June 13th, 2012 | by Kendra Albert | Published in Future of the Internet
Update – 10/17/2012: The parties involved in the lawsuit – Speak for Yourself and SCS/PRC reached a settlement, allowing the app to remain in the Android and iOS app stores. More at the Nieder family blog.
Generativity hasn’t had a poster child — until now.
Meet Maya, a four-year-old child who could lose her ability to speak with the elimination of an app from the iOS App Store.
As detailed in the Nieder family’s original blog post on the subject, Maya uses Speak for Yourself (SfY), an iPad app that serves as an “augmentative and alternative communication” (AAC) device. Before finding SfY, Maya had tried multiple AAC devices, but hadn’t found one that worked for her.
In March, Speak for Yourself, LLC was sued by two companies, Semantic Compaction Systems (SCS) and Prentke Romich Company (PRC). Both produce AAC hardware — but not apps — and filed suit against SfY for alleged infringement upon their patents. Maya’s mother Dana has posted coverage of the lawsuit on her blog, Uncommon Sense. The lawsuit against SfY is ongoing, with a trial scheduled to begin soon.
The patent lawsuit has nothing to do with the app ecosystem on its own terms — Apple is not a party. However, SfY was pulled from the iOS App Store on June 4th by Apple at the request of SCS/PRC. SfY has asked the court to tell SCS to tell Apple (!) to put the software back. The motion for SfY describes the process that it went through with Apple after the initial challenge was lodged. SfY says that it was required to send Apple proof that the app did not infringe, after lawyers for SCS/PRC submitted a copy of the patent complaint.
Apple is not in a position of expertise or authority to evaluate these types of patent claims, though it is no stranger to patent litigation itself. So why did Apple pull the app, especially in a circumstance in which it would be provoking the public’s ire by — you can see the blog entries write themselves — potentially taking away a little girl’s voice?
One answer may be fear of being drawn into the litigation — in particular, being found liable for secondary patent infringement. A recent Supreme Court case, Global-Tech Appliances, inc. v. SEB S.A., held that once a distributor has actual knowledge of a patent — in this case, one covering a deep fryer that the distributor was selling — it can be liable for “induced infringement.” After SCS/PRC complained to Apple, Apple might be said to have actual knowledge of the patent at issue. Thus, if the app were found to infringe and Apple did not remove it from its store, Apple could be liable for inducement, a problem that a prior generation of technology platform makers never had to contend with. No one thought Microsoft responsible for every piece of software written for Windows — even software that was the subject of intense legal fighting, such as Napster and Grokster.
Apple’s action, which we’re inferring was based on sound or at least typically risk-averse legal strategy, puts it a very strange position. On the one hand, it is defending app developers from patent trolls like Lodsys, and on the other, it has to pull apps before a court can even rule on whether they infringe on a patent. Perhaps patents need a DMCA-style notice and takedown regime, where app developers would have the right to contest the patent claims and have their application stay in the store. At the very least, there should be clarification of the boundaries of secondary patent infringement in these circumstances — apps aren’t deep fryers, and to treat them as such risks changing the status quo, not maintaining it. Today it’s not possible to dispossess all deep fryer owners of their cookware, even if it were found infringing.
It’s a sad reality of walled gardens like the iOS app store that developers are entirely dependent on one company for distribution, and have little recourse in cases like this one, even where the walled garden’s owner may not even be happy with the outcome. Apple has the power to determine what apps are in the iOS app store, and by tying itself to one distribution platform, SfY has ensured that it can’t function without permission from Apple. Yet it can’t reach typical iPhone and iPad owners without using the platform.
This is hardly the first case of a single platform distribution model suddenly whipsawing a developer — and its customers. For example, in 2010, Facebook banned applications from a company called LOLapps, including its game Critter Island. Critter Island’s active monthly users went from 13 million to zero over the course of a day.
SfY isn’t the only party affected by Apple’s legal caution. As her family points out, although Maya still has the application on her iPad, and can still use it for the time being, any update to the iOS environment (like iOS 6) could break SfY, rendering Maya incapable of speaking again. Without access to the App Store, the SfY development team cannot push out updates or fix bugs. The SfY application is an orphan, unable to phone home. Various commenters have mentioned that Maya’s parents can disconnect the iPad from the Internet, keeping it in airplane mode forever to prevent the OS from being updated, or jailbreak the iPad and hope the application keeps running. These are self-evidently awful solutions — so much so as to count more as kludges.
Moreover, nothing prevents SCS/PRC from asking Apple to remove all copies of the SfY app from iOS devices, just like Amazon did with Kindle copies of 1984. Maya’s copy might be safe only if her parents have taken one of the actions mentioned above. But the SfY application isn’t just used by Maya, and there may be other people with special needs who currently rely on it and have no idea about the patent infringement case.
Apple has never publicly admitted to retroactively yanking applications from individual devices, but that may not matter. Apple has the ability to do so, and in the past, courts in cases such as TiVo vs. Echostar (discussed at length in Chapter 5 of Future of the Internet) have required companies to modify their existing, tethered products to remove infringing functionality. Echostar did modify the code of its existing devices in an attempt to avoid patent infringement, but not sufficiently in the eyes of the court. In the end, Echostar was ordered to license TiVo’s patent — a possible outcome here. An injunction from the court, if SfY is found infringing, could force Apple to pull the application from existing devices. Maya and other SfY users could become victims of perfect enforcement.
Speak for Yourself is a vivid example of how the move from product to service in software — “tethering” — and the resulting prospects for perfect enforcement can combine to create a circumstance where Apple may be legally required or strongly incented to pull an incredibly useful application from its devices, thus removing it from use by the people who need it in a way that a prior generation of devices could not possibly have been disabled.
The remedy for patent infringement should lie in damages against the manufacturer or a court order reflecting a considered judicial act, rather than a simple risk aversion by a private party with no dog in the fight. Now that Apple has shown that a nasty note on legal letterhead is enough to get an app pulled, app developers simply may not even try to fight a long patent war. And here, the deprivation of the app is a deprivation of a child’s speech. We’ve gone out of the frying pan and into the deep fryer.
–by Kendra Albert, Nick Fazzio, and Jonathan Zittrain