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Tags: apple evil iphone rant stupid
Deconstructing Apple's Copyright and Trademark Guidelines
by Mike Ash  

It's well known that every member of the official iPhone developer program is bound by Apple's iPhone SDK agreement. What seems to be much less well known is that the agreement also binds developers to follow Apple's "Copyright and Trademark Guidelines", which add a huge list of restrictions to what an iPhone developer can and cannot do.

(Before I go any further, I want to point out that I am not a lawyer and that the following is a deeply pessimistic read of what these Guidelines have to say. This is a satirical, not technical, interpretation of this document. It's quite probable that "use" means something more restricted in this legal context than it does in English, and even if it doesn't, any court would throw out the insanely restrictive clauses which I quote. Please do not bother to "refute" me on these points.)

The SDK agreement binds developers to the Copyright and Trademark Guidelines using the following language:

If You make reference to any Apple products or technology or use Apple's trademarks, You agree to comply with the published guidelines at http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html, as modified by Apple from time to time.

Since it's virtually impossible not to make reference to any Apple products or technology as an iPhone app developer (try selling an iPhone app without using the word "iPhone"), it's safe to say that everyone falls under this clause. The interesting thing here is that there is no language which restricts these guidelines to the iPhone. In other words, as best I can tell from the SDK agreement's wording, these published guidelines apply to your entire conduct, not just your iPhone application.

But what do those guidelines actually say? They're big and complex and I don't think many people have actually examined them in detail and considered the ramifications. I'd like to look at a few choice sections here.

4. Web Sites: Web sites that serve only as noncommercial electronic informational forums concerning an Apple product or technology may use the appropriate Apple word mark, provided such use complies with the guidelines set forth in Section 3 above.

Section 3 then contains requirements like this:

b. The use reflects favorably on both Apple and Apple products or technology.

In other words, it is a violation of your iPhone SDK agreement if you also run a web forum called, "Apple sucks".

Strange enough, but there's more!

7. Apple’s Trade Dress: You may not imitate the distinctive Apple packaging, web site design, logos, or typefaces.

Lucida Grande is pretty distinctive. It seems that no iPhone developer is allowed to use it, though.

Take a look at this section, emphasis added:

3. Variations, Takeoffs or Abbreviations: You may not use an image of a real apple or other variation of the Apple logo for any purpose.

Now, I'm not a lawyer, but I do read and understand English pretty well. I can't find any language that restricts the scope of this restriction. As best I can tell, it is a violation of your iPhone SDK agreement to have a picture of an apple on your desk, let alone on your web site, even if it's just there so you can caption it with, "This is an apple."

This section goes even further, emphasis added again:

Third parties cannot use a variation, phonetic equivalent, foreign language equivalent, takeoff, or abbreviation of an Apple trademark for any purpose.

Again, I can't find anything that restricts the scope of this. Thus, I must conclude that it is a violation of the iPhone SDK agreement for a developer to ever utter the word "appel", "pomme", "manzano", "苹果", "リンゴ", or "شجرة التفاح‏".

And finally, the real kicker:

8. Slogans and Taglines: You may not use or imitate an Apple slogan or tagline.

For example: "Think different."

Uttering the phrase "think different" (or writing it... better haul me away!) is a violation of the iPhone SDK agreement.

Think different, indeed!

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Comments:

David Jones at 2009-11-17 05:52:21:
I might be wrong, but when you typed apple in Japanese, it should have been "りんご," not "リンゴ." They are phoenetically the same, but Hiragana (spelling 1) is used for native Japanese words, and Katakana (spelling 2) is used for foreign words and a few other things (such as catching attention). You should probably check to make sure I'm right. Everything else is very . . . interesting. Apple is a tricksty company!

Apple at 2009-11-17 06:24:12:
Dude, I think you just violated the SDK agreement like 50 times per paragraph on average with this post. That's just above the tolerated threshold (of ~45 times per paragraph). We'll be sending someone shortly to revoke your SDK privileges.

-- Your friendly Apple representative.

mikeash at 2009-11-17 06:31:39:
David Jones: I know zero Japanese, so you could very well be right. I just hit up answers.com and picked the first translation offered.

Apple: Good one, but it would have been funnier if you had posted it from a 17. IP address. (And I don't care if they revoke my SDK privileges at this point. I haven't even had the thing installed since August.)

Simon Wolf at 2009-11-17 07:39:11:
I'm quite surprised you had never run across the Copyright and Trademark Guidelines before and discovered the fact that they relate to everyone, not just iPhone developers. These sorts of documents are sadly, fairly standard in corporate life and even Ubuntu has one, albeit written in a more relaxed style: http://www.ubuntu.com/aboutus/trademarkpolicy. It's always worth checking the company's legal section of a web site to see what the company allows and doesn't allow.

On the bright-side, my take on it is that these legal restrictions have to exist so that Apple (and other companies) can protect their trademarks and are minor breaches usually slip through the net undetected or ignored.

So, do you think that every Mac developer who displays the Universal binary logo has been through the official registration process? By the way, the details are at http://developer.apple.com/softwarelicensing/agreements/maclogo.html.

Taro at 2009-11-17 11:51:58:
Yeah, writing "apple" as リンゴ is all right. Even there is an article of same name in Japanese Wikipedia.

Taro at 2009-11-17 13:02:29:
Indeed this agreement is a good thing: it lets you know all the reefs before you sign it. Nothing can force you to sign the agreement if you do not like it.

Ron at 2009-11-17 15:58:06:
Taro: I think Mike's point is not that you wouldn't sign it (or even that it might be revoked) but rather that it doesn't make sense. How does one adhere to an agreement that prevents one from engaging in precisely the activity the agreement is meant to condone? That is -- how do I sell software for iPhones if I can't say iPhone?

We stand beyond the slippery slope -- in the water. These types of agreements and many laws today are meant to overreach, giving those who hold the cards the tools to bitch-slap you when it suits their whim.

mikeash at 2009-11-17 17:37:49:
Simon Wolf: No, it does not relate to everyone. It only binds people who have signed a contract which binds them. A lowly Mac-only developer is not bound to follow them. Someone who lets his iPhone program membership lapse would no longer be bound to follow them. I had no expectation of being bound to such a thing when signing up for the iPhone program. Of course I should have read the SDK agreement more closely. On the other hand, if I wanted to be a lawyer, I would have gone to law school. This modern trend wherein you need to either be or hire a lawyer if you want to do anything related to computers is sickening.

Taro: How is this agreement a good thing? It's ok to place completely insane restrictions on what other people can do as long as you tell them ahead of time? I don't buy it.

Simon Wolf at 2009-11-17 18:41:40:
You don't need to sign a copyright or trademark notice to be bound by it. When I buy a book I don't sign anything saying that I agree with the copyright but I'm also not allowed to breach it. The guidelines simply spell out what you are and aren't allowed to do with their copyrights and trademarks, it's not a contract or agreement.

A Mac developer, journalist, blogger or grandmother is bound by then because the fact that Apple own copyrights and trademarks is the important bit, not whether you or I sign an agreement to abide by them. If you set up a site that was a copy of Apple's and which used their images and logos you can be sure that you'd get taken to court.

The iPhone SDK Agreement is a red herring with the Rogue Amoeba story. The issue is with trademarks, not the SDK agreement. You simply cannot use someones copyrighted and trademarked property without permission and if Apple went after Rogue Amoeba for using things like the Safari icon in their Mac application I'm fairly sure Apple would win the case.

Jeff Johnson at 2009-11-17 19:00:15:
You are correct that the SDK is a red herring but for the wrong reason. You misunderstand trademark law. You simply *can* use someone's trademark without permission. It's called fair use, and it's protected by the law and the courts.

The law and the courts get to decide whether you can use Apple's trademark, not Apple. The problem with the app store approval process is that their substituting the reviewer's judgment for that of a judge and jury.

If Airfoil had used the Safari icon to represent Firefox, that would have been a problem, because it's dilluting the trademark. However, Airfoil did no such thing. It only used the Safari icon to refer to Safari, and that's perfectly acceptable and protected under law. People do it all the time all over the place.

The question is, why doesn't Apple go after Airfoil for Mac? The answer is that they know they can't win in court. It's an open and shut case, fair use. The only way Apple 'wins' is in the app store, where they control everything, not in court, where the law prevails.

Simon Wolf at 2009-11-17 19:34:58:
Yes, sorry, I should have confessed earlier not to being an expert in the area and simply saying how I understood copyright laws. I also think that the UK (where I am) and the US have slightly different rules. In any event I'm more than happy to stand corrected. :)

Jeff Johnson at 2009-11-17 19:42:25:
I'd like to add that, counterintuitively, it's actually a greater threat to Apple's trademark rights for them to give written permission for people to use the trademark for otherwise 'illegal' purposes. This brings the danger of dilluting or genericizing the trademark.

Fair use protects both us *and* Apple. Fair use protects Apple because Apple doesn't have to sue every little person who uses their trademark in some way. If someone uses an Apple trademark to refer to the Apple product, that just reinforces the tie between the trademark and the product. It's the use of the trademark to refer to *other* products that violates the trademark laws.

Note that Windows is a trademark of Microsoft. So why doesn't Microsoft sue the pants off Apple for using their trademark in those commercials? Because it's fair use. Apple only uses the trademark to refer to the product.

Simon Wolf at 2009-11-17 19:55:41:
One thing that does occur to me is that if Apple allowed their trademarks to appear in an application under fair use then presumably they would have to allow other applications that use other organisation's trademarks and if those companies decided to take legal action would Apple be liable rather than the individual developers? Perhaps (and I'm going to give up trying to defend them after this!) they blocked the application to prevent setting a precedent? However, if this was the case I would have hoped that Apple would have explained the situation much more clearly.

Anyway, thanks for the clarification Jeff, very useful and interesting.

mikeash at 2009-11-17 20:18:16:
Simon Wolf: There's a fundamental disconnect in your reasoning. You're correct that I don't have to sign anything to be bound by copyright or trademark law. However, Apple's guidelines are not law. If I sign nothing, I am not bound by Apple's guidelines. I am bound by copyright and trademark law, but they are not the same thing.

In particular, copyright and trademark law have a concept of "fair use" which Apple's guidelines do not acknowledge.

Furthermore, the law is likely to have a different opinion on what constitutes "use" than Apple does. I continue to maintain that simply grabbing an image off a user's computer and then displaying it does not constitute "use".

Lastly, Apple does allow other applications that use other organization's trademarks, under your definition. Airfoil Speakers Touch continues to display the icons of non-Apple applications. Apple has no problem with this whatsoever. Furthermore, Apple itself "violates trademarks" (according to your side of things) constantly with things like the Dock and the Finder.

Simon Wolf at 2009-11-17 22:33:55:
Hi Mike. I'm not going to continue the debate beyond this post because I now realise courtesy of Jeff that my understanding of US (and probably international) copyright and trademark law was flawed so I'm arguing from a position of ignorance! :)

However, one final thing I'd love for someone to clarify for me is how Apple can get away with effectively blocking fair use and what the likely outcome would be if they were taken to court over it. Can they do so simply because the iPhone SDK agreement effectively waives it? I think this is something you alluded to earlier but I didn't understand it then although I do now in light of what you and Jeff have said.

mikeash at 2009-11-18 00:07:28:
Fair use isn't so much a right as it is an exception. Making an unauthorized copy is a violation of copyright unless that copy falls under fair use. (Similar for trademarks.) So, an unauthorized copy that falls under fair use is legal.

But it's not a right. It's just an action that's legal. A contract can restrict you from doing all sorts of legal things. An NDA can restrict what you say. A work contract will restrict what you can do with your time. And this SDK agreement restricts what you can do with Apple's trademarks, beyond what the law itself restricts.

As for what a court would say, that's hard for me to say. If the use in question is in an iPhone app, I'm sure that the court would side with Apple. If the use is elsewhere, but is still being restricted because of the iPhone SDK agreement, I think this would be fuzzier.

Hendrik van der Linde at 2009-11-18 21:37:38:
What may interest you is that these trademark rules probably "propagate".
When you try to sell software though Google's AdWords, for example, it is not allowed to use 3rd party trademarks in your advertisement texts. I can tell you that my ads for SmashTunes (an iTunes 'add-on' for the Mac) are not very successful, without being able to use terms like Mac, iTunes or Apple.
You could argue that Google is effectively making money because of these trademark restrictions, without ever offering any service (i.e. displaying my ads).

Dmitry Chestnykh at 2009-11-19 00:58:18:
Hendrik: This is just Google's thing. I think they're doing this because they are tired of getting sued. They can do whatever they like with their ads platform, for example, ban "the". This has little to do with trademark law.

(By the way, Russian advertising law forbids using any other companies trademarks in ads).

Oh, and if you still can't advertise in AdWords with "Mac" in text, search macsb Yahoo group for email of Apple's contact and write to them.

Steve at 2010-04-20 22:12:06:
Does anyone know if the letter "i" protected by the SDK agreement? Could an iPhone app start with the letter "i"?


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