding certain programs from being sold in the store. They have a set of guidelines that dictates what you can and can’t do with your program if you want it sold in the iTunes store. And, like most contracts you enter into by clicking a mouse, (see the EULA for every program you’ve ever installed, ever) the terms of the iTunes store give Apple sole and arbitrary discretion over what’s allowed in and what’s allowed out.

Apple has banned a number of programs. For instance, one program turned your iPhone into a whoopie cushion. Another was a comic book reader that was useless unless you downloaded pirated comic books. There were grumblings, but it’s the internet, for Pete’s sake; someone here is grumbling about everything. (First one to guess that I’m about to grumble about someone grumbling wins a cookie.)

The other day, Apple banned this really cool program that everyone really liked. What exactly it did isn’t relevant at the moment. Apple came up with an excuse to the effect of “it’s offering a feature that we should have thought to include with the iPhone.” Whether or not this was high treason on the part of Apple, whether this was because there are technical issues involved with this much data being streamed through an iPhone, or whether this was just a transparent maneuver against a perceived competitor is also not relevant.

sidebar: Also, essays conflating competitive behavior with anti-competitive behavior are irrelevant to the discussion. I don’t take Corporations until next semester, but I’m fairly certain there are no anti-trust charges pending against Apple for exerting its power over its iTunes store. There are also no anti-trust charges pending against Pepsi for refusing to sell Coca-Cola in Taco Bell restaurants (a brand owned by Pepsi). Neither of these outcomes should shock the reader. Competition is not the same thing as anti-competitive behavior.

Rather, it’s the outrage that I find outrageous. There are precious few sources of rational discussion about this whole Podcaster (for that is the name of the banned program) fiasco. In particular, there is one person who has written a popular program for the iTunes store who is making the ultimate sacrifice.

Why, Fraser Speirs is boycotting* the iTunes store from this day forth!

* Do note that he’s not actually removing his popular program from the iTunes store, just that he’s not going to bother writing any new programs for Apple to sell. His idea of boycotting is to continue to let his program earn money for both himself and Apple. Truly, never before have so few given so little for… so what?

It’s really difficult to see how this is a principled stand against a corporate giant when you’re still making money. It’s even harder to see how this is a principled stand against a corporate giant when you’re still making money for them. (Remember, Apple takes a portion of every sale.)

It’s worth noting that I certainly agree with at least one of his demands:

Publish clear and unambiguous rules for what will be accepted and what will not. I don’t even care if this is a long and detailed document, but it needs to be The Rulebook from which both sides play.

Without a simple courtesy like that, I can understand how application developers will be much more hesitant to devote a lot of time and energy into applications. In that regard, I also agree with Fraser. But the iPhone market is hard to ignore. With just a trivial amount of effort, you can make money hand over fist.

I’d be interested to see how many programs have been removed from the iTunes store, so we could see just how likely it is that a developer’s time will be wasted if his awesome program is banned from the store. Is it 1 out of 10 programs that is banned? 1 in 100? How many does an average programmer submit? 10? 100? 5?

Regardless. People are upset because it’s not just the really silly whoopie cushion programs that are being banned. This Podcaster program sounds ridiculously cool, and no one wants to come up with the next huge program that just ends up getting banned. (Not least because I’m sure designing whoopie cushion programs would drive anyone to madness.)

But Fraser: the bombast? The grandstanding? The straw men? It all really undercuts your point. To say nothing of this paragraph:

You have to wonder if Apple wants the App Store to be a museum of poorly-designed nibware written by dilettante Mac OS X/iPhone OS switcher-developers and hobbyist students. That’s what will happen if companies who intend to invest serious resources in bringing an original idea to the App Store are denied a reasonable level of confidence in their expectation of profit.</blockquote>

Truly, this plebian uprising of “dilettante switcher-developers” and “hobbyist students” doth sully the kingdom’s very name. Seriously, what do those even mean? The guy who didn’t own an Apple computer before OS X came out? The student who’s learning how to write programs? No amount of bombast will change the facts: your principled stand would be much more effective if you were actually taking a stand. Merely threatening to not write any more programs for them to sell is just pointless grandstanding.

And the whole grumbling (and my grumbling about the grumbling) reflects a deep seated dissatisfaction with the internet. You and I, Fraser, don’t have any say when it comes to computers. Forget about iTunes for a moment. We both have a Flickr account. When we signed up, there was a whole mess of text that indemnified Yahoo! from any claims we make against them for… you know, catastrophic photo sharing accidents. (Seriously, are my JPEGs going to burst into flames, guys?)

There’s not a whole lot of negotiation going on when it comes time to agree to the terms on which I’ll use Flickr, or Gmail, or Firefox, or Windows, or practically anything on a computer. The terms of the contract (and it is always* a very binding contract) are set in the technological equivalent of stone. If I don’t agree to every last term, I don’t use Gmail.

* “always” means “almost always” with respect to the law.

There is free software that comes with practically no such restrictions, but how far do you get on the internet without agreeing to someone’s terms somewhere? It’s like having a country devoid of regulations on their internet: even if you connect from Blergistan, your packets are going to pass through someplace with laws. Sure, where you’re sitting (your computer desk, or maybe in a café in Blergistan) is free, which is great. But you’re going to want to connect to something at some point.

I can’t help but wonder what law students in twenty years will say to themselves as they read some of the turn of the century licensing agreements for class. “My goodness! No wonder those barbarians argued among themselves so much on the internet! Look at the terms of these contracts.”