Legal Issues: iPhone Games

Posted by Dan on March 18, 2009

Under Development Law has a review on legal issues that developers of iPhone applications should be aware of. While some of them are seemingly common sense, such as “any music used in your game needs to be licensed to you or owned by you,” some of them are a little more sneaky, such as “Under the SDK Agreement developers are required to comply with “all applicable privacy and data collection laws”.

And of course there’s the obligatory “stay away from viral open source code” issue, though Groklaw has a quote from Professor Eben Moglen of the Free Software Foundation that seems to say otherwise:

Suppose a company really did mingle GPL code into a program with their own proprietary code and then distributed the merged product under a proprietary license or without living up to the terms of the GPL? Now what happens? What will the judge do now? Order the code released under the GPL over the wishes of the owner? ….Here is Professor Moglen’s explanation of what happens:

“Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn’t say in the event of trouble “But, judge, the licensee promised me he wouldn’t do what he’s doing now.” The licensor plaintiff says ‘Judge, the defendant is redistributing my copyrighted work without permission.’ The defendant can then either agree that he has no permission, in which case he loses, or assert that his permission is the GPL, in which case he must show that he is obeying its terms. A defendant cannot simultaneously assert that the GPL is valid permission for his distribution and also assert that it is not a valid copyright license, which is why defendants do not ‘challenge’ the GPL.

“The claim that a GPL violation could lead to the forcing open of proprietary code that has wrongfully included GPL’d components is simply wrong. There is no provision in the Copyright Act to require distribution of infringing work on altered terms. What copyright plaintiffs are entitled to, under the Act, are damages, injunctions to prevent infringing distribution, and–where appropriate–attorneys’ fees. A defendant found to have wrongfully included GPL’d code in its own proprietary work can be mulcted in damages for the distribution that has already occurred, and prevented from distributing its product further. That’s a sufficient disincentive to make wrongful use of GPL’d program code. And it is all that the Copyright Act permits.”

So, mingle your licenses, and you may have to pay damages, or lose distribution rights in the App Store, but you’re probably not going to lose your code.

One thing that wasn’t mentioned directly was trademark infringement for services. For instance, in my work with Wikimedia, I’ve probably reviewed dozens of requests to create an App Store program using the Wikipedia name. Some of them were already in advanced stages of development. Inevitably, the majority of these were declined. How much would it suck for you to work for weeks or months on a program, then be slapped in the face with damages and an injunction because you forgot to get trademark permissions before hand?

This is a growing problem with independent developers, who typically lack any sort of legal department to handle these things. Secure your licenses BEFORE developing! If you didn’t create it, if you reference something, LICENSE IT. Better to find out early in the development process than at the end of a painful development cycle, especially if you have investors.

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