[vlc-devel] [LONG] VLC on iOS and legal analysis

[Joel Rees]

Sorry for butting in and playing the bull in the China shop, but I thought maybe I could offer some comments on Jean-Baptiste Kempf's analysis.

Caveat, I Am Not A Lawyer. I just have the hubris to think I understand American English legalese. Sort of.

---------Quote----------
Try to grep "Products contain security technology" and "in addition to any other"
on the above document.
---------End-quote---------- 

True, it is not explicitly referenced in the current version of the terms.

The key being explicit vs. implicit. However, Brett Smith probably should update his post on the subject to reflect the current state of things.

---------Quote----------
 -> "as the case may be" => not applicable.
    Apple has the right of enforcing 3rd party licenses on the AppStore
    Nothing blocking the GPLv2
---------End-quote---------- 

A potential issue here is whether all the copyright owners in the software item uploaded to the appstore agree to allow Apple to act in their behalf (or otherwise) in enforcing the GPL.

---------Quote----------
[...] 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.'

 -> VLC iOS is not concerned by "additional services or functionality"
---------End-quote---------- 

... at this point in time. 

But what happens if someone decides to include VLC in an app that does enable/control purchases of additional services? 

The code of said product would have to be very carefully written and licensed to separate the software that regulates such additional services from VLC. 

I would put this in the same class as the indirect restrictions that Novell and Microsoft are attempting in "licensing" Microsoft's IP for Novell's SUSE. (Indirect is not supposed to be allowed, but at present there is no one with the money and time to push such a suit through court, knowing that it would have to be taken to the Supreme Court to determine just how indirect indirect can be.)

Essentially, DRM is being implicitly invoked here. Apple should just come right out and say, "If the app includes DRM, the end user must obey the DRM rules." Except applicable law on the subject should already be sufficient there. Really, Apple is covering their backside unnecessarily here.

Incidentally, Apple is sort of trying to have their cake and eat it too. They say they are not a party to 3rd party licenses, but they claim some (partial?) right to enforce them. 

Not so much a specific GPL problem as much as a problem where some (probably junior) staff member has put in boiler-plate terms and nobody has noticed that the resulting legalese has internal conflicts.

But the result does potentially cause issues with the GPL, as well, and they are related to DRM.

---------Quote----------
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" ?
---------End-quote---------- 

That is a murky question for some. The GPL is a license, but it is not a contract. It is valid, and it is comparable to an EULA, but it is not an agreement. 

(Meaning, it doesn't matter whether the end user agrees or not. The license is offered unilaterally: Take it or leave it.)

In US law, an EULA is supposed to be a contract in which the end user accepts the contract by purchasing and using the software. But the GPL is simply a license attached to a work. Whether the end user accepts it or not is not relevant. 

EULAs tend to try to restrict rights beyond the law (see "fair use"). That's why there has to be a contract.

The GPL provides rights beyond fair use, and that's why there is no need for a contract.

Some lawyers without a lot of scruples could waste quite a lot of a client's money, and (more to the point the opponent's money as well, arguing incessantly about whether Apple's reference to an agreement requires the license to be a contract. That would not be a pretty sight in court, and it could certainly be used to brow-beat independent developers.

Again, Apple needs to clean up their legal code here.

---------Quote----------
'(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" ?
---------End-quote---------- 

No. 

One user. Some number of devices. Up to five different Accounts.

DRM by any other name is still DRM. 

But, again, I would tend to guess that this is the product of some junior legal assistant attempting to apply boiler-plate code, and no one with sufficient legal experience has checked that the result is meaningful.

Or, perhaps it is a deliberate attempt to obfuscate the DRM terms.

---------Quote----------
'(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.

---------End-quote---------- 

This is a restriction. There is no getting around that. It may be a reasonable restriction in most cases, but it is still a restriction. 

The only way to (attempt to) enforce such restrictions is DRM. 

Apple has changed the terms, but it looks like they are trying really hard to leave, as it were, a legal backdoor for DRM.

Again, IANAL, and I'm not even a developer here, just an interested third party. If my comments are not useful, ignore them. I'm just hoping to shed what might be some light on the subject.

-- 
Joel Rees