It’s the iPhone Application developer’s worst (and increasingly justified) fear: Spending significant time, money, and resources building an app only to have it rejected, or worse, pulled from the App Store for alleged legal violations. Carefully navigating the legal landscape in which app development operates is therefore essential to launch and maintain a successful

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Application. Prudence dictates being mindful of the common legal pitfalls to iPhone application development before and during the development process – and not after – when it is often too late. By examining the iPhone SDK Agreement, Apple’s End User License Agreement, and federal copyright and trademark registration, this article provides an introductory overview of the common legal issues surrounding iPhone Application development and the measures developers can adopt to minimize liability and maximize the protection of their intellectual property rights Sci Burg.

The iPhone SDK Agreement

Apple’s iPhone SDK Agreement imposes several important legal requirements, the most notable of which include: Privacy laws: Developers are required to comply with all state, federal, and international privacy laws regarding user data collection, and picture or voice capture. Accordingly, personal information collected from a user may not be disseminated without the user’s consent; the unauthorized use of a user’s name or likeness for gain is prohibited. A user’s voice may not be recorded without a conspicuously displayed notice indicating that a recording is taking place. Copyrights in music and content:

Any music incorporated into your Application must be wholly owned by you or licensed to you on an entirely “paid-up” basis. (Such a license should provide that the one-time, lump-sum payment is final, and that you are released from any and all further payment obligations to the Licensor, no matter how successful the Application becomes.) Further, all content in your Application must be owned by you or be used by you with the owner’s permission. If you are using content other than music under a license, the license should state the royalty terms, if any, resulting from any sales of your Application.

Objectionable Content and materials: Applications may not contain any obscene, pornographic, offensive, or defamatory content, or other content that Apple deems objectionable. What is “objectionable” is a matter of Apple’s reasonable discretion; legal challenges to a rejection of your Application on this basis will prove difficult. Free and open-source software: Applications that include Free and Open Source Software (FOSS) must comply with all applicable FOSS licensing terms. The SDK Agreement also requires (perhaps superfluously) that your use of FOSS may not in any way infect the SDK itself.

NOTE

Due to its “viral” nature, you need to be careful when using open source code that is subject to a restrictive open source license if you want to safely incorporate it into your proprietary software. For instance, the GNU General Public License (GPL) terms require that any derivative work containing GPL code must itself be subject to the GPL, rendering the resulting software “open” and the source code publicly available. Not only will any trade secrets contained in any code carrying a GPL license be forcibly disclosed, others may freely copy and distribute your source code, give it away for free, or even create a competing product using your own code. The viral nature of restrictive open source licenses can have a devastating impact on your company’s intellectual property assets.

End User License Agreement

Applications made available through the App Store are subject to Apple’s Licensed Application End User License Agreement (“EULA”), unless the end-user enters into a valid EULA with the developer. The following provisions of Apple’s EULA are of particular note, and should be adopted should you use your EULA:

Disclaimer of warranty: This provision states that the Application is being provided “as-is,” without any express or implied warranties regarding the Application’s quality, performance, effectiveness or reliability. In those jurisdictions where disclaimers of warranty are enforceable, such a provision protects the Licensor from potential legal claims arising from the use of the Application, as the Licensor makes no promises of any kind.

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