Friday, June 10, 2011

The Fortified Garden

It is from their foes, not their friends, that cities learn the lesson of building high walls.
- Aristophanes (from the "Masonry" entry in Civilization IV)

Back around the time when Apple began forcibly establishing control over its iPhone ecosystem (it wasn't yet called iOS at that point), critics of the move referred to the resulting environment as a 'walled garden', one where users were 'trapped' to only use Apple's technology in ways approved by Apple. Apple then extended their control to monitoring what tools developers were using to provide apps to that ecosystem -- only Apple-provided application programming interfaces and libraries could be used, or the app couldn't be carried in Apple's App Store.

Critics of Apple's position liked to argue that Apple's walled garden wasn't sustainable -- that developers would chafe under the restrictions and bolt for the greener, more open pastures of Android, and that users, following the developers, would do likewise. Frequently, the rhetoric of 'freedom' is used, as if those criticizing Apple are all in favor of openness and transparency.

There have been a few folks who've defended the walled garden, mainly from a user perspective and mainly because of security. Hardly anyone, though, had bothered to point out to developers why a walled garden might be superior for them.

Turns out the right analogy isn't a walled garden, but a fortified one. That's what Apple has built, and it's exactly what small, independent developers need.

Just over a month ago, a company called Lodsys LLC filed a lawsuit in an East Texas court against seven small-to-tiny iOS developers over a patent it holds regarding a method of processing purchase transactions within an application. Lodsys didn't invent the patent -- it purchased it from its inventor as part of a 'portfolio' of intellectual property, and is now trying to make that investment pay by pursuing what it believes are infringements of those patents. At the time, the expectation was that Lodsys might use those developers' communications with Apple as a way of incorporating Apple into the lawsuit, adding the bigger company's deep pockets to their potential payout. Some expected that Apple would help with the developers' legal battle or even pursue other actions sympathetic to the developers' position, but would likely stay out of the suit itself.

That's...not quite what happened. (Note: most of the links in the next few paragraphs regarding the legal situation come from the excellent Free and Open Source Software Patents blog.)

First off, Lodsys, as if trying to ward off any Apple involvement in the suit, affirmed that Apple had purchased a valid license covering the patent in question and that as such Apple was not a target of the suit.

Apple then responded with a strong cease-and-desist letter directing Lodsys to withdraw its complaints against its app developers, asserting that the rights it has as a license holder allow it to provide the licensed technology to its developers.

Lodsys published a letter disagreeing with Apple's position and carried on with their lawsuit, which was unsurprising.

Then, Apple did something that pretty much nobody expected -- they filed a claim in the same East Texas court asking to intervene and be added to the lawsuit as a defendant. They're not just sending 'assistance' -- Apple will actually have a legal team in the courtroom assisting with the defense of their app developers.

Apple's defense against Lodsys's claims is that, since Apple has a license to Lodsys's technology (which Lodsys has already asserted to be true on their own website), and since the developers aren't creating their own code for transactions, but using Apple's provided APIs that contain that technology, and since the transactions all occur on Apple's own App Store, and since they're used to send apps to devices that Apple has manufactured and sold expressly for the purpose, that Lodsys has already been paid -- by Apple -- for the use of their patents, and that Lodsys can no more go to the developers and ask for more money than a farmer can come to your house and demand 50 cents an ear for the sweet corn you bought at the grocery store.

That defense brings up two very interesting points:

1. Is this the real reason Apple was so adamant about not allowing third-party APIs in iOS?

The timing of Apple's announcement about changes to their developer agreement prohibiting 'third-party APIs' for iOS development made many believe their motivation for doing so was to screw Adobe, who was just about to come out with a set of third-party APIs to do just that. But what if Adobe's announcement simply reminded Apple Legal that allowing third-party APIs (which might or might not have purchased valid licenses for the Lodsys transaction patent) would weaken Apple's legal defense against attacks against their developers?

2. Do Google's Android developers have the same kind of protection?

This isn't just an academic question -- Lodsys is also filing lawsuits against Android developers for violating the same patents Apple is defending their devs against. Given that Google rejected an offer from Sun to license Java for use in their Android OS (scroll down to "Google's Rejection of Sun's Licensing Offer"), how likely do you think it is that Google decided to send cash to a small IP holding company, just in case that company tried suing their developers?

Google's independent Android app developers might feel a bit safer if they had walls to protect them like Apple's developers do.

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