One unintended consequence of the accelerating popularity of HTML5 for mobile app development is an ability to skate past Apple’s App Store restrictions on in-app sales.  So I put this question to Piotr Steininger of Tapangi Consulting:

There’s talk out there about being able to use HTML5 to get around Apple’s App Store ban on charging for in-app purchases.  In other words (I think), somehow HTML5 allows content producers to get around this problem by making apps (and other things) downloadable directly through web browsers.  So … how is it that HTML5 allows getting around this issue?

Some background: Apple announced a policy change earlier this year, specifically in Section 11.14 of its App Store guidelines, Continue reading

In June of this year, Senator Al Franken (D. Minn.) introduced the “Location Privacy Protection Act of 2011” (S. 1223).  According to the bill summary available on Franken’s website, a 2010 investigation by the Wall Street Journal revealed that 47 of the top 101 mobile applications for Apple iPhones and Google Android phones disclose user location without consent of the user.

According to Franken’s bill summary, current law prevents disclosure of user location during telephone calls without user consent. Currently, no similar legislation protects user location when a user accesses information through a mobile web browser or mobile application. Franken claims that his bill will close loopholes in the Electronic Communications Privacy Act that allow for this distinction.

If S. 1223 passes, companies will be required to obtain permission not only to collect mobile user location information but also to share that information with third parties. Additionally, the bill seeks to put in place measures to prevent stalking through location information.

As of this writing, Franken’s bill has been assigned to the Senate Judiciary Committee and is being cosponsored by Sens. Blumenthal, Coons, Durbin, Menendez, and Sanders.

Original Post (published 9/8/2011)

When was the last time you read a license agreement after installing software or downloading an app on your smartphone? If you’re like most people, the answer is probably never.

According to some estimates, fewer than 8 percent of us actually read the entirety of those agreements, despite rising concerns about digital privacy and data collection. Continue reading

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.

Apple’s App Store is full of subscription-based content providers. Whether you’re watching a movie on the Netflix app, reading a book through the Kindle app or streaming a TV show using the Hulu Premium app, you’re probably used to paying for the app and then paying more for the content.

But that’s changing, thanks to Apple’s new policy, which will prohibit developers from requiring users to make a second purchase to access content once they have purchased the app itself.

Apple rumor website MacWorld reported earlier this summer that Apple was planning on this new policy. The article quoted Section 11.14 of Apple’s App Store guidelines:

Apps can read or play approved content (specifically magazines, newspapers, books, audio, music, and video) that is subscribed to or purchased outside of the app, as long as there is no button or external link in the app to purchase the approved content. Apple will not receive any portion of the revenues for approved content that is subscribed to or purchased outside of the app.

Previously, developers could charge one price for the app and then offer more content for a second price within the app. Unlike purchases made through the app store, where Apple receives 30 percent of the profit, profits made from purchases within the app itself would go entirely to the developer. In eliminating the possibility for in-app purchases, Apple is ensuring that it retains its 30 percent.

But developers are looking to find ways around this policy. According to MacWorld, Netflix has found a loophole in instructing users to “visit Netflix.com” without providing a button for users to do so.

Others are turning to the much anticipated HTML5. According to Piotr Steininger, co-founder of Tapangi Consulting [http://tapangi.com/] based in Washington, DC, HTML5 may open floodgates for apps that are accessed through a device’s web browser rather than through an app store.  Or in other words, “Rather than buying an app in the app store you just go to a URL and you’ve got an app to go,” Steininger says. “You load it once on the iPad and download a book locally, and you’re good to go.”

Amazon has already unveiled an HTML5-based Kindle app that works within a device’s browser, including on the iPad. The app synchronizes with a user’s Kindle library, and users can shop for Kindle content within the app. According to many reports, other content providers, including Wal-Mart, are similarly attempting to use HTML5-based apps to avoid the Apple App Store and its rules and fees.

You go into a conversation from a lawyer’s perspective, expecting the discussion to be all about “ownership, ownership and ownership”.  You might expect app and other software developers to focus on nothing other than ownership.

Many times you’d be wrong.  One problem with ownership: Misidentification of value.

As Dan Berger of Social Tables pointed out, many technology companies aren’t strictly “technology” plays at all, and their value isn’t in their code, but rather in their execution or implementation.

I recently spoke with Eric Gunderson of Development Seed, whose open-source mapping technologies illustrate the same principle of technology execution: In the case of Development Seed’s MapBox, the great strength is speed.  Big data use means great mapping potential, but also means big processing problems.  Big processing problems reward innovative design execution.  If speed of mapping capability and management of data is a priority, ownership is less of a concern than execution and capabilities.  This is true even with proprietary products rather than services.  One might of course say, “Use our system, use our product,” but why should we use it?  The answer is that you do something better than everyone else out there using comparable – and perhaps even identical – technologies.  You wrap it up and package it – and execute it – better and faster.

The coding is valuable, but the greater value is in the execution of the coding and coupling of the organic coding with acquired knowledge from third-party applications and libraries, including (for example) Javascript libraries and other open-source software under GPL, MIT or other licenses.

The code itself may, or may not be open-source, but the value often is in the packaging, in the delivery, in the execution and the support.  In reality, I – the end user – cannot do much with the code itself beyond the immediate and narrow need of my specific use, and that will be without support, without updates, modifications, improvements and all the other benefits from open-source collaboration.  From the developer’s standpoint, the ability to develop products that continue to feed a renewable support business drives further continued product development.

Whether or not open-source, Social Tables, like MapBox, can benefit from copyright protection as a “collective work” or compilation, and that protection has meaningful value.  But as Dan Berger of Social Tables is quick to recognize, the copyright protection has less meaning to his potential market than the elegance of his design and the ease-of-use of his execution.   As technologist Piotr Steininger told me recently, referring to SproutCore, with increasing use of open-source, developers – and technology businesses – have realized that “the framework has potential but it can only benefit from open collaboration.  So in a sense the company gives up a product but in return gains a better product by sharing it.”

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Today, we will discuss the business and, particularly, the legal landscape faced by application (App) developers dealing with mobile platforms (iOS, Android and Blackberry being dominant), including dealing with application interfaces (APIs) when developing based on existing applications, and, of course, client relationships.

I am joined today by Liz Steininger, co-founder of Tapangi Consulting and project manager in the DC Government’s Office of the Chief Technology Officer.  Tapangi Consulting specializes in mobile and HTML5 application development as well as content management.  Liz is also an active member of the DC Tech community and you can find her on Twitter as @liz315.

Some of the issues we discuss today are these:

• Protecting ideas in early stages of pitching to potential clients.

• Application developer agreements and API Terms of Use (TOUs).

• Platform question: As a developer, how do you think about development based on different platform (e.g. Android or iOS or Blackberry) or a specific API?

• Copyright and “open source” issues, GPL, libraries, use of third-party code.

• Ownership and Rights Issues

• Privacy and uses of personal information (PI).

Please click here for the podcast.

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Our Twitter chat last week with technology and entertainment lawyer Joy Butler highlighted legal issues with app development, including contract issues between app developers and clients, on one end, and intellectual property (IP) and API issues between the app and the intended development platform, on the other end.

Privacy issues become pressing later when the app goes public for end users, although the biggest privacy problems tend to arise when app publishers get tripped up by commitments made in their own end user license agreements (EULAs) or privacy policies, more so than from any violations of privacy laws.  More on privacy and the app/API problems in a separate blog post.

Immediate issues are copyright and trademark, both governed by federal laws, but also governed by API terms of use and similar application development agreements with hosting platforms.  Apple’s software developer kits (SDK) for the iPad and iPhone encompass similar purposes as part of broader packages of developer protocols for use of those APIs.

Continue reading

The following is our first twitter chat on trending legal issues. This one focused on legal issues involved with app development and APIs and featured thoughts from attorneys Andrew Mirsky and Joy Butler (@joybutler). Be sure to stay tuned to the @MirskyLegal twitter account for more information on the next #lawchat and please tweet in using the provided unique hashtag!
Continue reading

The Associated Press reported yesterday about a University of Missouri student who invented an iPhone app in a class, then was successful in generating more than 250,000 downloads of the app, and finally was contacted by lawyers for the University demanding a 25% royalty on all earnings from the app.

According to the AP, the student, Tony Brown, was also given the celebrity treatment by Apple and wooed for technology jobs by Google and other companies.

Ultimately, Missouri backed down, but not before overhauling the University’s technology transfer policies, at least as they relate to student development and ownership of intellectual property.  In this case, “Inventions” and copyrights that might be considered “work-for-hire”. Continue reading