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The EFF’s Oddly Informed War Apple’s iPhone Apps

Daniel Eran Dilger

An Electronic Frontier Foundation blogger has once again managed to malign the EFF’s own laudable mission as an organization in order to deliver an over the top, incendiary screed about Apple and the iPhone app review process. This time it’s personal, due to an EFF-related iPhone app rejection, but they’re wrong, here’s why.

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The Teapot Tsunami.

At the core of the dramatically hysterical (and I don’t mean funny) rant is the idea that Apple is oppressing parody content because it wants to censor the mobile software users can install on the iPhone. But that isn’t even remotely true, as I’ll get to in a moment.

In particular, the event that triggered the EFF’s umbrage was the rejection of an iPhone app that merely played content from the EFF website, including a parody video that portrayed a scene of Hitler losing it in Downfall, but with added subtitles that portrayed the scene as movie executives upset about YouTube parodies rather than a frustrated Nazi upset about losing World War II.

The clip was intended to be an example of fair use of a copyright work, using a parody to make a parody of objections… to parody as fair use. It also sought to bring attention to the DMCA as an impediment to fair use, as the guy who threw subtitles on the clip was afraid he couldn’t simply rip the movie from the DVD, because that would break the rules on circumventing encryption, something that is illegal on top of any copyright infringement issues, unless a specific exemption is granted to allow the activity.

However, the EFF-badged iPhone app (which was not developed by or endorsed by the EFF) was rejected by Apple for presenting “objectionable content,” which the EFF blogger assumed to be this Downfall clip, because the video “includes the fleeting appearance of the f-bomb in a subtitle.”

Apple Rejects EFF Updates App, Claims Parody Content Is Objectionable | Electronic Frontier Foundation

Fleeing Frying-pan For Fire

Based on this assumption, the EFF’s blogger insists that “Apple playing the role of language police for [users'] software” is a primary reason why the DMCA should provide an exemption to allow unfettered iPhone app piracy, so that people can freely bypass Apple’s entire security system (which is protected by the DMCA) to install cracked apps that provide access to this kind of “objectionable content” rather than just watching this video on YouTube, apparently.

In other words, because there is no alternative to Apple’s iTunes App Store, the EFF is proposing a solution to Apple’s “invasive censorship” of the software it chooses to sell in the iPhone Apps Store by demanding an exemption to the DMCA. That exemption would also eliminate Apple’s legal rights to stop anyone from breaking the iPhone’s security, opening up the iPhone to the same kind of adware, malware, and widespread software piracy as is found on the Windows desktop.

Unlike Microsoft on the PC desktop however, Apple doesn’t have a competition-free monopoly platform in the smartphone arena. By being stripped of control over its own minority platform, Apple would be pushed out of business by competitors who can match most of what Apple offers apart from the consistent integration savvy that the EFF is trying to eliminate.

Apple and EFF argue over iPhone jailbreaking

Prophylactic Platform Protection

The EFF only cites ideological optimism that destroying Apple’s managed platform would result in a utopian market where innovation would flourish because Apple wouldn’t be there to stop anything. The problem is that Apple wouldn’t be there to cultivate this happy garden commune either.

Instead, the iPhone platform would be taken over by third parties seeking to make money without regard for the longevity of Apple’s platform, the very thing that destroyed the Macintosh: Microsoft cloned Apple’s platform based on its intimate knowledge of it as an early developer, then abandoned Apple, and encouraged Adobe and everyone else to follow it instead. Because Apple had essentially given third parties full control of the Mac platform, they could ride it hard and put it away wet, which eventually left Apple with little more than the raw materials for glue.

Nowadays, Apple is working to keep the value of its development work attached to its platform, to maintain strong control over its end of the iPhone business, and to differentiate its mobile platform from those that offer either little in the way of development ease (Symbian), little in terms of usable desirability (Windows Mobile), little in terms of platform security (Android), little in terms of consumer software (BlackBerry), or little in terms of sustainability (WebOS).

The EFF’s mission to destroy DMCA protection of Apple’s mobile platform business model would simply open the iPhone up to third parties that wished to steal its software, mod away its strictly enforced interface usability and dismantle its security system. The result would be that Apple would find itself back in the late 80s, where the only defense it had to stop the outright theft of its software was the ineffectual and glacial court system and a difficult to make case involving copyright infringement.

While the DMCA has its flaws, it is successfully blocking unbridled commercial-backed piracy, forcing anyone who wants to use copyright material to obtain clandestine tools from the grey market, and to act on a small scale about it. Which of course is the whole point of the DMCA: to stop other legitimate companies from profiting from the wholesale theft of other’s content in the way Microsoft repeatedly did to Apple and other companies it stole from.

While the idea of giving individuals carte blanche to use content as they desire with no legal encumbrance is a nice idea ideologically, the reality is that corporations have the same rights as individuals, so relaxing the rule of law “binding” individuals results in scant legal protection for both smaller companies trying to compete against established ones, and legitimate companies under siege by an plague of fly-by-night parasites. It just so happens that Apple fits both profiles at risk from the relaxing of copyright law.

Meanwhile, there is no action being taken to stop individuals who crack their iPhones for personal use, making the EFF’s case a dangerously high voltage taser being heavy handedly pointed towards the perpetrator of a victimless “crime” that is not even illegal.

Jailbreak stores plot to plunder iPhone app revenue

Why iPhone Apps Can’t Give an F-Bomb.

If the EFF’s blogger had ever listened to Steve Jobs talk for more than a few minutes, it would be clear that Mr. F-Bomb Dropper himself is not in business to prevent people from being exposed to profanity. But Apple is in business, and the company is a veritable flame for the moths of nuisance lawsuits and political protestations.

Apple’s also targeting iPhone and iPod touch devices to kids. The company has built parental controls into iTunes and the iPod to enable adults to listen to any music they want while still blocking their children’s ability to purchase or play music containing explicit lyrics.

It does not, however, have a parental controls system in place for iPhone app content. There are rating guidelines, but no administrative system for blocking the purchase or use of apps based on their rating. However, the new iPhone 3.0 software will include “parental controls for TV shows, movies and apps from the App Store.”

Guess how that will affect Apple’s threshold for allowing content that some might find objectionable for their kids? Of course, it doesn’t necessarily mean that the company will dive into distributing porn, but it will clearly raise the ceiling for what might be considered too objectionable to sell in iTunes.

It Isn’t Apple That’s Objecting.

This spring, at Apple’s shareholder meeting, a conservative think tank sent a drone to grill Apple’s executives with a prepared speech about some TV show it found objectionable (Two and a Half Men on CBS) and which Apple sells in the iTunes Store.

Apple’s executives didn’t cower to explain how they were going to take immediate steps to block the TV show on the company’s iPods to safeguard America’s children from mobile access to something they’d otherwise see on terrestrial TV, for free. Instead, the complaint was dismissed by pointing out that Apple has built parental controls into iTunes and the iPod to empower families to make their own decisions.

So is Apple suddenly putting on a prude hat to censor mobile software content the company personally finds “objectionable,” or is it simply acting to prevent lawsuits, complaints and demonstrations against its iPhone apps platform until it has a suitable answer to the question of how to balance freedom of choice in content for adults with freedom from objectionable content to the families it is selling its products to?

Apple shareholder meeting dominated by politics

Consider the source.

The EFF blogger complained that the video Apple “apparently” judged as objectionable was also available uncensored on YouTube, which would make it available on the iPhone as well, suggesting that this was both hypocritical and an example of arbitrary censorship done in retaliation to the EFF’s efforts to destroy Apple’s business model with a DMCA exemption.

The difference is that Apple owns the iTunes Store and bears culpability for what it sells there; the store came under intense fire for allowing a “game” that involved shaking a baby to death, for example. Many of the same people complaining that Apple shouldn’t impose restrictions on developers turned right around to complain about how inappropriate it was for Apple to offer such offensive content.

However, Apple doesn’t own the YouTube service, even though it makes it available through its YouTube player. Nobody could be taken seriously for complaining that offensive content appearing on YouTube is Apple’s fault; that business would have to be taken to Google. However, if Apple released or allowed an “X-Tube” client for the iPhone and distributed it on the phone or from iTunes, that would clearly come under attack for delivering objectionable content to minors, because there is nothing else that service delivers and no current mechanism for parents to block access to it.

At the same time, Apple also ships a web browser on the iPhone that enables anyone to find anything. Again, the nature of the Internet is well known, and nobody could be taken seriously for attacking a company’s browser for displaying objectionable content they dug up on the web. Additionally, Apple enables parents to block access to Safari if they don’t want their children to browse the web without some supervision.

Apple apologizes over Baby Shaker app

Let the Market Decide.

Because Apple has created the iPhone Apps Store as a business it manages under the Apple brand in iTunes, it has to exercise control over the products it sells there. Until it ships iPhone 3.0 with the new parental controls on apps, it is pretty much compelled to keep everything it offers inoffensively tame.

Attempting to portray this reality as the basis for demanding that Apple be divested of control over the business it built, and that this market be handed to the third parties that benefit from it rather than Apple, is no longer an argument for competitive access to the platform and instead simply an effort by the EFF to demand communal ownership of something that was never public to begin with.

The only thing that could legitimately force Apple to rethink its strategy of operating the App Store as store and not as a communal library of apps with no centralized security for users or the platform, is if Google’s efforts to push Android as that very alternative thing begin to encroach on and eclipse Apple’s success. So far, that hasn’t happened

The EFF shouldn’t attempt to impose centralized market planning controls that force the Google business model (which I believe to be flawed) upon Apple. That won’t be necessary until the iPhone becomes the only phone available on the market and no significant competitive pressures are left to deliver alternative options. Until then, there are plenty of real issues for the EFF to worry about.

17 comments

1 gus2000 { 06.03.09 at 1:32 am }

The iTunes App Store is Apple’s sandbox, and they can play whatever game they deem fit. It’s not much different from Sprawl-Mart banning Green Day, although I do consider that to be a dick move since 10 feet from the child-proof music are all manner of R-rated DVDs with far more vulgarity (and nudity to boot).

The story would of course be different if Apple were in a monopoly position, but they have maybe 3% of the smartphone market? Funny how pundits can insist that Apple is simultaneously both a monopoly and a total failure!?!!

Of course, anyone what wants to use AJAX can write any manner of web apps they like for the iPhone. Or they could always switch to WebOS and sell to the Pretards.

2 Apple wijst applicatie over EFF af vanwege f-woord [update] > Nieuws > iPhoneclub.nl { 06.03.09 at 2:49 am }

[...] EFF Voor een compleet andere kijk op de zaak is het ook interessant om het artikel hierover op RoughlyDrafted te lezen. Volgens de auteur is Apple zelf niet preuts en censuurzuchtig, maar zijn de [...]

3 VeoSotano { 06.03.09 at 5:40 am }

But still, some of the rejections apple makes are ridiculous. Like that gorgeous ebook reader they initially rejected because you could find the Kamasutra if you digged through the mountain of classic books. C’mon…

I don’t think they are mean spirited, but I do believe that the few app reviewers are constantly overwhelmed with all the thousands of stuff that goes into the store, flashlights, etc. I think they should hire more people, and give the process more transparency, and not making the developers feel they are talking to a wall.

That doesn’t justify the excessive censorship they are enforcing, though. It is clear that if an app accesses freely (as in speak) accessible content, it shouldn’t be rejected just because some of the content may seam objectionable, as long as this isn’t the main point of the app ( like a porn viewer or such).

4 Etreiyu { 06.03.09 at 8:26 am }

In an all-ages context such as phone apps, Apple MUST act in loco parentis in order to avoid legal harrassmen (if not actual liability); they MUST err on the side of caution in order to stave off the annoyance, expense and distraction of being nibbled to death by the (faux-)outraged – as Daniel has laid out so plainly and clearly (thanx again, Daniel).

Petulant accusations of ‘censorship’ are out-of-line, making the accusers seem childish as well as ignorant…and underscoring the need for the very caution they criticise Apple for displaying….

As a long-time supporter of the EFF, I’m disappointed to see them misfire so totally on so poorly-chosen a target.

5 KA { 06.03.09 at 12:27 pm }

Wow, that’s bad. We need a better App Store, not legal piracy!

6 masternav { 06.03.09 at 2:11 pm }

It would seem that the EFF, along with Greenpeace, need to leverage the media cachet of Apple to maintain enough public profile to remain viably in the public eye. More’s the pity because I truly support some of what EFF does. But when they go off without enough facts it seriously undermines their creds.

7 obiwan { 06.03.09 at 2:41 pm }

Hmmm… how can you watch an objectionable video on YouTube
without going through Apples YouTube App, on your iPhone ?

So, to get this straight, the RSS reader pointed to a blog entry,
and this blog entry pointed to a YouTube video, which was finally
played be Apples YouTube App ?
To reject the RSS reader for that reason is simply ridicolous.

I think it has more to do with Jobs relation to Disney …

8 Etreiyu { 06.03.09 at 2:51 pm }

For those without children: to minimize legal liability, Apple needs to maintain a “raw” iPhone as a G-rated environment. You may not get it; you may think it’s stupid; clearly, Apple considers this ‘geek annoyance syndrome’ unimportant when weighed against other opinions. An individual may use the available tools to find what it wants to find; however, *presenting* it to the casual user (a child, say, playing with Mommy’s phone) would be a form of market-place negligence they can do without.

9 daGUY { 06.03.09 at 4:38 pm }

“The difference is that Apple owns the iTunes Store and bears culpability for what it sells there”

But Apple also owns the iPhone itself, which includes Safari, which can be used to view the exact same “objectionable” content. If they’re not going to let the EFF app in because it would make them liable for the objectionable content, then they should also block the site that the app got its content from in Safari.

I don’t understand why they’re liable one way but not the other, when they provide BOTH methods of viewing the content.

10 Jesse { 06.03.09 at 11:05 pm }

Daguy, obiwan:

Please exercise some reading comprehension. Your points are addressed specifically and comprehensively in the article.

I’m sure you would have intelligent new things to say if you realized your current points had no merit.

11 deardeveloper { 06.04.09 at 12:32 am }

Daniel Eran:

Knowing you are a specialist of pundits and tech industry media, I am curious to get your take on Leo Laporte and his opinions on the Mac. I know that he uses them, likes them, etc. and he has even had you on his show. I do like his personality, but sometimes I think he just helps hype up some of the most unworthy technology, acting like someone’s “me too” junk technology is as good as some of Apple’s best innovations. It drives me crazy when he does this. Anyway, just wanted your take. Thanks.

12 melevittfl { 06.04.09 at 8:41 am }

Dan,

The EFF is arguing that the owner of a device should not be committing a federal crime by modifying their own property to run applications not distributed by Apple.

However, all of your arguments make is sound as if the EFF is asking that Appple be stopped from protecting their content or removing any sort of security system. And you accuse the EFF of dramatic hysteria!

[The solution the EFF proposes (a DMCA exemption) is intended (and explicitly worded) to strip Apple of any rights to sue over circumvention of its security system. But every action has unintended consequences. Apple is not suing users who jailbreak their own iPhones, so the EFF's remedy is political, not practical. Assigning everyone the right to circumvent the iPhone's security would also give companies the right to take actions that would make it impossibly difficult for Apple to maintain its business model.

Why do you think it is dramatic and hysterical to say the EFF is against Apple "protecting their content or removing any sort of security system" when that is exactly what the EFF is requesting? This isn't even controversial. You can word things in a way that sound nice, but you can't argue that the EFF isn't working to circumvent Apple's security system and make the appropriation of its software virtually unenforceable when that's exactly the EFF's goal!]

Allowing an exemption to the DMCA to let people modify their own property does not mean people can suddenly install cracked iPhone applications or pirate the iPhone OS itself.

[No, people can already do that. What "allowing an exemption to the DMCA" does that is new is allow companies to wholesale steal Apple's software and give the company no alternative but to try to push copyright claims, as it has to do with Pystar. It also facilitates widespread piracy of iPhone apps by organizations that can claim they are doing something legal. ]

Apple’s Macbooks don’t prevent users from installing whatever software they like. Macbooks are not riddled with viruses, nor is the Macbook software market flooded with inferior and/or pirated titles.

[MacBooks aren't connected to or subsidized by a mobile network. They're also installed behind NAT firewalls, rather than operating in a wildly open network environment. They also do not have a software model like the App Store that enables rapid deployment of potentially viral software were there no security in place. Macs are not iPhones. They also do not browse 50% of the world's desktop web traffic. Without security, the iPhone would be in the position of Windows, not the Mac.]

And, de-criminalising the jailbreaking of iPhones does not mean Apple’s business will be destroyed. That’s a ridiculous argument. People can buy OSX applications from anywhere. That hasn’t destroyed Apple’s software business. Or perhaps more pertinent, people can buy CDs and MP3s from many places. That hasn’t destroyed Apple’s iTunes Music store.

[A "ridiculous argument" is making a fiat statement without backing it up.

Apple has no real software business on the Mac. It gives away most software at shareware prices apart from its Pro software. The Mac software market is actually pretty weak compared to what Apple has created for the iPhone, which is why there are Mac developers talking about abandoning Mac efforts to do iPhone apps.

And in case you didn't notice, MP3s did destroy the music business. Apple's iTunes Music Store is doing really well for an online music store, but is not even significant in comparison to the CD market or MP3 file trading volumes. It is a supporting service Apple runs as a self-sustaining charity.

Have you noticed the vast billions Apple earns from selling iPhone software? No, iPhone Apps are similarly a self-sustaining charity to prop up iPhone sales. How well has "choice" worked out for PlaysforSure and Android? ]

Most people won’t jailbreak their phones because they don’t want to void the warranty or risk problems or, even, want applications Apple hasn’t certified. But, that doesn’t mean the government should make it a crime for someone to do so.

[The government makes it a crime to circumvent encryption to hold back the tides of vast scale piracy. If things aren't locked up, people steal them. If it isn't possible to legally stop people who are defeating your locks, there's no recourse to stop them from wholesale raiding of your content. This is frigging obvious.

Name an industry that enables users to steal anything they want where the said goods have any remaining value.

There aren't any. That's why Apple is taking on content piracy with low prices and heavy marketing. The EFF is trying to prevent Apple from having any defenses to secure its content so that low cost, high volume software sales are impossible. If that were a good idea, it would have worked elsewhere. It hasn't. - Dan]

13 hmciv { 06.04.09 at 1:18 pm }

Apple isn’t just protecting Apple. They’re protecting AT&T and every other iPhone carrier out there. EFF should remember there’s more threats to networks out there than they can shake a baby at.

14 VeoSotano { 06.06.09 at 6:52 am }

Hmmm…. as a thought: if it is the G rating the iPhone as to maintain, why not just put the warnings/ratings on the app store description page, instead of prohibiting the app? That way, it would be the parent’s responsability to not install any software that would “harm” their children if they play with the phone. The children couldn’t install apps themselves anyway because the app store always asks for a password…

15 sharp_jiang { 06.06.09 at 8:07 am }

hello,daniel.
there seems to be something wrong with the essay title.
can you correct that!
“The EFF’s Oddly Informed War Apple’s iPhone Apps”

16 melevittfl { 06.06.09 at 10:42 am }

“Why do you think it is dramatic and hysterical to say the EFF is against Apple “protecting their content or removing any sort of security system” when that is exactly what the EFF is requesting? This isn’t even controversial. You can word things in a way that sound nice, but you can’t argue that the EFF isn’t working to circumvent Apple’s security system and make the appropriation of its software virtually unenforceable when that’s exactly the EFF’s goal!”

I can argue exactly that, because it’s demonstrably untrue. Show me where in the proposed exemption where the EFF says they want to stop Apple from “protecting their content?”

The only thing the EFF is asking for is an exemption to allow people to modify their own copy of the iPhone’s firmware for the “sole purpose” of loading and executing applications that Apple did not distribute.

You are conflating “allowing people to modify the iPhone to load applications that aren’t signed” with “protecting Apple’s content” That’s not at all what the EFF is asking.

In no way would this exemption make Apple’s ability to enforce their copyright less powerful (actually or virtually).

“What “allowing an exemption to the DMCA” does that is new is allow companies to wholesale steal Apple’s software and give the company no alternative but to try to push copyright claims, as it has to do with Pystar.

I don’t understand how you go from an exemption that says “modifying your own copy of the iPhone firmware so that it allows loading and executing of applications not signed by Apple is not a criminal offence” to companies can steal Apple’s software? Even if the copyright office grants this extension, it doesn’t give anyone the right to distribute Apple’s software. If a company was distributing Apple’s firmware, they’d be just as guilty of copyright infringement under the EFF’s proposal as they are now. Pystar is modifying *and distributing modifies copies of* Apple’s software.

What it would allow companies to do is sell me a program that I can run on my computer that modifies my copy of the iPhone firmware.

“It also facilitates widespread piracy of iPhone apps by organizations that can claim they are doing something legal. ”

The EFF explicitly says that the exemption should be granted for only “lawfully obtained software”. So, I’m not sure how it “facilitates” anything. Just because someone might claim something is legal doesn’t make it so, and even if they do, I don’t see how granting this exemption makes the situation any worse.

“MacBooks aren’t connected to or subsidized by a mobile network. ”

You’re arguing that because iPhones can use a cellular network, then the operators of the network need to control which applications can connect to them and if they don’t, chaos will ensue. This is the same argument that Ma Bell made to prevent people from plugging in a third-party telephone into AT&T’s landline network in the 1960s. It meant you could only get a phone from AT&T, you could only rent it, not own it, and nobody else was allowed to compete with AT&T on the price or capabilities of telephone. It also meant, as an example, that deaf people couldn’t use the phone because AT&T wasn’t interested in making telephone equipment for a niche market and nobody else could either.

“They also do not have a software model like the App Store that enables rapid deployment of potentially viral software were there no security in place. ”

Again, how does granting an exemption that allows me to legally modify my own iPhone lead to Apple’s App Store becoming a distribution point for viral software? You are conflating the security of the iPhone to prevent unsigned applications with the security of the App Store. They’re two entirely different things.

“Apple has no real software business on the Mac. It gives away most software at shareware prices apart from its Pro software. The Mac software market is actually pretty weak compared to what Apple has created for the iPhone, which is why there are Mac developers talking about abandoning Mac efforts to do iPhone apps.”

This is government protectionism. You’re arguing that the government should continue to make it illegal for people to be able to modify their iPhones so they can install Apps that Apple doesn’t sell because Apple makes money selling those Application. Well, Ford makes money selling spare parts for their cars, but that doesn’t mean other companies should be prevented from supplying aftermarket spark plugs for Ford engines.

“The government makes it a crime to circumvent encryption to hold back the tides of vast scale piracy. If things aren’t locked up, people steal them. If it isn’t possible to legally stop people who are defeating your locks, there’s no recourse to stop them from wholesale raiding of your content. This is frigging obvious.”

It would be “frigging obvious” if that’s what the EFF was asking the government to do. They are not asking for any exemption that allows people to break the locks in order to steal any content. If that’s what people do (which they can do today) then Apple will have just as many legal options to stop them as they do now.

Nothing in the EFF’s proposal would make it legal to steal anyone’s content. Nothing in their proposal would make it legal to bypass any security that would prevent stealing of content.

Perhaps you should let your readers find what the EFF is *actually* asking for and let them decide:
http://www.eff.org/files/filenode/dmca_2009/EFF%2BRM%2Bproposals.pdf

17 Wired’s David Kravets assails Apple over the EFF’s DMCA iPhone case — RoughlyDrafted Magazine { 07.29.09 at 4:55 pm }

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