Some More Thoughts on the Airfoil Situation

Well, I got Fireballed for the second time. The first time Gruber agreed with me, this time, not so much. I've been having some interesting discussions over e-mail and twitter today with various people, and have read John's comments and given them some thought.

I'm rather a big fan of Daring Fireball, and nine times out of ten I agree with John's assessment of anything technology-related, so I thought the subject merited a revisit. Being wrong on the Internet is certainly not outside the realm of possibility.

So, on reading things over, John definitely makes some valid points. I was wrong, for example, about the images being contained inside the iPhone application. I've got no excuse on that one except to say it was 3:00 in the morning and I was tired, so mea culpa. John's right on that point, and I was wrong.

It's an important point and it puts the situation into slightly more of a gray area than I thought when I was writing last night, but it doesn't change what I intended to be my main point, which John actually acknowledges toward the end of his post when he says

Is Apple within their rights to reject this app for this reason? Sure. The bottom line is that they can reject apps for whatever reasons they want — that’s the rule that matters here. But was Rogue Amoeba foolish for designing their application this way? No. There’s nothing in the SDK agreement that they’ve violated.

I have two responses to this. First, I never stated that Rogue Amoeba were foolish for designing their UI this way. I think it's a great UI. It was never my intention to argue the merits of user interface design at all. The point I meant to make (and, based on feedback I've gotten, obviously did a poor job of making), was that Apple didn't have to allow Rogue Amoeba to use these images and Rogue Amoeba didn't have any reason to think Apple would.

They were after a an exception to a stated rule because it's a good feature and they wanted to provide it to their users. Showing a picture of the connected computer is a good feature. I don't disagree with that at all. But that argument conflates two different things. A great UI made with components you don't have the right to use is still a great UI. It doesn't change the fact that you don't have the right to publish that UI.

I also don't agree with the last point in the quote above. The reason John is mistaken is because he's assuming there needs to be an affirmative proscription. But that's not the way copyright works. Absent a grant of permission (or a legal exception, like fair use) you're not allowed to publish images that you don't own or have permission to use. Nowhere in the SDK agreement or the third party guidelines that they incorporate by reference does Apple explicitly grant permission to use their copyrighted images in the way they were used in Airfoil.

You could argue fair use, but this isn't a clear-cut case of fair use. Some courts might be receptive to it (most probably not). But this isn't a court of law, it's the review process. Apple is judge, jury, and executioner.

And many people claim therein lies the problem. And I don't necessarily dispute that. Most developers would prefer a more open environment. Most would like to be free from the constraints of the review process.

Should Apple reconsider this decision? Yeah, it would be great if they would. If they wanted to, they certainly could find any number of compromises that protect their rights or accommodates whatever concerns led to the rejection in the first place.

Does that mean Rogue Amoeba is blameless for insisting, over the course of three months, that they be allowed to use Apple's copyrighted images in their application? No. Sorry, it does not. Neither good intentions, nor good design grants you rights to somebody else's work.

Posted in: App Store,Daring Fireball,Review Process