EFF Spells Out the Problem With Lodsys/Apple Mess

The Electronic Frontier Foundation posted some thoughtful commentary on the ongoing issue between patent holder Lodsys and Apple iOS (s aapl) developers regarding in-app purchases Friday. Apple itself has yet to respond to the threats made by Lodsys requiring individual app developers to pay licensing fees for the use of Apple’s in-app purchasing system. Both Lodsys, which the EFF blatantly labels a “patent troll,” and Apple are singled out for criticism in the blog post.

To recap, patent-holding company Lodsys, which makes all of its revenue from seeking licenses for the patents it holds (none of which it uses itself), has been sending out notices to App Store developers giving them 21 days to license Lodsys tech for the use of in-app purchases. Developers have been forwarding the threats to Apple’s legal department, which was reported earlier this week to be working on a response. Apple hasn’t responded, as of yet.

The EFF points out that suing app developers directly is “a trend we’re seeing more and more often,” but what’s especially worrying about this case is that the suit is based on functionality provided to developers directly by Apple, and that Apple requires its use for in-app transactions. The EFF points out that a weakness of the Apple Developer Agreement is that it “does not require that Apple indemnify developers from suits based on technology that Apple provides,” so there’s no real legal impetus for Apple to act.

But there is another impetus, and it’s considerable. The EFF describes it thusly:

[A]bsent protection from Apple, developers hoping to avoid a legal dispute must investigate each of the technologies that Apple provides to make sure none of them is patent-infringing. For many small developers, this requirement, combined with a 30 percent fee to Apple, is an unacceptable cost. Even careful developers who hire lawyers to do full-scale patent searches on potential apps surely would not expect to investigate the technology that Apple provides.

If developers end up feeling responsible for protecting themselves against suits related to the use of tech provided by Apple, suddenly iOS development becomes a very complicated, very expensive affair. One that not many small studios or independent developers are likely to find too attractive.

The EFF isn’t absolving Lodsys of blame; rather, it repeatedly refers to the “patent troll’s” behavior as unseemly and unacceptable. But equally unacceptable, in the EFF’s mind, is Apple’s inaction to date, which leaves developers vulnerable and does nothing to deter the bad behavior of those who seek to profit from patent trolling activities.

Hopefully, we’ll see Apple respond to this situation as soon as it gets a firm grasp on the situation and the courses of action it’s best positioned to take. In the meantime, in addition to the EFF’s short and sober appraisal, developers and users interested in the situation would do well to check out the much more detailed FOSS Patents FAQ on the subject.