In another installment of the continuing battle of form over substance regarding GPL and the Apple iPhone Apps store terms of use, Apple pulled the VLC media player from its store. The App has been in the store since September, 2010. Rémi Denis-Courmont, “one of the many VLC code contributors“, sent a takedown notice to Apple claiming the use of his code in the VLC app, a media player, violated the GPL. VideoLAN, a non-profit organization was the developer of VLC. (However, the app was submitted to the app store under the account of Applidium, because of administrative issues with VideoLAN’s account.) In an Ars Technica interview, Applidium co-founder Romain Goyet said “People are enjoying a nice free and open source video player on the AppStore, and some people are trying to ruin it in the name of ‘freedom.’”
One point of contention is whether GPLv2 is a “valid end user license agreement.” If so, then the App Store license does not apply. Apple’s App store terms say, “Your license to each App Store Product that you obtain through the App Store Service is subject to your prior acceptance of this Licensed Application End User License Agreement, and you agree that the terms of this Licensed Application End User License Agreement will apply to each App Store Product that you license through the App Store Service, unless that App Store Product is covered by a valid end user license agreement between you and the Licensor of that App Store Product, in which case the terms of that separate end user license agreement will govern.” Apparently some claim that the GPL is not an end user license — but that is elevating rhetoric over the plain meaning of language. Apple’s language obviously is intended to provide for licensing terms where the developer has not offered any. This default licensing mechanism protects both Apple and the developer from a lack of licensing terms, which might subject either of them to unexpected warranty claims. In fact, the GPL does grant the right to use, at least elliptically. It also grants rights to distribute and modify, but that does not mean it does not grant rights to use. Most lawyers interpreting Apple’s terms would say the GPL is a valid end user license, but the term “end user license” is anathema to free software philosophy.
The issue of a “valid end user license” is probably a red herring, though. The more interesting question is whether the requirement for a user to agree to Apple store terms and conditions, including its various restrictions (number of devices etc.), violates the “no further restrictions” clause of the GPL. (Section 6 of GPLv2 says, “You may not impose any further restrictions on the recipients’ exercise of the rights granted herein.”) However, this confounds the exercise of the GPL license with the terms for the service provided by Apple. If I download a free GPL app, request the source code and receive it, clearly my exercise of GPL rights is not restricted by the app store terms. I could, for instance, use the code to build a new app — for Apple platform or otherwise. It seems excessively narrow to interpret the Apple terms to supersede GPL in such a case.
In the real world of technology licensing, there are conflicts between upstream and downstream terms all the time. They need to be resolved sensibly, not as an ideological war. In an ideological war, the general public loses while the combatants lob missiles over their heads. Apple clearly will not change its way of conducting business to satisfy the requirements — actual or perceived — of GPL. Apple has made a decision to implement its store in a particular fashion, and while some may argue with that fashion, Apple has the right to provide the service as it chooses. Those who disagree with the closed system approach can help develop competing platforms. In the meantime, free apps under GPL continue to be removed from the app store, a result that probably benefits no one — except of course the purveyors of competing, non-free apps.
