EFF publishes iPhone developer agreement

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If you’ve followed the news of App Store rejections over the past couple years, you may have wondered what exactly is engraved upon the stone tablets that govern the terms of Apple's App Store and developing for the iPhone. The trouble is we haven’t been able to tell you, as the agreement itself contains terms that prohibit publicly discussing it. But on Monday, the Electronic Frontier Foundation (EFF) legally obtained and published a copy of the agreement for the first time.

In order to do so, it had to take advantage of a legal loophole. EFF noticed that NASA had created an application for the iPhone, and NASA—being a government agency—is subject to the Freedom of Information Act. EFF requested a copy of the agreement and a revision dated March 17, 2009 was provided. (If you’re curious about the date, note that it was the day that Apple held its event announcing iPhone OS 3.0. The SDK agreement has reportedly been revised since then, so parts of the document may have changed.)

While EFF draws attention to what it terms “troubling highlights” of the agreement, there isn’t necessarily very much that’s surprising if you’ve been following the iPhone development scene for any amount of time. Apple has written in a number of restrictions, including preventing apps developed with the SDK from being distributed outside of the App Store, a ban on reverse engineering, and a prohibition on interfering with the iPhone’s security software, which is the foundation of the fight over legalizing jailbreaking. (If you’re interested in reading the full document, it’s available on EFF’s site as a PDF.)

The EFF portrays the agreement as woefully one-sided, but as an organization dedicated to advocacy of technology issues, that’s not supremely shocking. No document—especially one concocted by lawyers—is perfect. While I’m not a lawyer, my understanding is that legal professionals tend to paint agreements like this with broad strokes, to prevent their clients from running into unforeseen circumstances. In this case, though, I think that the language of the agreement has to be balanced with Apple’s track record in enforcing it.

For example, though EFF draws attention to a provision in the agreement that says Apple can “revoke the digital certificate of any of Your Applications at any time,” that’s a measure that Apple has never used. Apple CEO Steve Jobs himself said that the functionality exists in the case of an application that does something malicious—stealing personal data, for example. And, as far as we know, the so-called “kill switch” has never been used, despite numerous apps being removed from the store. (My own phone, for example, still has a perfectly functional copy of tethering application NetShare, despite its being banned eighteen months ago.)

Likewise, while the document prohibits public statements discussing the terms of the agreement, Apple has in no way moved to quash the many places on the Web where you can find a copy of the agreement. [ Update: Nate Cardozo of EFF dropped me a line to point out that the SDK agreement and the iPhone developer agreement are actually distinct documents, though they share much in common. The developer agreement, which is what you agree to when you pay Apple's $99 per year, has been far harder to get ahold of, hence the Freedom of Information Act filing.] It does, however, mean that developers are wary of discussing the terms, for fear of getting in trouble with Apple.

When it comes to application rejections, Apple’s record is murkier. The terms of the agreement have been written extremely broadly, and the company has made it clear that it sees the App Store not as a free market, but as a store in which it gets to exercise final say on what products it stocks on its shelves. As a result, it hasn’t been shy about wielding that power to remove applications that it deems unsuitable.

That said, every developer in the store has agreed to these terms and knew the risks upon signing up. If a developer deems the terms unreasonable, then the alternative is to take a stand and do something about by whatever means available—not participating in the App Store, for example.

For my part, as somebody writing about these issues, the most frustrating part of the agreement has been the ban on public statements. I can see why Apple believed it was in its interest to keep the agreement private, but in the long term I think it’s done more harm than good, both in terms of contributing to the perception of Apple as overly secretive and by gagging developers from speaking publicly about their issues. Apple’s platform remains wildly popular despite what some consider Byzantine restrictions—the company shouldn’t be afraid of a little discussion.

Update: Edited at 1:05PT to clarify the difference between the SDK agreement and the developer agreement.

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