Sometime over the summer -- no one is sure exactly when -- Apple quietly launched a portal where developers and other entities can alert the company about possible app copyright infringements. “Once you have identified the app and described the alleged infringement on the following pages, we will respond via email with a reference number and will put you in direct contact with the provider of the disputed app,” says the portal’s main page.
How does the dispute-resolution process work? It’s tough to say, partly because it’s new and thus largely untested -- and partly because Apple didn’t respond to interview requests. But some developers and attorneys say it could be useful.
“The portal definitely makes it more efficient to communicate with the right point of contact at Apple,” says Derek Ting, Enflick co-founder. “Before, it was unclear what the process was to handle these issues. However, since I never had to deal with infringement issues through Apple, I can't comment on how much more effective the new portal is. The best way to settle any dispute is to contact the infringing developer directly before going through Apple and lawyers. Often issues can be settled directly without involvement of Apple or any other party.”
Apple’s new process doesn’t change one thing: the need for developers to periodically check what else is available in their target markets. That’s also an opportunity to see if rival apps have added features that give them a competitive advantage.
“In most circumstances, Apple’s portal should prove to be a relatively quick and cost-effective way to have infringing content removed from the App Store,” says Robert McHale, an attorney and author of “A Practical Legal Guide to iPhone Application Development.”
“As before, the onus largely remains on copyright owners to police the App Store for potentially infringing apps,” McHale continues. "While presumably not a common occurrence, in cases of clear IP violations triggering potentially high monetary damages or brand erosion, IP-right owners should consider seeking immediate injunctive relief to remove any IP-violative apps.”
Digital Copyright Issues on the Rise?
How common is IP infringement in the mobile app world? There doesn’t appear to be any analyst research quantifying it, but it’s safe to say that, at least in iOS, it’s reached the point that Apple felt it was worth creating a framework to deal with it.
Governments are also starting to crack down on mobile application copyright issues. In August, the U.S. Department of Justice worked with its Dutch and French counterparts to seize three domains -- applanet.net, appbucket.net and snappzmarket.com -- on charges of distributing pirated Android apps.
“This is the first time website domains involving cell phone app marketplaces have been seized,” the DoJ said in a press release. “The seizures are the result of a comprehensive enforcement action taken to prevent the infringement of copyrighted mobile device apps.” The DoJ seizure shows that when app piracy does occur, it’s not unique to the iOS world.
Some developers say that so far, they haven’t seen much piracy or other forms of IP theft. “Infringement has not been a big problem for us, and I don't think it is generally a big problem in the mobile app ecosystem,” Ting says. “[But] infringement is something that will happen regardless of which platform you're on.”
How to Protect Your App Copyrights -- and Yourself
The good news is that developers have several options for minimizing the chances that their app IP will get ripped off.
“The best ways for developers to protect themselves from infringement is to keep improving their app so that it becomes increasingly more difficult for a copycat to replicate your product,” Ting says. “Patents will provide legal protection of IP, but they take a long time to file and are expensive to enforce. It probably won't make sense for most developers out there.”
It also helps to understand how the copyright process works. For example, some developers mistakenly believe that code signing is a form of copyrighting.
“Code signing and copyright registration serve very different purposes,” McHale says. “The former serves to confirm the author of the software and to guarantee that the code has not been altered/corrupted. It does not confirm that the software itself is original or duplicative of another’s copyrighted material.
“Although copyright protection subsists immediately upon writing the code, developers should also consider federally registering their copyrights to achieve greater protections, including a presumption of validity of the copyright and recovery of attorney’s fees and statutory damages in the case of infringement.”
It’s also a good idea to ensure that your app isn’t the one doing the infringing. “Developers or the companies that they are hired by should ensure that all code is the original product of the developer,” McHale says. “If not, express licenses should be obtained, and the terms of the license should be strictly honored. Developers should also obtain all necessary licenses for any images or sound created by others that they incorporate into their app.