Big Win For Fair Use: Jury Says Google's Use Of Java API's Was Fair Use... On To The Appeal

from the ain't-done-yet dept

This is somewhat surprising, but good: after a few days of deliberation, the jury in the redo of the Oracle v. Google case concerning Google's use of Java's APIs in Android has resulted in a jury verdict finding that Google's use was allowed as fair use. There's not much to unpack here beyond what we've already written about the case. The jury form was a simple question of whether or not the use was covered by fair use, with a "Yes" check box meaning "finding for Google" and a "No" check box finding for Oracle The jury checked yes.

So, a few quick thoughts:

1. All things considered this is a good ruling in that it doesn't lead to a crazy situation that undermines the reimplementation of APIs and other structures in different software, so *phew*.
2. This still sucks because fair use was the wrong vehicle. The APIs never should have been considered copyright-eligible in the first place, just as the judge in the original trial explained in his very detailed opinion. It's only because an excessively confused federal circuit appeals court mucked things up, that the case had to go back down and be redone over fair use.
3. The trial itself was a weird one, because they weren't really allowed to talk about the first trial and how a very large number of people in the tech industry didn't think that APIs were covered by copyright at all. So that resulted in some weird conversations to explain why no one really thought this was infringing. They couldn't say no one thought APIs were covered by copyright, so they had to talk about "open" and "free" in ways that were slightly misleading.
4. If anything, this may be the most important fair use case to turn on factor 2, "the nature of the copyrighted work." That's a factor that rarely is a very big deal, but without being able to (re)challenge the copyrightability, the focus was mostly on the nature of APIs and how the tech industry viewed them as free to be reused.
5. Of course, no matter what the verdict was there would be an appeal, and that's absolutely true. Oracle will appeal. But it does make it more difficult to appeal. Oracle will have to challenge specific aspects of things, and will likely focus on the jury instructions, which it will argue unfairly biased the jury or something along those lines.
6. The Court of Appeals of the Federal Circuit (CAFC) is still a disaster, and while I hope they don't, there's still a decent chance they'll end up siding with Oracle on appeal. Remember, CAFC is a court that normally focuses on patent laws and has a long and disgraceful history of loving to expand intellectual property and believing, incorrectly, that any kind of use is "theft."
7. But, in the meantime, this at least lifts something of a cloud over the industry, and we can hope that (1) CAFC will get it right and if they don't (2) that the Supreme Court will fix it, rather than ignore it, next time around.

Overall, a good result of a bad process and a confused judicial system. For now.

Filed Under: android, api, cafc, copyright, fair use, java
Companies: google, oracle

EU Officially Goes After Google's Android On Antitrust Grounds

from the where's-the-beef? dept

This was widely expected, but the EU Commission, led by Competition Commissioner Margrethe Vestager, has officially announced that it's going after Google over some of its practices concerning Android. This comes just a day after Canadian antitrust officials went in the other direction, finding no evidence that Google's activities stifle competition. The EU has a few specific concerns about Android:

The Commission's preliminary view is that Google has implemented a strategy on mobile devices to preserve and strengthen its dominance in general internet search. First, the practices mean that Google Search is pre-installed and set as the default, or exclusive, search service on most Android devices sold in Europe. Second, the practices appear to close off ways for rival search engines to access the market, via competing mobile browsers and operating systems. In addition, they also seem to harm consumers by stifling competition and restricting innovation in the wider mobile space.

I definitely worry about monopolistic practices by incumbent players crowding out startups and innovation, so I was keen to dig in on the details here, but they seem oddly... lacking. I've noted in the past that the EU tends to view antitrust through a fairly different lens than the US does, and perhaps that's the issue here. This is a broad generalization, but for the most part, the US focuses on whether or not practices harm consumers. The EU tends to focus on whether or not a company is really big. I think the US standard makes a lot more sense.

Let's dig in to the specific complaints raised by the EU, saying each of these practices violated antitrust laws:

requiring manufacturers to pre-install Google Search and Google's Chrome browser and requiring them to set Google Search as default search service on their devices, as a condition to license certain Google proprietary apps;

Many people have compared this to the case against Microsoft from the early 2000s, in which it got dinged for making Internet Explorer the default. Of course, a quick retort on that is: where is Internet Explorer in the browser market today? It's basically a non-entity, and it wasn't because of any antitrust penalties (which were basically wrist slaps). And, either way it appears that the issue here with Google is that it requires all of its core services to be bundled together: so if you want to offer the Google Play Store, then you have to also offer the other pieces of the Google app suite so that they work well together. But, of course, this also doesn't stop phone makers or service providers from adding their own apps as well. I now have a bloat-free Android phone running Cyanogenmod, but back when I had a Samsung S4 on Sprint, it came with a ton of bloatware from both Samsung and Sprint (and, frankly, all of it was useless and annoying).

Perhaps there's an issue with making Google search the default, but is anyone actually harmed by having Google's search as the (easily changed) default on an Android phone? It certainly seems like Apple's iOS ecosystem is a lot more restrictive. At least with Google you can route around Google's app store and sideload apps easily or use alternative app stores. I frequently use Amazon's app store, for example.

preventing manufacturers from selling smart mobile devices running on competing operating systems based on the Android open source code;

This is the one prong (out of three) that at least seems worth investigating more. I can understand Google's position -- that if you're offering Google's suite of apps, you need to offer Google's version of Android to make sure everything works together well -- but this seems like an unnecessary condition for Google to include in those agreements. The simple fact is that most manufacturers are likely to want to go with a stock Android anyway, and just pile on their own customizations and bloatware. In most cases, there isn't going to be that much desire for manufacturers to use an Android fork. But, if they do... so what? I don't really understand why Google prevents manufacturers from choosing to offer different flavors of Android, but I'm also not sure that this is an antitrust issue.

giving financial incentives to manufacturers and mobile network operators on condition that they exclusively pre-install Google Search on their devices.

This one probably confuses me the most. This is just a business deal for installing software on phones. For years, Google paid Mozilla to be its default search in Firefox, and then Yahoo outbid it to become the default. That's how business works. Google isn't leveraging its market position here -- it's just doing a deal. The EU claims that its issue is "not with financial incentives in general but with the conditions associated with Google's financial incentives, in particular with the condition that the financial incentive is not paid if any other search provider than Google Search is pre-installed on smart mobile devices." But... isn't that the nature of the deal? If you're doing a business deal to be the exclusive search provider, then, shouldn't you be the exclusive search provider?

It will obviously be worth watching how all of this plays out. The EU has made it clear for a while that it has it in for Google, so if I had to predict, this process won't go well for Google.

Frankly, if I were Google, I probably would have dropped a lot of the exclusivity requirements. I know they're in a race to see who will get access to the most data, but let the apps and services compete and see who wins out. Google's app ecosystem does well because it tends to be pretty good. Google could have avoided at least some of this fight by just trusting its own services to win out, rather than pushing for certain defaults and exclusivities. Some others have made this point as well:

I'm pretty sure Google can survive and come out the winner. The best of its products -- that ones that have the most users -- are excellent. People won't stop using Google Maps just because it isn't preinstalled on their phones. It's among the top 10 most downloaded applications in Apple's App Store because iPhone users often prefer it to Apple's own map software. Chrome is in the top 100 most downloaded apps even though it's impossible to change the default browser in iOS from Apple's Safari without "jailbreaking" the device to untether it from Apple support.

Google's search engine, too, wouldn't be dominant if it didn't index more pages than competitors and produce better results. YouTube is a must-have app, while Google's cloud office services are free, unlike, say, Microsoft's, and they work just as well.

These are great, competitive products. They don't really need the extra push from restrictive deals between Google and phone manufacturers. Google's brand name is strong with those who buy Android phones, and, given a choice, they are likely to prefer Google products rather than spend time researching alternatives. The company may need to spend a bit more on advertising its products in a free-choice situation, but that won't break the bank because the apps are already hugely popular.

But what Google should do, and what the EU should force it to do, are different questions. I'd much prefer that Google take a more open approach to these things, but I'm not convinced that we want bureaucrats deciding for the company exactly what Google's approach on the mobile phone should be.

Filed Under: android, antitrust, bundling, defaults, eu, eu commission, margrethe vestager
Companies: google

Singer Sues Google For Not Asking Her Permission To Use A Licensed Song In Its Cell Phone Commercial

from the so-much-stupid-and-so-many-layers-of-permission dept

Darlene Love, the voice on the Phil Spector-produced hit "He's A Rebel," is suing Google and its ad producer, 72 & Sunny, for violating her publicity rights by using a song she recorded in one of its ads without her permission.

The lawsuit seems to revolve around California's much-maligned "right of publicity" law, which allows plaintiffs to sue entities for using pretty much anything about them, rather than just for bog standard copyright infringement.

That's going to be key because it seems clear Google cleared the rights to use a song of hers in its Nexus ads. That would just leave the extra "permission" Love feels she's been screwed out of: the "right" to block Google from using a legally-licensed track.

A voice does not end up in a commercial advertisement by accident. Rather, a number of people are involved in the creation of commercials. The voice of a famous performer, singing a famous song is selected for the express purpose of trading on the performer’s goodwill. Defendants consciously and deliberately selected Love’s vocal performance of It’s a Marshmallow World for their commercials.

However, Defendants refused to take any steps to obtain Love’s consent and had no reason to believe she had or would consent to such use. Instead, Defendants took deliberate measures to evade contacting her or obtaining her permission.

Love's voice was used, as it was part of the licensed track. Her goodwill remained where it always was -- loaded like a spring trap, apparently. She accuses Google of deliberately using a non-union ad producer to ensure her union-granted "rights" (whatever they are…) were routed around.

An honest company, doing business in good faith, would not attempt to deprive Love of the benefits of the union protection and would have engaged a SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) would receive at minimum, the union-mandated benefits.

So… medical coverage? Prevailing wages? This part isn't explicitly spelled out, but Eriq Gardner points out that union members may be eligible for separate payments. But Love's lawsuit never claims Google refused to pay her. She only alleges it did not seek her permission to use her "goodwill."

Defendants actions were despicable and in conscious disregard of Love’s rights. They turned her into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products.

That's a stretch. It's obvious Google chose the song for its lyrics (advertising a new phone containing its "Marshmallow" version of the Android operating system), rather than for Darlene Love's $75,000-worth of "goodwill."

Love gets her shots in at the nationally-acclaimed ad agency as well, claiming it colluded with Google to screw her out of something the lawsuit fails to specifically name. (But apparently worth $75,000+)

Google engages in anti-labor advertising practices and in an effort to harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the protection of collective bargaining agreements, without themselves becoming signatories and complying with the union-mandated obligations for the reuse of phonograph records in commercials.

[...]

Google’s conduct was so loathsome that it intentionally hired a disreputable non-union affiliated advertising company and the two of them deprived Love of her union protections, all to enrich themselves at her expense.

As you can see, some parts of the lawsuit read like someone's emotional blog post and -- I can't state this enough -- there are no accusations in the filing that Love did not receive compensation for the licensed use of her work. The agreement she cites as the basis for her beef with Google and its "scab" ad agency says nothing about seeking an artist's permission. It only notes they may be entitled to an additional, separate royalty. Nowhere in the suit does Love claim she did not receive the royalties she was entitled to. Instead, she's trying to use a bad law to extract $75,000 from Google simply because if they'd asked if she would like to be in its ad, she would have said no.

Can she win this? Anything's possible. The unauthorized use of someone's likeness -- which includes their voice -- can be considered a violation of the right of publicity under the local law. There's a good reason why she's brought this lawsuit in California, rather than New York, where she lives and Google has an office. In California, her suit isn't pre-empted by federal law, which means she can use the friendlier local law to pursue damages.

But she'll have to make a stronger case that Google intentionally traded her goodwill for thousands of dollars -- rather than simply licensed a song with "marshmallow" in the lyrics. It really seems like her beef should be with her union for not ensuring her the chance to reject the use, rather than Google, which apparently paid the licensing fees and handled everything correctly on its end of the deal.

Filed Under: android, copyright, darlene love, licensing, marshmallow, marshmallow world, music, publicity rights, unions
Companies: 72 & sunny, google

Fanboy Fight: How One Apple/Android Argument Ended In A Stabbing

from the stop-it dept

Every one of us has already had this fight at some point: Apple or Android? The two dominant players in the mobile space carry with them very loyal fanbases who, for some reason, like to spar off with one another over whose tech-daddy could beat up the other. The companies compete with the same level of petty at times, which doesn't help. Apple screws around with text messages from Android users, Android pokes back at Apple over the controlling hand it has in its app store, and the two companies spend a great deal of time in legal battles because of course they do. C'mon, guys, can't we all just spend our time pointing and laughing at Windows Mobile?

Apparently not, considering the report that one recent Android/Apple argument concluded with both combatants stabbing the hell out of each other with broken glasses.

Tulsa’s Channel 8 reports that police were called to a local apartment complex at around 1:00am on the morning of April 17 to investigate at least one report of a bloody person wandering around the parking lot. According to the Tulsa World, police found roommates Jiro Mendez and Elias Ecevo each in some distress—Mendez was the man in the parking lot and was covered in scratches and wounds, while Ecevo, similarly wounded, apparently had stayed inside their apartment.

The World indicates that Mendez told police that the wounds resulted from an argument between the roommates, which started over which roommate had the better smartphone—Apple or Android—and ended with both roommates allegedly stabbing each other with broken glass bottles, and Ecevo allegedly stealing Mendez’s car (police found the car near the apartment, with blood in the interior). Perhaps unsurprisingly, alcohol appears to have been a factor in the fight.

Yeah, no kidding. I have my brand loyalty, too, but I'm pretty sure I wouldn't feel so offended at a roommate's opinion of my phone that I felt I had to avenge the inanimate object by getting all stabby. Both men ended up getting arrested and were sent to the hospital to have their wounds treated. In a perfect world, they would be laid up next to each other, Instagram-selfying from their beds with comments about how awesome the pictures from their respective phones looked.

Either way, I'm guessing there might be changes to their lease coming shortly.

Filed Under: android, fanboys, fights, ios, stabbing
Companies: apple, google

Copyright Bots Kill App Over 'Potentially Infringing' Images, Follow This Up By Blocking App For Use Of CC/Public Domain Images

from the and-fair-use-is-nowhere-to-be-found dept

With bots performing all sorts of intellectual property policing these days, fair use considerations are completely off the table. Nuances that can't be handled by a bot should theoretically be turned over to a human being in disputed cases. Unfortunately, dispute processes are often handled in an automated fashion, leading to even more problems.

Tolriq Yatse, the developer of a popular Xbox Media Center (XMBC) remote control app for Android phones, ran into this very problem with Google's Play Store, which suddenly dumped his app over "intellectual property violations" after more than 2 years of trouble-free listing. This might have been a quick fix if Google had been more forthcoming with details, but all Yatse received was a brief notice as his app was removed from the Play store.

Nothing was changed at all apart filling the new forced content rating form and suddenly lost all my revenues.

I hope someone human answer with details soon, but I'm joining the anger from all developers around about how #Google treat devs, take 30% share without problem but certainly do not do support or act as human when killing someone.

His complaints reached his fans and customers, who then made their presence felt. This finally prompted a Google human to give Yatse the details he needed so he could fix his app and get it relisted.

Hi Tolriq,

Thank you for your additional comments.

As previously explained, your promotional images include content that you do not appear to have permission to distribute. For example, images related to films are most likely protected by the various studios that produced and released them. It is reasonable to assume that these would not be made legally available in public domain or via Creative Commons as most studios are extremely protective of their intellectual property. The same could be said of images from various TV series…

This part of Google's response refers to screenshots used in the app's listing. They used to look something like this…


The images used here are only indicative of the app's capabilities. Even if (obviously) unlicensed, the app doesn't promise anything more than control of XBMC content. It doesn't promise access to studios' offerings or otherwise act as a movie/TV show portal. In this context, the movie posters displayed in the screenshots would appear to fall under "fair use." Google's response to Yatse indicates that, even with a human now involved, the Play Store won't tolerate the use of unlicensed images in "promotional" screenshots.

In fact, fair use isn't even discussed. Instead, Google asked Yatse to prove ownership of the disputed artwork before the app could be relisted.

If you are able to prove otherwise, either via direct authorization from a studio representative or the location where you sourced these images (public domain and/or Creative Commons), we could review that information and reconsider the merits of this case.

The motivating factor for this non-consideration is potential litigation, according to the Google Play Team.

This may represent a change from two years ago in that most studios today will file complaints over use of their content unless someone has entered into an agreement with them on some level, and that should not come as a surprise to you.

Even with a direct response, there are still some gray areas the developer is left to address himself.

We are unable to provide specific guidance as to which images may be allowed, but we trust that you will use your best judgment based on what we have mentioned above and in previous communications.

As Yatse points out, this isn't good news for developers.

The answer is very interesting for all Google Play developers :

- Google will remove your application on suspicions and not on real facts.
- No human will check what you upload or say.
- It's nearly impossible to have a real contact and support.
- You need to try to fix problem yourself without details and hope to have it fixed before ban. (Very hard when in fact there's no problem)

Google Play has moved to preemptive takedowns, unprompted by studio complaints. This isn't a good thing. It may protect Google (but only slightly, considering the studios' ongoing antipathy towards the tech company) but it does nothing for developers whose sales it takes a portion of.

In response, Yatse has swapped out the offending artwork for CC-licensed and public domain works. But even that wasn't enough for the Google bots. Those images had to be removed before his app was approved for relisting.

#Yatse is now back on Play Store, without any images until I can figure out what the Google bot does not like in open sources ones.

This understandably limits his options and makes it much harder to convey the app's functionality. Here are the screenshots currently available at Google Play, which show that Yatse (the app) is probably some sort of remote control program and has some color options.


So, based on no complaints from studios or other rights holders, an app comes down. And even with the use of properly-licensed images, it fails to be reinstated. And throughout all of the discussions, fair use isn't mentioned a single time. That's the reality of preemptive IP policing, and it's unlikely to change anytime soon.

Filed Under: android, apps, copyright, copyright police, google play, xmbc
Companies: google

Disappointing: Google Not Yet Requiring Phone Makers To Encrypt By Default

from the get-things-up-to-speed dept

Well, this is disappointing. Back in September, we were happy to see both Apple and Google announced that their mobile platforms would be encrypted by default (for local storage, not for data transmissions), which has kicked off something of a new round of Crypto Wars, as law enforcement types have shoved each other aside to spread as much possible FUD about the "dangers" of mobile encryption (ignoring that they also recommend mobile encryption to keep your data safe).

However, as Ars Technica reported earlier this week, it appears that while Google is encrypting by default on its own Nexus phones that have the latest Android (Lollipop), it slightly eased back the requirements for its OEM partners such as Motorola and Samsung who make their own devices. Default encryption is now "very strongly RECOMMENDED" rather than required. And even with that "very strong RECOMMENDATION," it appears that neither Samsung or Motorola are enabling default encryption on its latest devices.

While some will likely jump to the conclusion that law enforcement pressure is at work here, a much more likely explanation is just the performance drag created by encryption. Last fall, Anandtech did some benchmarking of the Nexus 6 both with encryption on and off, and as the site itself says, the results are "not pretty." Given the competitive market, there's a decent chance that the big phone manufacturers didn't want to get bad benchmark ratings when phones are compared, and those made the decision to go against the "very strong recommendation."

Hopefully this gets sorted out quickly, as phonemakers can optimize new phones for encryption. And, honestly, as the Anandtech report itself notes, these benchmarks are basically meaningless for real world performance:

The real question we have to ask is whether or not any of these storage benchmarks really matter on a mobile device. After all, the number of intensive storage I/O operations being done on smartphones and tablets is still relatively low, and some of the situations where NAND slowdowns are really going to have an effect can be offset by holding things in memory.

But, it appears, while mobile phone makers don't want to take the chance of bad benchmarks hurting their reputation, they're less concerned about leaving consumers' data exposed.

It's disappointing that this is where things are today, after so much focus on default encryption just a few months ago, but hopefully it's just a temporary situation and we'll get to default encryption very, very soon.

Filed Under: android, benchmarks, encryption, mobile encryption, oems, privacy
Companies: google, motorola, samsung

Green Bubbles: How Apple Quietly Gets iPhone Users To Hate Android Users

from the design-choices-matter dept

Paul Ford, once again, has written up something fascinating. He discusses something I had no idea happened: when an iPhone user texts with another iPhone user using iMessage, the outgoing texts appear in calm blue bubbles. When an iPhone user texts with a non-iPhone user (or an iPhone user using something other than iMessage -- meaning mainly Android users, obviously), those outgoing texts are in a harsh green. Here are the two examples Paul shows, starting with the iPhone to iPhone: And then the Android to iPhone: As noted, I had no idea that this happened, because I don't own an iPhone. There is one slight functional reason for this: users may have to pay for SMS messages, but not for iMessages, and thus it could have an impact on a bill. But here's the more interesting tidbit, which is the crux of Ford's article: lots of people absolutely hate those green bubbles. As he notes, if you do a Twitter search on "green bubbles" you'll see an awful lot of anti-green-bubble sentiment. Here are just a few examples I quickly found (Paul has others in his article).

Those are just some of the anti-green-bubble messages from the past 24 hours. There are actually a lot more, and it goes on and on. It's kind of amazing just how many people are tweeting about their hatred for green bubbles.

Ford, then goes into a really interesting discussion on the nature of product management and design choices -- the kind of thing that Apple doesn't do on a whim -- to get to the real point: Apple is likely choosing harsh, ugly green bubbles on purpose. As a petty way to put down Android users:

Apple must know by now that the people of the blue bubbles make fun of the people of the green. And I guess if I worked at Apple I’d be pretty psyched with this reaction. After all, what is a more powerful brand amplifier than social pressure? If people who converse in green bubbles start to feel relatively poor, or socially inferior, because they chose to use a less-expensive pocket supercomputer than those made by Apple, that could lead to iPhone sales. Ugly green bubbles = $$$$$ and promotions.

But I think the ugly green bubbles are the result of a mean-spirited, passive-aggressive product decision, marketed in a mean-spirited way. Certainly it’s not a crisis in capitalism. This is not to say that Google is good and Apple is bad; they’re both enormous structures that have so much power that they can manufacture their own realities (except for Google Glass, then not so much).

The bubbles are a subtle, little, silly thing but they are experienced by millions of people. That amplifies that product descision into a unsubtle, large, serious-yet-still silly thing. The people who are tweeting about green bubbles are following Apple’s lead. It’s not unprecedented; Apple has done stuff like this before, like giving Windows machines on its network a “Blue Screen of Death” icon. But people spend so much time texting that it adds up.

Beyond highlighting Apple's apparent pettiness (and lack of ability to allow users to customize things for themselves), it also highlights how very minor design decisions do matter in a fairly big way. I recognize that some people like to get into tech fanboy wars: iPhone v. Android, Mac v. Windows v. Linux, Playstation v. Xbox, etc. That's going to happen, even if it mostly seems like a waste of time. But, really, using subtle design choices to highlight and further such fights seems to show such a childish attitude to competition. Good competitors focus on making their own products better, not demeaning the competition. It's when they run out of good ideas that the focus shifts to attacking the competition. Apple has done so many things right with the iPhone in pushing the barriers of innovation, it would be better if they just focused on making the overall customer experience better, rather than trying to offer subtle digs at non-iPhone users.

Filed Under: android, design choices, green bubbles, imessage, sms
Companies: apple

Apple's Insistence On DRM And Other Restrictions Means EFF's New App Is Android-Only

from the eff-your-walled-garden dept

The EFF has produced a new mobile app that allows users to access its alert center and instantly take action on issues pertaining to digital rights and other areas the group focuses on. And, it's Android-only, because the EFF took a long look at Apple's walled garden and said, "Include us out."

Sadly, though, we had to leave out Apple devices and the folks who use them. Why? Because we could not agree to the outrageous terms in Apple’s Developer Agreement and Apple’s DRM requirements.

What specifically bothers the EFF about Apple's Developer Agreement? Well, how about the fact that you can't talk about the agreement? The agreement forbids "public statements" about a public document.

Apple also bans reverse engineering, prevents rejected apps developed with its development kit from being distributed by competing app stores and forbids jailbreaking of its devices. The EFF would prefer more open platforms, hence its decision to bypass Apple and its defensive perimeter.

Going beyond Apple's tight control of apps and its app store, there's the problem with the company's insistence on saddling software with some form of DRM. For a company that fought off the major labels' insistence that iTunes include DRM in its offerings, it seems rather hypocritical that it insist others do the very thing it refused to do for others.

As of now, the app is still in its infancy. There's not much to do with it (at least not until the next alert rolls through the system) other than install it and recommend it to others. But the EFF is seeking input both on features and design (contact rainey@eff.org) and has made the code available for forking at Github.

Apple obviously loses nothing but a bit of its reputation by EFF's shunning. But the EFF is still pushing to make the Apple App Store a better environment for all developers.

We’re inaugurating our new mobile app with a suitable campaign: a petition calling on Apple to change its Developer Agreement to respect the privacy and innovation rights of developers. Add your signature today to stand up for free speech and oppose DRM.

Apple's tight control does more damage to its reputation than any rogue app that sneaks past its controls. It has played the villain in the past, booting controversial apps and exposing itself as a guardian of nothing more than the safe and inoffensive. It has also deployed its developer agreement inconsistently, making navigating its lists of "don'ts" an aggravating exercise in minefield tiptoeing. And that's when it's not booting apps simply because they might jeopardize the home team's offerings.

Its similar control of its devices is starting to work against it, as a recently-filed class action lawsuit over its internal storage claims makes clear. When you can't add removable memory or swap out the internal storage for something bigger, you're forced to rely on the manufacturer's claims of how much room is actually available on your phone. And once you've preloaded everything Apple wants you to have on your iPhone, you're left with far less than the 8/16/32GB printed on the outside of the box. (Apple's software will "helpfully" suggest your purchase some iCloud storage when your phone nears capacity.)

Walled gardens are the antipathy of the open internet and free speech, as the EFF points out. So, as long as Apple wants to force developers to play nice with a long list of limitations, the EFF will be having no part of it.

Filed Under: android, apps, drm, ios, restrictions, walled garden
Companies: apple, eff

Stupid Costly Patent Nuclear War By Microsoft & Apple Against Android Averted

from the stupid-this-had-to-happen-in-the-first-place dept

We've written a few times about Rockstar Consortium, a giant patent troll that was created when Microsoft and Apple (and a few others) teamed up to outbid Google, Intel (and a few others) in buying thousands of Nortel patents. Nortel admitted that it had bulked up on many of these patents for defensive measures, but once Nortel went bankrupt they went to the highest bidder (and the bidding went pretty damn high). The winners of the bidding kept a few of the patents for themselves, but then dumped them all into "Rockstar Consortium" which was a new giant patent troll and which, importantly, was not subject to promises that Apple and Microsoft initially made (to avoid antitrust problems) to license the patents under reasonable terms.

Last year, Rockstar launched its massive patent attack on Android, suing basically all the major Android phone makers and Google. While some have argued that big company v. big company patent attacks aren't a form of patent trolling, some of us disagree. This, like most patent trolling, is just trying to extract money from companies and has nothing to do with actual innovation. In the tech world, some have referred to this kind of thing as "privateering" in which a big company puts the patents into a shell company to hide their trolling activity.

Either way, it appears that a settlement of sorts has been reached, with Rockstar Consortium agreeing to sell its patents to RPX (with Google and Cisco picking up much of the bill). RPX is sort of the "good version of Intellectual Ventures." It's a company that collects a bunch of patents with the goal of using those patents for member companies for defensive purposes. Even though RPX has generally been "good," the business model basically lives because of patent trolling. Its very existence is because of all the patent trolling and abuse out there. In this case, though, it's making sure that basically anyone can license these patents under FRAND (fair and reasonable, non-discriminatory) rates. The price being paid is approximately $900 million. While that article points out that this is considerably less than the $4.5 billion Microsoft and Apple paid originally, again, this is only 4,000 of the 6,000 patents, and you have to assume the 2,000 the other companies kept were the really valuable patents.

In short, this is basically Google and Cisco (with some help from a few others) licensing these patents to stop the majority of the lawsuits -- while also making sure that others can pay in as well should they feel threatened. Of course, Microsoft, Apple and the others still have control over the really good patents they kept for themselves, rather than give to Rockstar. And the whole thing does nothing for innovation other than shift around some money.

Cisco's Mark Chandler celebrated the deal as a "common sense" solution. And, it certainly beats all out patent litigation war. But it's still just about moving money around, rather than encouraging innovation. He notes that in settling this as a group, it helps keep things from getting totally out of control:

While we have no quarrel with companies using their patents to stop the copying of differentiating features without permission... the driving up of patent valuations as each side in the war sought to bulk up for battle ended up serving no one other than lawyers and middlemen.

In the end, this is a better solution than years of legal battles. Making this offering open to others (at least for a limited time) is also a better result than might otherwise have been achieved. But it still shows how patents are abused and misused to shake down companies, rather than for any legitimate purpose. And, as Chandler also notes, the real issue still has to come down to fixing the broken patent system:

What is most critical, however, is changing the law to level the playing field and restore a patent system that rewards innovation, not litigation gamesmanship. The chance will come later this spring to enact meaningful patent reform. We will be there as advocates, and hope you will be too.

Filed Under: android, licensing, patent trolling, patent war, privateering
Companies: apple, cisco, google, microsoft, nortel, rockstar consortium, rpx

Good News: Mobile Devices Now Competing To Be Much More Secure Against Prying Eyes

from the very-good-to-see dept

While the more cynical folks out there have insisted that the tech industry is a happy partner with the intelligence community, the reality has been quite different. If anything, in the past many companies were simply... complacent about the situation, not realizing how important these issues were. That's problematic, but the Snowden revelations have woken up those firms and enabled the privacy and security gurus who work there to finally get the message across that they absolutely need to do more to protect the privacy and security of their users. That's why you see things like Apple's new local encryption by default on iOS8, meaning that even if law enforcement or the intelligence community comes knocking, Apple can't get much of your data off of your device.

“Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” Apple said on its Web site. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

Within hours, it was reported that the next update to Android would also have the same default encryption.

“For over three years Android has offered encryption, and keys are not stored off of the device, so they cannot be shared with law enforcement,” said company spokeswoman Niki Christoff. “As part of our next Android release, encryption will be enabled by default out of the box, so you won't even have to think about turning it on.”

Of course, you can expect to see the DOJ pushing for new laws to somehow block this or get backdoor access. It may create a future fight worth watching. In the meantime, though, it's great to see tech companies actually competing on how well they can protect the privacy of their users' data from the prying eyes of law enforcement and intelligence agencies.

Filed Under: android, competition, devices, encryption, ios8, privacy, security
Companies: apple, google