It's not just Apple developers that are threatened by Lodsys

Lodsys, a patent holding company—or patent troll—has been threatening iOS app developers with lawsuits over in-app purchasing functionality. It’s not just an issue for Apple’s (AAPL) ecosystem of iOS app developers, it has serious implications for enterprise IT people.

Well, at the risk of crassly misusing Pastor Martin Niemöller’s famous anti-Nazi text: First they came for Apple, then they came for the app developers, then they came for me.

In other words, the natural next step for a software patent troll is to work down the value chain—ultimately going after the users. One of the most notorious examples is when The SCO Group—little more than a shell for a patent troll—sued AutoZone and DaimlerChrysler. It’s no stretch to conclude that Lodsys has a little list, and you’re next on it.

Lodsys, after days of echo-chamber-speculation about its motives, came out at the weekend with a thought-provoking FAQ-cum-apologia. Let’s take it point-by-point:

Apologies for taking some time to respond, however the “flash mob” speculation of the blogs/press, the amazing amount of spam (death threats, hateful bile) … it’s taken some weekend time.

Nonsensical sentence construction apart, the misdirection starts immediately. The phrase “flash mob” implies some sort of invisible hand guiding the response to the Lodsys threats of lawsuits—a conspiracy theory, if you will.

Balderdash. If you prick a thousand app developers, do they not bleed? There’s no man behind the curtain guiding the bloodletting.

The economic gains provided by the Lodsys inventions … are being enjoyed by the business that provides the product or service that interacts with the user.

In other words, app developers should pay us, because they make money from in-app purchases and upgrades. But Lodsys goes on to illustrate its point with an ill-thought-out metaphor, suggesting that to not charge app developers would be like forcing hotel guests to directly pay the manufacturer of the nails used to construct the hotel.

Of course, this is an utterly ridiculous, bass-ackwards metaphor—in reality, it’s Apple who is the nail manufacturer here. It’s up to Apple to license the technology that its platform functions use, so that those functions can be, in turn, legitimately called by developers.

Q: [Is] Lodsys trying to force Apple to take a license by pressuring iOS developers?

A: No, that’s not what’s happening. Apple is licensed for its nameplate products and services.

Err, or in other words, yes. In fact, as Lodsys makes clear later, this is exactly the strategy.

If you were to say “black is white,” that wouldn’t make it reflect any more light, it would only make you appear to be a manipulative, misdirecting fool.

Q: What about other Operating Systems such as Android?

A: So far no one has asked this, or speculated on it, but…

No one asked? So why answer it?

Oh, yes, because it supports the ludicrous assertion that app developers should pay to use iOS platform functionality. Give me a break.

Q: Why isn’t Apple … taking care of this issue?

A: The scope of their current licenses does NOT enable them to provide “pixie dust” to bless another … application. … So far such discussions haven’t taken place.

Ah, here it comes: Confirmation of the hint made in the previous two sections that the license agreement with Apple specifically excludes the functionality that’s baked into the iOS platform. Lodsys only licensed the use of the iOS functions, not the implementation of the functions themselves.

It’s not clear whether Lodsys sneakily engineered the licensing this way, or whether Apple really thought it proper for developers to have to pay up. Saying “so far such discussions haven’t taken place” sounds like a carefully-worded phrase—should we read it as “Apple didn’t ask” or “we didn’t offer?”

Whatever the case, it doesn’t change the fact that it’s the iOS platform that’s doing the work, just like it’s the nails that hold the hotel together, not the guests.

Many industries study the IP landscape prior to releasing a product or service and either design around or acquire necessary patent rights. … Historically, the tech industry … builds and ships now, and worries about clearing the patent rights later.

If Lodsys was being genuine here, it would acknowledge that it’s basically impossible to do this, given the crazy state of software patents—particularly in the U.S., where the Patent and Trademark Office is essentially broken.

I’m forced to conclude that Lodsys is either acting in bad faith, or run by idiots.

Q: What are you charging?

A: Surprisingly, no one has asked this question.

Again with the FAQ that nobody asked? Let alone “frequently”! Enough of this jibber-jabber; page two is more of the same tosh.

What should we conclude?

My analysis is that Lodsys is playing a dangerous game of chicken. Its strategy is to force Apple into paying further license fees, in order to make this distraction go away.

If successful, Lodsys will move on to the other major app platform vendors: Android’s Google, RIM, and Microsoft.

Whether this was Lodsys’s strategy all along isn’t clear. However, to assume so might be crediting Lodsys management with more strategic intelligence than they have.

Suffice to say that Apple’s legal department needs to squash this stupidity with all possible speed. Lodsys may hope that Apple will just cave and pay up some more, but it’s my hope that—for the good of the industry—Apple Legal sues the heart out of Lodsys. In the same way that Novell, IBM, and others counter-sued SCO over its ridiculous assertions of intellectual property, and handsomely won.

[Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and security. He’s also the creator and main author of Computerworld’s IT Blogwatch.]

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