Dayna Goldstein, Georgia Southern University
Apple Inc, the producer of the line of wildly popular iProducts including the iPod, iPhone and iPad is impacting the perception of the public sphere through their mediation of copyright and intellectual property as it relates to their “walled garden” cellular wireless internet devices. Why should the members of CCCC care about the line of iProducts? Well for one, there is the over 200 combined occurrences of these products in the Chronicle of Higher Education in the last year.1 Their prevalence in the Chronicle confirms their intimacy with and saturation of academic life. More importantly, the invisible differences between the wired and wireless cellular internets that they reify, compounded by Apples market dominance and reputation make these devices key arbitration points of digital culture and property. In short, the mediation of the internet on these devices is poised to have a substantive impact on how consumers assume the public sphere operates and what rights might eventually prevail on the growing cellular wireless web and beyond.
In order to understand how Apple became the arbiter of a whole class of software in 2009, it is important to understand how the experience of the device feels to the unaware user and the difference between the wired and cellular wireless internets. When a consumer uses an iProduct they may reach one of two internets at a time. They are each binary devices. They devices may be set on the wired internet. The “wired” internet includes wi-fi which is hooked to a wired router at some point by an individual consumer or business. In practical terms, this internet is the unmediated internet available by desktop, laptop or netbook. It is the internet we have at home and at work. The “wired” internet has been “open” for decades. Any user can download any software they want from the wired internet regardless of device. It would be unfathomable, for example, for any wired internet provider like Comcast, America Online, or Roadrunner to limit what you could and could not use on your computer. However, this is just what the so called “Walled Garden” approache of iProducts do. The Apple hardware and software on iProducts block the wired internet from downloading programs. Instead, the cellular “wireless” network, referring to the 3G&Edge networks controlled by AT&T, paired with the Apple hardware allows exclusively for the download of applications (“Apps”) from the Apple App Store. Wireless networks are federally unregulated and do not have to allow for competition in their model (Wireless Telecommunication Bureau). The company that owns the cellular wireless network has discretion over what data may pass. The devices smooth transition from one internet to the other obscures the difference in rules and laws between the two spheres. Apple boasts on their iPhone internet spec page that “whether you’re connecting via Wi-Fi, 3G, or EDGE iPhone always connects you to the fastest network available” (iPhone safari 3G) The important distinctions between the two types of networks remains obscured to the user in practice.
The App Store
The App Store is a division of the iTunes store. The iTunes store made history when on January 6, 2009; Apple announced that it had reached an agreement with major record labels to sell all music on the iTunes Store free of DRM restrictions (Cohen). The landmark agreement meant that the heretofore problematic Fairplay™ DRM system was removed from the iTunes music store. (Movies and television shows are still encrypted with Fairplay™.) This tremendous concession by the music industry was spurred on by the oncoming App store, which began January 10th, 2009 to coincide with the launch of the iPhone 3G the next day. The music industry was understandably displeased by this circumstance, but eventually conceded that the loss of market share assured by not going with Apple and their loyal constituency of iProduct users would be intolerable.
However, music is not software. Musicians have long belonged to a label to distribute their music. It is only recently that more musical artists are publishing and profiting independently from their music. By contrast, the software industry has had few, if any, successful model of software publishing. The distribution patterns in the software industry have developed as they have because there was nothing between the software developers and the clients. The Apple App store changes that model (Betteridge). This has left Apple as the heir apparent to a whole class of copyright and intellectual property decisions in 2009.
I will review two recent events in this piece. The first event is the story of Google Voice. It illustrates the closed nature of the new wireless internet model and recent nudges toward opening it. The Next Bus Information System/Muni story which follows illustrates the type of intellectual property issues that may occur in this closed, cellular wireless model and the relevance of these decisions for those of us who teach writing and communication in the public sphere.
Google Voice is a digital switching station for landlines and cell lines with a web friendly interface. With Google Voice users “can access [their] voicemail online, read automatic transcriptions of [their] voicemail, create personalized greetings based on who is calling, make cheap international calls, and more”, claims Google Voice about their service on their about page. Google Voice, like many things from Google labs, has deep roots in Silicon Valley. In 2005 a company called Grand Central had started among industry insiders who had huge bandwidth at their disposal. They noted a rising cost in cell phone packages (before the phone itself became the object of decision instead of the plans) and wanted to develop inexpensive web-based call technology. Google bought Grand Central in July of 2007. In March, 2009, after some down time and quiet revamping, the service was much improved and rereleased under the name Google Voice (Malik).
By July, 2009 several apps using or extending the services of Google Voice including GV Dialer, GV Mobile, and Voice Dialer were already in the Apple App store. According to Sean Kovacks, Google had been working with the permission, approval and utmost courtesy of an Apple Senior Marketing Vice President, Phil Schiller (@seankovacks). On July 27th, the above mentioned Google Voice apps were pulled from the Apple App store and another Google Voice app supposedly rejected (Kinkaid). Spurred on by this decision, Google and many other activists quickly brought this matter to the FCC. Merely four days later, July 31st, 2009, the Wireless Telecommunications Bureau made an official inquiry into Apple Policy (Schlichting). The FCC asked six questions. The questions focused on the rejection of Google Voice, AT&T’s part in that decision, and the App Stores general inclusion and exclusions policies. The FCC also made a point of referencing an earlier charge to the closed, wireless model made by Skype (Ad Hoc Public Interest Spectrum Coalition) in the letter to Apple. Industry insiders read this move by the FCC as an attempt to open the App Store model to the same type of competition available on the wired internet. On Augusts 1st, 2009 Apple responded to the FCC largely claiming that they hadn’t made any decisions about Google Voice and that AT&T had no undue influence in the decisions to remove the Google Voice related applications (Apple Answers). To put it tactfully, Apple’s response letter to the FCC reads as a stall tactic and largely takes the position that they have no position.
In January of 2010, Wired Magazine announced that Google Voice released a web version of Goggle Voice that is accessible on any HTML5 platform, which includes the iPhone wired web interface (Buskirk). The article goes on to smartly suggest that because of the bookmarking feature, the cloud version is almost indistinguishable from the version intend to run on the native iPhone OS. Given this approach by Google it is conceivable that we may look back in a few years and see that this is where the tide turned away from the App Store model and to these cloud-based applications. It is equally conceivable, that given Apple’s generally benevolent dictator approach other companies will not feel the need to follow in the HTML5 path that Google Voice blazed. The question ahead is if the Apple App store should act as the moderator of copyright, app distribution, and modification in the future. The next story will discuss one such complicated situation where Apple was the arbiter in the closed, wireless cellular model of the App Store and its impact for rhet/comp scholars.
The San Francisco Municipal Transits Agency (Called “Muni” for short by locals) puts sensors on its buses in order to capture real-time travel data. From this collected data Muni is able to offer real-time predictions of when a bus will arrive at its next stop. The predictions are made publicly available on their website. Several app store developers have included a feature that skims this data in their apps. One such developer, Steven Peterson, included this in his “Routsey” app along with other local routing data options such as BART schedules, train schedules, and trolley data. In July, 2009 Peterson was contacted by the COO of a company calling itself “NextBus Information Systems” (NBIS) claiming that the Roustsey app infringed upon their companies intellectual property rights. Alex Orloff, the COO, contended that NBIS (not affiliated with NextBus sensor products), owned the real time data and demanded a "straight revenue split" or a "data licensing agreement" from Peterson. Peterson, wary at the thought that a public, taxpayer -funded transportation system had sold off their data rights investigated NBIS and Orloff (Batey & Baume). After finding only the most tenuous connection, with NBIS as "the agent for the commercial use of predictive data," Peterson told Orloff that he would not make a licensing agreement (Eskenazi). Orloff then sent a cease and desist letter to Peterson. Peterson disregarded Orloff’s letter and riled San Franciscans in support of their ownership of public transportation data.
Angered and fearful of attacks from impatient Muni users, Orloff wrote a letter to the Apple iPhone development team asking that Routsey be removed from the App store because it violated NBIS’s copyrights and section 3.2d of Apples own developers license (Batey, Muni Arrival), which states to the developer the following:
“to the best of Your knowledge and belief, Your Application and Licensed Application Information do not and will not violate, misappropriate, or infringe any Apple or third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights (e.g. musical composition or performance rights, video rights, photography or image rights, logo rights, third party data rights, etc. for content and materials that may be included in Your Application).”
(Apple iPhone Developers License)
Apple, being zealous in the face of possible DMCA charges promptly removed the application from the App Store. In the mean time, Orloff had become a nuisance with other apps that used the NextBus data including Muni Time and iCommute. He sent various communications demanding a variety of rights not limited to revenue sharing, ad space on the app and full shutdown or rework of the app. Peterson, of the Routsey application, refused to be trampled by Orloff and enlisted a corporate lawyer to talk to Apple about returning Routsey to the App Store. In a “joint discovery effort,” Apple was unable to turn up any legitimate evidence that NBIS held any copyright claim to the Muni data and the Routsey application was returned to the App Store in August of 2009 (Batey, Muni APP). Since then, Orloff’s requests to Apple have been repeatedly rebuked. As a result of this turmoil, Muni has made significant strides in making their data public and routinely asks of collaborating enterprises to make this data more public (Raines).
The implications from the Google Voice story are evident enough. The differences between the wired web and the cellular wireless web forces teachers and students to reconcile a different rhetoric of the public sphere for different locales of the web. The perceived integration of the two webs on the iProducts is something that should prompt discussion about the roles digital technologies can play in both the freeing and obscuring of discourses in the digital realm.
For watchers of intellectual property, the ongoing negotiation of public space between the FCC and closed cellular wireless networks continues to change the digital landscape and we don’t where this change will lead yet. At the moment, Apple is clearly in charge of their “Walled Garden.” Their privatization of the AT&T cellular network and naturalization of the privatization has been enormously successful. However, the FCC is not a toothless bureaucracy because even Apple reacted promptly to complaints about possible DMCA violations. Apple pulls apps first and investigates next. This pull-first-research-later approach reveals a surprisingly cautions policy for such a closed model.
In order to justify the teaching of writing and rhetoric, teachers of composition assume that the public sphere must be amenable to a plurality of voices and opinions to function. In the public sphere, we expect that no individual or group will have the priority to censor out another. The openness of the wired web has been instrumental in identifying previously blocked paths among social networks and the contained cellular wireless model may threaten that balance. Yet, as Ballentine has pointed out we must recognize that the discourses of corporations are complex and not simply bad on their face. No one could deny that the Apple App Store has by chosen to make applications available more often than not and done much to foster innovation.
The future of app publishing and what constraints there are on intellectual property issues, especially, who has the right to arbitrate them in the cellular wireless model will need to be sorted out in the future. This past year merely table set for these questions. It also gives scholars a catalyst to have an important discussion about what public spheres we pay professional attention to and which don’t fall under our purview. Our disciplinary sense of digital property and adaptability continue to be challenged by innovation such as the Apple App store. It will be a delight to see what impacts these technologies will eventually have on the discourses that circulate within the public sphere.
@seankovacks. Web log post. Twitter.com. 27 July 2009. Web. 28 February 2010.
Ad Hoc Public Interest Spectrum Coalition. “Comments of the Ad Hoc Public Interest Spectrum Coalition.” Petition to Confirm a Consumer’s Right to Use Internet Communications Software and Attach Devices to Wireless Networks Proceeding #11361. Federal Communications Commission. 30 April 2007. PDF file. 28 February 2010.
Apple Answers the FCC’s Questions. “Today Apple filed with the FCC the following answers to their questions." Apple.com/Hotnews. Apple inc., 1 August 2009. Web. 28 February 2010.
Ballentine Brian D. "Writing in the Disciplines versus Corporate Workplaces: On the Importance of Conflicting Disciplinary Discourses in the Open Source Movement and the Value of Intellectual Property." Across the Disciplines 6 (2010): n. pag. 19 Jan. 2009 Web 28 February 2010.
Batey, Eve. "Muni Arrival Data App Killer Fears Attacks From Enraged Data/Transit Fiends?” SF Appeal 26 June 2009. Web.
Batey, Eve. "Muni App Makers, Rejoice: MTA, Apple Disputes Private Company's Claims To Own Arrival Data.” SF Appeal 19 August 2009. Web. 28 February 2010.
Batey, Eve and Matt Baume. "Does A Private Company Own Your Muni Arrival Times? SF Appeal 25 June 2009. Web 28 February 2010.
Betteridge, Ian. “Who’s the publisher in the App Store model?” Technovia. 12 June 2009.Blog. 28 February 2010.
Buskirk, Eliot Van. "Google Voice Web App Circumvents Apple’s Blockade.” Epicenter Blog. Wired Magazine., 26 Jan 2010. Web. 4 28 February 2010.
Cohen, Peter. "iTunes Store Goes DRM-free." MacWorld, 6 Jan. 2009. Web. 28 February 2010.
Eskenazi, Joe. “Who Owns Muni's Arrival and Departure Times? That Depends on Whom You Ask.” The Snitch. SFWeekly.com. 25 July 2009. Web. 28 February 2010.
iPhone safari 3G. “Safari.” Apple, Inc. 2010. Web. 28 February 2010.
Kinkaid, Mark. " Apple Is Growing Rotten To The Core: Official Google Voice App Blocked From App Store." Tech Crunch., 27 July 2009. Web. 28 February 2010.
Malik, Om. “GrandCentral Reborn as Google Voice, a Suite of VoIP Services.” GigaOm. 11 March 2009. Blog. 28 February 2010.
Raines, Cohen. “Muni Releases Nextbus GPS Arrival Data Stream for App Developers.” Transit Camp Bay Area. Google Group. 12 November 2009. Listserv. 28 February 2010.
Schlichting, James D. “Federal Communications Commission Communication #DA 09-1736.” Letter to Catherine A. Novelli, Apple Inc. 31 July 2009. PDF file. 28 February 2010.
Wireless Telecommunication Bureau. Federal Communications Commission. n.d. Web. 28 February 2010.
1 Date delimited site search performed on Feburary 24th, 2010 using the key words iPod, iPhone and iPad