Google’s Android Marketplace, now home to more than 100,000 mobile apps, has fast become the top competitor to Apple’s App Store. But unlike Apple’s store, Android apps aren’t subject to extensive review before they’re made available in the store. Google’s more open system for uploading apps has led to a market for apps that’s robust and fast-growing– but it also means that legal battles over the apps play out after they are available for download rather than while the applications are still pending. Below, some of the apps that big companies like LinkedIn, Nintendo, Motorola (NYSE: MMI) and Starbucks (NSDQ: SBUX) are trying to get kicked out of the Marketplace, and why.
ChillingEffects.org has published a new set of data–206 “takedown” notices sent by various companies and a few individuals to Google (NSDQ: GOOG), insisting that apps in the Android Marketplace violated either copyright or trademark law. Some of the companies got their wish, while others have come up empty-handed. Taking a closer look at this data-the first of its kind-offers a sense of what some of the conflict points are in the world of apps.
First, where this data came from: ChillingEffects.org, which is run by several prominent law schools and the Electronic Frontier Foundation, has been collecting various types of takedown notices and publishing them for a decade now. There’s a lot of debate in the blogosphere about whether copyright and trademark takedown notices are sent too often or used abusively, and ChillingEffects gathers data to help academics studying that question.
Most big internet companies receive takedown notices on a regular basis and have to set up a system for responding to them. But a few companies and organizations, including Google, have a standing policy of sharing all such notices with ChillingEffects.org so they can be studied by others. (Twitter, whose general counsel is a former Googler, is another such company.) While Google has been sending takedown requests in gets regarding services like Google Search and Blogger to ChillingEffects for some time, it just started sending takedowns for the Android Marketplace, and now ChillingEffects has published the data set-a kind of “registry of anger” towards the world’s first open-door app store.
One thing that comes through clearly here is that Google is seriously evaluating these notices. Some of the apps have been taken down, but many others haven’t. The company isn’t automatically assuming that the copyright or trademark owner is in the right. That’s not surprising, considering Google has sometimes had to defend itself against intellectual property claims in court.
Some general observations: As ChillingEffects director Wendy Selzer notes in her recent blog post analyzing the data, the complaints were divided about evenly between copyright and trademark. Technically, the biggest complainant was Facebook, which submitted 31 of the 206 complaints, and next was Nintendo, with 20 complaints. Google itself was actually third, with eight complaints alleging its own trademarks were being misused by some apps in the Android Marketplace. (So, yes, that would be one division of Google complaining about how Google’s trademark is used in a second division of Google-and then Google reporting on Google’s takedown request to ChillingEffects.org.) If we count the number of apps targeted, the Recording Industry Association of America (RIAA) is up there too, since they asked for takedowns on dozens of apps related to ringtones but stuffed it all into just three requests.
So what was complained about? And what was actually taken out of the Android Marketplace? Here’s an unscientific sampling:
— Starbucks: The company sent six complaints about “coffee card manager” apps that help Starbucks card owners check their balance or reload their cards, noting that the programs use Starbucks logos and designs without permission. Some of the apps were taken down, while others changed their names to generic names and designs. The app formerly known as a “Starbucks Card Widget,” for example, has now renamed itself to My Coffee Card.
— Motorola: Motorola asked that four apps be taken down. Three of them are history, but a fourth-Motorola Droid Updater, a free app by Drippler, is actually using Motorola’s name because it’s a company-specific news app, offering to advise users on the “latest rumors, news and updates” on Motorola Droid phones. Using a company name as part of news reporting isn’t a trademark violation, obviously, and Google apparently declined to remove this one.
— BNP Paribas, TD Ameritrade and JP Morgan Chase: Several banks asked for apps to be taken down, with mixed results. BNP Paribas and TD Ameritrade both appear to have removed mobile banking apps using their names. But JP Morgan Chase’s attempt to remove Jeff Peiffer’s $5 Android Banking app as a trademark violation failed-Peiffer had simply listed the company’s name as one of several online banking services that his program supports.
— RIAA: The Recording Industry Association of America asked for dozens of apps to be taken down. The apps all appear to be related to ringtones, but the recording industry trade group has had mixed success in winning takedowns. Part of the problem is that RIAA seems to have lumped together apps that are providing illegal material with apps like MP3 search engines that aren’t necessarily illegal.
— Nintendo: The gaming company tried, but failed, to take down eight apps that are using the likeness of Mario Bros. characters, even though on the face of it, unlicensed use of Mario looks like a pretty clear copyright violation. The problem may be that Nintendo’s takedown notices were unclear and failed to list specific URLs. A search for apps that Nintendo wanted taken down-like Mario Sounds by Bayland Blue and Mario Soundboard by Flojobo-shows they’re still available. An unauthorized Pokemon Game Ultimate Edition is still up, as well.
Update: The apps linked above were taken down shortly after this story published.
— Atari: Atari wanted to take down two “clones” of the classic 80s arcade game Missile Command, called Missile Shield and Ballistic Defense. But Google hasn’t delivered on the demands of Atari lawyers, at least not yet. I wouldn’t be surprised if the app makers contested these takedowns, because the images are different and as much as Atari might like to “own” the idea of crazy rockets tumbling down a screen towards six vulnerable human cities… I’m not sure that should be copyrightable. (Although I’m sure many lawyers would disagree.) In any case, the games are still up, as is a clone of Atari’s Asteroids game.
— Hachette Group: The publisher filed one complaint that successfully led to the takedown of more than a dozen “apps” that appear to have simply been programs that displayed pirated e-books, including books by Nicholas Sparks, financial guru Robert Kiyosaki, and the Twilight series by Stephenie Meyer. These apps are all down (but cached versions are still viewable.)
— LinkedIn and U.S. Bank: A few companies tried to take down apps that simply made mobile browsing easier but Google didn’t fall for that. LinkedIn, for example, tried to have this LinkedIn Mobile app removed, even though the description says it isn’t affiliated with LinkedIn. U.S. Bank asked Google to take down developer Kevin Williams’ app, which he described as simply a portal to the “quite hard to find” mobile version of the U.S. Bank website. Both apps are still up.