4 ms·

How can the iPhone SDK be NDA'd?

23 points by blasdel 17y ago

eli 17y ago
You're asking how it can be confidential? It's confidential because you signed a contract agreeing that it's confidential. Sure, if you got everyone who bought your book to sign a contract agreeing not to write bad reviews, then you could potentially sue them if they violate that contract. Indeed I'm aware of several hardware and software products that at least claim that by using them you agree not to post bad reviews or benchmarks.
- baddox 17y ago
  You can't change reality by signing a contract. If you signed a contract saying it was directions to build a time machine, would that make it so?
  - houseabsolute 17y ago
    None of the contracts mentioned in the post you're replying to purport to change reality. They just restrict what the signer is allowed to do.
    - pyre 17y ago
      I think that the point that was attempting to come across in that post was that just because something is in a contract doesn't mean that it's enforceable. I can't sign a contract that says that if I don't crack a joke that makes you smile, you get to kill me. I could sign that contract, and you could kill me, but you'll still go to jail for it.
      - sparky 17y ago
        I think seldo's comment above captures it. What you said is true, but you also can't force Apple to give you a development environment for their device and let you sell apps in their private store. They have offered to do so anyway, so long as you keep it to yourself. I would bet that many SDKs for closed devices (e.g. game consoles) are under similar restrictions. Can anyone comment on that?
        pyre 17y ago
        To be the devil's advocate, most game console SDKs are sold at a much higher price therefore setting the barrier to entry much higher. Apple iPhone SDK = $99 Sony PS3 SDK = $10,250 [1] One could argue that $99 is affordable by most anyone. $10K? No so much. [1] http://www.betanews.com/article/Sony-slashes-price-of-PS3-SDK-to-fix-game-problem/1195491681 http://www.betanews.com/article/Sony-slashes-price-of-PS3-SD...
      - anamax 17y ago
        > I think that the point that was attempting to come across in that post was that just because something is in a contract doesn't mean that it's enforceable. That may be the point, but it isn't relevant to this situation because NDAs on SDKs are legally enforceable. You don't have a legal right to an SDK.
      - houseabsolute 17y ago
        There is the idea of an unconscionable contract but I think Apple's legal team has at least a good faith belief that their NDA does not fall under that umbrella.
  - gojomo 17y ago
    You can promise to keep a secret. People do it all the time, sometimes informally, sometimes in writing. That's all 'confidential' means.
- seldo 17y ago
  Well, unlike the book, the Developer Program is an ongoing service. They're not saying it's illegal, they're saying if you break the NDA you will be barred from using their services in the future. Which, if you're a developer, is quite a threat.
- tlrobinson 17y ago
  An example of one such vendor was posted here a few days ago: http://www.bannedbygaussian.org/ http://www.bannedbygaussian.org/ More at: http://www.eff.org/wp/dangerous-terms-users-guide-eulas http://www.eff.org/wp/dangerous-terms-users-guide-eulas
timdorr 17y ago
It's not the SDK that you pay for, it's the beta SDK that you pay for (along with cert signing and app distribution). The 3.2 SDK is currently only available for paid developers. Everyone else gets 3.1 and the docs are available without a login. I understand it's a moot point when people are violating the NDA left and right, but it's supposed to be that the information in the 3.2 SDK about the iPad is all confidential info. It's confidential in theory, it's just nearly unenforceable in practice. It reeks of evil because it's only enforceable via fear.
- smokey_the_bear 17y ago
  It's funny that they go to the trouble of making the SDK available to paid developers early, yet it's still unclear to us if the iPad will actually have a physical GPS chip or not. The tech specs are vague.
rtrunck 17y ago
It is a simple matter of contract law - it is an exchanged for bargain. In consideration of you getting access to the SDK, etc., you are agreeing to a non disclosure clause and paying $99, among other things. If you don't want to enter into that agreement, don't. Shrink wrap licenses and related items are generally enforceable.
thewileyone 17y ago
It's Apple. They sue people for spreading rumours, what do you expect?
- jws 17y ago
  It's Apple. They sue people for inducing trusted people to break their NDAs and publish trade secrets.
  - thewileyone 17y ago
    Is it really a trade secret when the SDK can be bought for $99? It's stupid that's what it is.
    - jws 17y ago
      The "rumors" reference is to the ThinkSecret lawsuit, not to this SDK. And I'll think you'll find the SDK can not be purchased. There is a way to obtain a license that grants you some rights to use it.
mcherm 17y ago
Actually, I think there is an interesting question here. Please bear with me, because I am not a lawyer and my knowledge of intellectual property law is limited, but here is what I think applies. (1) There are various sorts of intellectual property, with different standards and rules. For instance, there is patent law: if Apple had a patent on the API of the iPhone then they could tell anyone not to use it except on Apple's terms. They don't have a patent. There are two other sorts of law which might apply: copyright law and trade secret law. (2) Copyright law would allow Apple to go after anyone caught making copies of the API docs. But it would NOT allow Apple to prosecute anyone for mailing a printout to all their friends, nor could they prosecute anyone for knowing the API or for writing code that calls it. On the other hand, Apple clearly has a copyright on the API docs. (3) Trade secret law is another possible area that might apply. The archetypal example of trade secret law is the "secret formula" for Coke. To be a trade secret, Apple's business must depend, to some extent, on keeping it a secret (I think we can safely assume this applies). Also, Apple must make an effort to keep it secret -- that's what the NDAs are all about. The point that the article raises is that perhaps Apple's willingness to share the "secret" to anyone with $100 bucks to burn weakens this to the point where they can no longer claim the full advantages of Trade Secret protection. I believe that one of the things Trade Secret protection provides is the ability to constrain 3rd parties. Contract law allows Apple to sue the guy who leaks the API doc -- but perhaps he's a bum with $100 to his name: there's only so much they can do. Trade secret law (I believe) is what would allow Apple to tell OTHER people who got a copy from this bum to relinquish their copy and stop using the information. If Apple's low price and wide number of customers for the iPhone API have weakened this sort of protection, that is interesting.

23 points by blasdel 17y ago

eli 17y ago

You're asking how it can be confidential? It's confidential because you signed a contract agreeing that it's confidential. Sure, if you got everyone who bought your book to sign a contract agreeing not to write bad reviews, then you could potentially sue them if they violate that contract. Indeed I'm aware of several hardware and software products that at least claim that by using them you agree not to post bad reviews or benchmarks.

baddox 17y ago
You can't change reality by signing a contract. If you signed a contract saying it was directions to build a time machine, would that make it so?
- houseabsolute 17y ago
  None of the contracts mentioned in the post you're replying to purport to change reality. They just restrict what the signer is allowed to do.
  - pyre 17y ago
    I think that the point that was attempting to come across in that post was that just because something is in a contract doesn't mean that it's enforceable. I can't sign a contract that says that if I don't crack a joke that makes you smile, you get to kill me. I could sign that contract, and you could kill me, but you'll still go to jail for it.
    - sparky 17y ago
      I think seldo's comment above captures it. What you said is true, but you also can't force Apple to give you a development environment for their device and let you sell apps in their private store. They have offered to do so anyway, so long as you keep it to yourself. I would bet that many SDKs for closed devices (e.g. game consoles) are under similar restrictions. Can anyone comment on that?
      - pyre 17y ago
        To be the devil's advocate, most game console SDKs are sold at a much higher price therefore setting the barrier to entry much higher. Apple iPhone SDK = $99 Sony PS3 SDK = $10,250 [1] One could argue that $99 is affordable by most anyone. $10K? No so much. [1] http://www.betanews.com/article/Sony-slashes-price-of-PS3-SDK-to-fix-game-problem/1195491681 http://www.betanews.com/article/Sony-slashes-price-of-PS3-SD...
    - anamax 17y ago
      > I think that the point that was attempting to come across in that post was that just because something is in a contract doesn't mean that it's enforceable. That may be the point, but it isn't relevant to this situation because NDAs on SDKs are legally enforceable. You don't have a legal right to an SDK.
    - houseabsolute 17y ago
      There is the idea of an unconscionable contract but I think Apple's legal team has at least a good faith belief that their NDA does not fall under that umbrella.
- gojomo 17y ago
  You can promise to keep a secret. People do it all the time, sometimes informally, sometimes in writing. That's all 'confidential' means.
seldo 17y ago
Well, unlike the book, the Developer Program is an ongoing service. They're not saying it's illegal, they're saying if you break the NDA you will be barred from using their services in the future. Which, if you're a developer, is quite a threat.
tlrobinson 17y ago
An example of one such vendor was posted here a few days ago: http://www.bannedbygaussian.org/ http://www.bannedbygaussian.org/ More at: http://www.eff.org/wp/dangerous-terms-users-guide-eulas http://www.eff.org/wp/dangerous-terms-users-guide-eulas

timdorr 17y ago

It's not the SDK that you pay for, it's the beta SDK that you pay for (along with cert signing and app distribution). The 3.2 SDK is currently only available for paid developers. Everyone else gets 3.1 and the docs are available without a login. I understand it's a moot point when people are violating the NDA left and right, but it's supposed to be that the information in the 3.2 SDK about the iPad is all confidential info. It's confidential in theory, it's just nearly unenforceable in practice. It reeks of evil because it's only enforceable via fear.

smokey_the_bear 17y ago
It's funny that they go to the trouble of making the SDK available to paid developers early, yet it's still unclear to us if the iPad will actually have a physical GPS chip or not. The tech specs are vague.

rtrunck 17y ago

It is a simple matter of contract law - it is an exchanged for bargain. In consideration of you getting access to the SDK, etc., you are agreeing to a non disclosure clause and paying $99, among other things. If you don't want to enter into that agreement, don't. Shrink wrap licenses and related items are generally enforceable.

thewileyone 17y ago

It's Apple. They sue people for spreading rumours, what do you expect?

jws 17y ago
It's Apple. They sue people for inducing trusted people to break their NDAs and publish trade secrets.
- thewileyone 17y ago
  Is it really a trade secret when the SDK can be bought for $99? It's stupid that's what it is.
  - jws 17y ago
    The "rumors" reference is to the ThinkSecret lawsuit, not to this SDK. And I'll think you'll find the SDK can not be purchased. There is a way to obtain a license that grants you some rights to use it.

mcherm 17y ago

Actually, I think there is an interesting question here. Please bear with me, because I am not a lawyer and my knowledge of intellectual property law is limited, but here is what I think applies. (1) There are various sorts of intellectual property, with different standards and rules. For instance, there is patent law: if Apple had a patent on the API of the iPhone then they could tell anyone not to use it except on Apple's terms. They don't have a patent. There are two other sorts of law which might apply: copyright law and trade secret law. (2) Copyright law would allow Apple to go after anyone caught making copies of the API docs. But it would NOT allow Apple to prosecute anyone for mailing a printout to all their friends, nor could they prosecute anyone for knowing the API or for writing code that calls it. On the other hand, Apple clearly has a copyright on the API docs. (3) Trade secret law is another possible area that might apply. The archetypal example of trade secret law is the "secret formula" for Coke. To be a trade secret, Apple's business must depend, to some extent, on keeping it a secret (I think we can safely assume this applies). Also, Apple must make an effort to keep it secret -- that's what the NDAs are all about. The point that the article raises is that perhaps Apple's willingness to share the "secret" to anyone with $100 bucks to burn weakens this to the point where they can no longer claim the full advantages of Trade Secret protection. I believe that one of the things Trade Secret protection provides is the ability to constrain 3rd parties. Contract law allows Apple to sue the guy who leaks the API doc -- but perhaps he's a bum with $100 to his name: there's only so much they can do. Trade secret law (I believe) is what would allow Apple to tell OTHER people who got a copy from this bum to relinquish their copy and stop using the information. If Apple's low price and wide number of customers for the iPhone API have weakened this sort of protection, that is interesting.