So today we're posting the "iPhone Developer Program License Agreement"—the contract that every developer who writes software for the iTunes App Store must "sign." Though more than 100,000 app developers have clicked "I agree," public copies of the agreement are scarce, perhaps thanks to the prohibition on making any "public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple's express prior written approval." But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules controlled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement.

UPDATED: we are now also posting the most recent version of the agreement, dated January 2010.

This "license agreement" is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office's ruling regarding jailbreaking of the iPhone.

So what's in the Agreement? Here are a few troubling highlights:

Ban on Public Statements: As mentioned above, Section 10.4 prohibits developers, including government agencies such as NASA, from making any "public statements" about the terms of the Agreement. This is particularly strange, since the Agreement itself is not "Apple Confidential Information" as defined in Section 10.1. So the terms are not confidential, but developers are contractually forbidden from speaking "publicly" about them.

App Store Only: Section 7.2 makes it clear that any applications developed using Apple's SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you're prohibited from distributing it through competing app stores like Cydia or Rock Your Phone.

Ban on Reverse Engineering: Section 2.6 prohibits any reverse engineering (including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law), as well as anything that would "enable others" to reverse engineer, the SDK or iPhone OS.

No Tinkering with Any Apple Products: Section 3.2(e) is the "ban on jailbreaking" provision that received some attention when it was introduced last year. Surprisingly, however, it appears to prohibit developers from tinkering with any Apple software or technology, not just the iPhone, or "enabling others to do so." For example, this could mean that iPhone app developers are forbidden from making iPods interoperate with open source software, for example.

You will not, through use of the Apple Software, services or otherwise create any Application or other program that would disable, hack, or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone operating system software, iPod Touch operating system software, this Apple Software, any services or other Apple software or technology, or enable others to do so

Kill Your App Any Time: Section 8 makes it clear that Apple can "revoke the digital certificate of any of Your Applications at any time." Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That's pretty remarkable, considering that Apple holds a developer's reputational and commercial value in its hands—it's not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform.

In short, no competition among app stores means no competition for the license terms that apply to iPhone developers.

If Apple's mobile devices are the future of computing, you can expect that future to be one with more limits on innovation and competition (or "generativity," in the words of Prof. Jonathan Zittrain) than the PC era that came before. It's frustrating to see Apple, the original pioneer in generative computing, putting shackles on the market it (for now) leads. If Apple wants to be a real leader, it should be fostering innovation and competition, rather than acting as a jealous and arbitrary feudal lord. Developers should demand better terms and customers who love their iPhones should back them.

Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” the program will bring together panels of academics, legal practitioners, and journalists. Topics will include the legal issues arising from news aggregation and managing online communities, as well as the question of what comes next for journalism, and how the legal profession can assist (or hinder) journalism’s digital transition.

Please visit the OMLN website for more information on the conference agenda, registration, and logistics and lodging.

We hope that you will join us in Cambridge for an opportunity to meet members of OMLN and to learn more about the legal issues faced by journalists working online. A discounted registration fee is available for registration forms received by March 22nd.  Law students should contact us to see about a fee waiver.

If you or your organization is interested in becoming a sponsor of the conference, please contact OMLN staff attorney Kimberley Isbell for details. Sponsors will receive a limited number of free registrations, tickets to a dinner with Harvard Law School Professor and Berkman Center Faculty Co-Director Jonathan Zittrain as the Keynote Speaker, as well as prominent acknowledgement on the OMLN website and at the conference.

The trial court reduced the jury verdict to $5 million, and the Fourth Circuit Court of Appeals reversed the award of damages altogether, holding that the Phelps' speech—while repugnant—is constitutionally protected.  The case raises fascinating questions about whether the intrusion and intentional infliction of emotional distress torts may constitutionally be applied to speech on matters of public concern without creating all sorts of gnarly overbreadth, vagueness, and viewpoint discrimination problems. 

UCLA law professor Eugene Volokh has several brilliant posts exploring all of this in great detail and with great eloquence. I highly recommend these posts to anyone interested in the First Amendment (or just this crazy case).

The campy video features musician and political supporter Joe Cantafio performing his take on the 1971 classic "Walk Away." Cantafio used the same, or substantially similar, music from the song to create “Lead the Way,” an ode to Walsh’s campaign. When Walsh the Rocker found out a Republican used his music as part of a campaign video, an entertaining—though misguided—discussion on copyright law began.

Attorney for Walsh the Rocker, Peter Paterno, began his initial letter by saying that it "might be beneficial" for Walsh the Candidate to freshen up on his copyright knowledge. "You're not allowed to take someone's song and change the lyrics," he wrote. "This is not to say you're not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe's music—it's undoubtedly because it's a lot better than any music you or your staff could have written. But that's the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

Candidate Walsh called the song a parody and replied: "I’m writing for myself, Joe Walsh, a Republican Candidate for Congress in Illinois 8th District. You know where that is, don’t you? It’s that wide-open part of the country you fly over on your way from Los Angeles to New York." Realizing the political opportunity now present, Walsh continued, "I hope the Democratic National Committee and Nancy Pelosi didn’t put you up to this. As the frontrunner to take on Nancy’s Democrat Incumbent Melissa Bean this year, I wonder if I’m a threat to a whole bunch of liberal interests here who want to take down a tea party candidate."

Artists have taken issue with the unauthorized use of their music in campaigns for many election cycles now, but the case of the two Walshes is different than most. Unlike other campaigns that used original versions of songs in their entirety, Candidate Walsh turned "Walk Away" into "Lead the Way," changing lyrics from "Seems to me, you just turn your pretty head and walk away" to "Seems to me, Joe Walsh is just the perfect guy to lead the way." There are also references to Bean and Speaker of the House of Representatives Pelosi.

Once informed of Candidate Walsh's video, Rocker Walsh issued takedown demands to YouTube made possible through provisions in the Digital Millennium Copyright Act, 17 U.S.C. § 512. Candidate Walsh insisted the video is an example of fair use. Because the song features new lyrics, it does stand in contrast to previous high-profile legal bouts between the Foo Fighters and John McCain or Don Henley and Republican Charles DeVore. But the fair use defense in this case is still questionable. 

Courts consider four well-known factors when determining if fair use applies: (1) The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. 

On factor 1, courts do consider parody as an example of fair use like Candidate Walsh suggested. “Lead the Way,” however, probably doesn't qualify as a parody.  Courts in the copyright sphere have drawn a distinction between parody and satire. A parody pokes fun at the copyrighted work, while satire uses that copyrighted work as a vehicle to comment on something else altogether. Parody, unlike satire, needs to mimic the original to make its point and can use as much of the copyrighted work as is necessary to do so.  While it is certainly not necessary to create a parody in order to qualify as a fair use, this form of social and literary criticism gets special solicitude from the courts because of the First Amendment values at stake.

The leading case dealing with what qualifies as a parody is Dr. Seuss Enterprises v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997).  In that case, an author used Dr. Seuss characters and expression to comment on the O.J. Simpson murder trial. The Ninth Circuit held that "The Cat NOT in the Hat! A Parody by Dr. Juice" did not qualify as parody for copyright purposes because it did not comment on or criticize Dr. Seuss's original work, but simply used Dr. Seuss's work to make an unrelated point.

By way of contrast, the Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), that 2 Live Crew's use of Roy Orbison’s “Pretty Woman” to ridicule the original as “bland and banal” was an example of parody.

Rocker Walsh’s attorney is incorrect when he says that Candidate Walsh cannot take someone else’s song and change the lyrics. Candidate Walsh can with a parody, though in this case, he didn’t. Instead, he used the music to “Walk Away” as a vehicle to communicate his campaign platform. The new lyrics speak only to his candidacy and don’t comment on the original song in any way. Because he could have just as easily communicated this platform by using his own music, his fair use defense is considerably weakened.

It is helpful that Candidate Walsh used different lyrics and created the video with a political, rather than commercial, intent; but this isn’t likely to meet the “transformative” standard needed for fair use. Ultimately, it’s still Rocker Walsh’s music being used.

The remaining fair use factors require less extensive discussion. Factor 2 offers more protection for highly creative—rather than factual—works, so the fair use scale would tip against Candidate Walsh here as well. And because Cantafio plays the music in its entirety, factor 3 also favors Rocker Walsh.

On factor 4, it's not likely that Candidate Walsh's campaign video itself will harm the market for Rocker Walsh's original musical work. But allowing unfair copying of copyrighted material could undercut the demand for derivative works. See Roger v. Koons, 960 F.2d 301, 312 (2nd Cir. 1992) (artist Jeff Koons' use of plaintiff's "Puppies" photograph could undercut the licensing market for derivative works, weighing against fair use). If Candidate Walsh is allowed to use the music to “Walk Away” without permission, it could reduce the incentive of others to license that same music. This would pose the type of economic harm that copyright aims to prevent.

But this probably isn’t Rocker Walsh’s first concern. It seems more likely that the real offense here is not the use of “Walk Away,” but instead the candidate who used the song. Wrote Paterno to Candidate Walsh: "Given that your name is Joe Walsh, I'd think you'd want to be extra careful about using Joe's music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Now, that’s not likely to happen.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)