[vlc-devel] [LONG] VLC on iOS and legal analysis
Jean-Baptiste Kempf
jb at videolan.org
Mon Nov 1 00:28:07 CET 2010
tl;dr version: lawyers are boring, FSF is FUDing, AppStore terms have changed,
answer is not simple. Jump to Conclusion of II. and III.
Longer version
So, a lot of press, a lot of bad faith and FUD has been around.
This mail tries to detricate this s**tty mess.
Personnal DISCLAIMER:
---------------------
Let's start by my opinion, since, as not being a robot, I am biaised.
Also IANAL
I dislike AppStores, because they make me more work, for no benefits.
But, let's face it, AppStore are going to be more and more common,
MacStore (10.7) and WinStore (Win8), not to mention iOS, Android, and Ovi.
And those will be the natural way of installing software. If you don't
beieve so, you should really speak to users...
But my political opinion on AppStores is not relevant to the legality of
VLC on those AppStores. And guess what, nor is FSF political opinion!
I really dislike when people use VLC to advance their _own_ political
agenda. And that is true when it is Apple, Microsoft, Google or the FSF.
There is a minimum of politeness that is essential and that was not
respected...
And I HATE bullshitors...
I really like RMS past work and actions, but I don't like how the FSF is
using the situation here.
I also strongly believe that the freedom is to open VLC on as many
platforms as possible.
And as VideoLAN does not force copyright assignments, I believe VLC is
more open that many FSF/GNU projects...
Finally, and more importantly, if there is any actual legal issue regarding
VLC and one AppStore term, it should be removed from this AppStore.
Oh, and btw, I do not thank people who force me to write such posts,
when I have better to do, like working on Blu-Ray playback...
Oh, and btw², the next person that says it is obvious and simple, I will
force them to compile VLC+Contribs for Win32 3 times.
0. Introduction:
----------------
Now, that you have read the necessary disclaimer, let's start.
First, and foremost, the issue is not regarding VideoLAN... But between
the submitter on the AppStore and VLC developers.
Then, VLC is using GPLv2+ for some reasons, that one can see on
http://www.videolan.org/press/2007-1.html VLC is not using GPLv3
A few documents are MAJOR and need to be read now, in order to stay
factual and not BSors:
- VLC GPLv2 license http://www.gnu.org/licenses/gpl-2.0.html
- Latest AppStore terms: http://www.apple.com/legal/itunes/us/terms.html#APPS
I. FSF statement:
-----------------
The FSF post http://www.fsf.org/blogs/licensing/vlc-enforcement/ speaks
about "VLC developer takes a stand against DRM enforcement in Apple's
App Store" and I don't see any post regarding DRM. VLC and VideoLAN have
been projects that have fought DRM since a long time, as the libvdcss
integration shows.
The post refers to
http://www.fsf.org/news/blogs/licensing/more-about-the-app-store-gpl-enforcement
which is the important document, and was about the Gnu GO thing.
And this second post emphasis one 2 quotes:
1) "In the App Store Terms of Service, the programs that you download
from the App Store are called "Products" (the definition is in section
4). In section 9(b), the Terms set out "Usage Rules" for the software:
You acknowledge that Products contain security technology that
limits your usage of Products to the following applicable Usage Rules,
and, whether or not Products are limited by security technology, you
agree to use Products in compliance with the applicable Usage Rules."
2) "Some people have pointed out that the App Store Terms of Service
say that a separate license to the software is provided to you by the
developer, and that's true. But the Usage Rules are imposed on you no
matter how the software is licensed. The Terms themselves make this
explicit this in section 9(c), which says:
The Usage Rules shall govern your rights with respect to the
Products, in addition to any other terms or rules that may have been
established between you and another party.
That's the problem in a nutshell: Apple's Terms of Service impose
restrictive limits on use and distribution for any software distributed
through the App Store, and the GPL doesn't allow that. This specific
case involves other issues, but this is the one that's most unique and
deserves explanation."
And guess what, the AppStore terms have changed!
--------------------------------
Try to grep "Products contain security technology" and "in addition to any other"
on the above document.
If you don't know how to grep, try "man grep" and "man curl"
Maybe the FSF statements made Apple change the ToS, maybe Rémi's
complaint, maybe... $(put whatever you want here).
Conclusion of part I.
---------------------
The FSF statement is not valid anymore, and therefore the
http://www.fsf.org/blogs/licensing/vlc-enforcement/ is just plainly
wrong (or FUD)
Therefore, we need to analyze ourselves... Nice.
Analysis of the AppStore terms part II and part III
===================================================
The part named:
C. APP STORE AND IBOOKSTORE TERMS AND CONDITIONS
is relevant to the discussion.
And especially
"ADDITIONAL APP STORE TERMS AND CONDITIONS"
with 2 subitems:
1) "LICENSE OF APP STORE PRODUCTS"
2) "APP STORE PRODUCT USAGE RULES"
II. Analysis of the AppStore terms - part 1 ("LICENSE OF APP STORE PRODUCTS")
-----------------------------------------------------------------------------
My comments starts with ->
'The software products made available through the App Store (the “App
Store Products”) are licensed, not sold, to you. There are two (2)
categories of App Store Products, as follows: (i) those App Store
Products that have been developed, and are licensed to you, by Apple
(the “Apple Products”); and (ii) those App Store Products that have
been developed, and are licensed to you, by a third-party developer (the
“Third-Party Products”). The category of a particular App Store
Product (Apple Product or Third-Party Product) is identified on the App
Store Service application.'
-> VLC on iOS is a “Third-Party Products”. No discussion here, I guess.
'Your license to each App Store Product is subject to the Licensed
Application End User License Agreement set forth below. You agree that
the terms of the Licensed Application End User License Agreement will
apply to each Apple Product and to each Third-Party Product that you
license through the App Store Service, unless the App Store Product is
covered by a valid end user license agreement entered into between you
and the licensor of the App Store Product (the “Licensor”), in which
case the Licensor’s end user license agreement will apply to that App
Store Product. The Licensor reserves all rights in and to the App
Store Product not expressly granted to you.'
-> _Important_ part:
"unless the App Store Product is covered by a valid end user license
agreement entered into between you and the licensor of the App Store
Product"
This means that if VLC has a "valid end user license agreement",
the Apple "Licensed Application End User License Agreement" does not
apply to them.
If it doesn't, then, this Apple LAEULA applies and are obviously not
compatible to the GPLv2
'You acknowledge that the license you purchase to each Apple Product
that you obtain through the App Store Service is a binding agreement
between you and Apple. You acknowledge that: you are purchasing the
license to each Third-Party Product from the third-party licensor of
that Third-Party Product (the “Application Provider”); Apple is acting
as agent for the Application Provider in providing each such
Third-Party Product to you; and Apple is not a party to the license
between you and the Application Provider with respect to that
Third-Party Product. The Application Provider of each Third-Party
Product is solely responsible for that Third-Party Product, the
content therein, any warranties to the extent that such warranties
have not been disclaimed, and any claims that you or any other party
may have relating to that Third-Party Product.'
-> for VLC on iOS, "Apple is not a party to the license
between you and the Application Provider with respect to that
Third-Party Product."
Nothing blocking the GPLv2
'You acknowledge and agree that Apple and its subsidiaries are
third-party beneficiaries of the Licensed Application End User License
Agreement or the Application Provider’s end user license agreement,
as the case may be, for each Third-Party Product. You also agree that,
upon your acceptance of the terms and conditions of the license to any
such Third-Party Product, Apple will have the right (and will be deemed
to have accepted the right) to enforce such license against you as a
third-party beneficiary thereof.'
-> "as the case may be" => not applicable.
Apple has the right of enforcing 3rd party licenses on the AppStore
Nothing blocking the GPLv2
'Certain App Store Products may include functionality that enables you to
purchase additional services, or licenses to additional functionality or
content for use within the App Store Product ("In App Purchases"). In
App Purchases that are consumed during the use of the App Store Product
(for example, virtual ammunition) cannot be transferred among devices;
can be downloaded only once; and after being downloaded, cannot be
replaced. Once a consumable In App Purchase is purchased and received
by you, Apple shall be without liability to you in the event of any
loss, destruction, or damage. All In App Purchases are deemed App Store
Products, and In App Purchases made within Third-Party Products are
deemed Third-Party Products, and treated as such, for purposes of these
terms and conditions.'
-> VLC iOS is not concerned by "additional services or functionality"
Conclusion of II. Analysis of the AppStore terms - part 1
---------------------------------------------------------
The AppStore terms don't seem to block any open source application.
To me, it seems that this part resolves to the question
If the GPLv2 is:
"a valid end user license agreement entered into between you and the licensor
of the App Store Product" ?
GPLv2 §0 says:
"Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running
the Program is not restricted, and the output from the Program is
covered only if its contents constitute a work based on the Program
(independent of having been made by running the Program). Whether that
is true depends on what the Program does."
This can be interpreted as an VEULA ("The act of running the Program is
not restricted") and can be interpreted differently. I have to say that
this is a kind of grey area to me, not to mention what "valid" means?
If this really matters, submitters of the iOS application on the
AppStore can add a very simple VEULA that is compatible to the GPLv2.
III. Analysis of the AppStore terms - part 2 ("APP STORE PRODUCT USAGE RULES")
------------------------------------------------------------------------------
My comments starts with ->
APP STORE PRODUCT USAGE RULES
'(i) You may download and sync a Product for personal, noncommercial use
on any device You own or control.'
-> I don't see any restriction on usage , "may not", "should not", "not allowed to"
or anything restricting the user freedoms.
'(ii) If You are a commercial enterprise or educational institution,
You may download and sync a Product for use by either (a) a single
individual on one or more devices You own or control or (b) multiple
individuals, on a single shared device You own or control. For example,
a single employee may use the Product on both the employee's iPhone and
iPad, or multiple students may serially use the Product on a single iPad
located at a resource center or library.'
-> Again, I don't see any restriction on usage, any "may not" or "not
allowed to"
'(iii) You shall be able to store App Store Products from up to five
different Accounts at a time on compatible iOS-based devices.'
-> Here I don't understand the "from up to", so I have a very hard time
answering this part.
Does it mean that "whatever license of the Product, you shall always
be allowed to store the Product on at least 5 iOS devices" or
"You are not allowed to store the Products on more than 5 iOS devices" ?
'(iv) You shall be able to store App Store Products on five
iTunes-authorized devices at any time.'
-> This is mostly the reverse same question.
'(v) You shall be able to manually sync App Store Products from at least
one iTunes-authorized device to devices that have manual sync mode,
provided that the App Store Product is associated with an Account on the
primary iTunes-authorized device, where the primary iTunes-authorized
device is the one that was first synced with the device or the one that
you subsequently designate as primary using iTunes.'
-> No restrictions here
The GPLv2§6 seems to say
"You may not impose any further restrictions on the recipients' exercise
of the rights granted herein", and those rights are "copy, distribute or
modify the Program subject to these terms and conditions"
I don't see the GPLv2 saying "You may not impose any further
restrictions on usage"
Conclusion of III. Analysis of the AppStore terms - part 2
----------------------------------------------------------
Well, I believe this part is more tricky and the lawyer-language is made
to f**k normal people understanding.
(i), (ii) and (v) are not restricting anything on VLC on iOS usage
(iii) and (iv) are subject to interpretation, and I still have a hard
time on these part.
Both (iii) and (iv) seem to grant rights, "shall be able to" and
not restrict "DO NOT ALLOW" (as used in the rest of the AppStore
document.
It also seems one can create as many iTunes account as he wants.
Moreover, I have a hard time understanding if the GPLv2 forbids
adding extra restrictions on usage or not.
IV. Conclusion
--------------
Concluding is quite hard here. The AppStore terms may or may not be
compatible with the GPLv2 and VLC license, depending on the
interpretation.
See Conclusion of II and Conclusion of III.
Conclusion of part II seems to be work-aroundable, whatever the
interpretation.
Conclusion of part III probably needs Apple to detail more what they
mean with part (iii) and (iv) of USAGE RULES of APPSTORE PRODUCTS
Also, it should be noted that the VLC on iOS source code and binaries are
on the videolan.org website, and anyone can modify and recompile VLC for
iOS at any time, and redistribute it, through the mean he wants.
And that are the important rights of GPLv2.
I did my best to be objective, please do not flame me.
PS:
And I have to remind that "the issue is not regarding VideoLAN... But between
the submitter on the AppStore and VLC developers."
PPS:
The submission terms are a private contract between the submitter and Apple,
and, are not relevant to the terms of redistribution and usage, like for
normal Xcode developer account.
--
Jean-Baptiste Kempf
http://www.jbkempf.com/
+33 672 704 734
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