judicata wrote:With all due respect, you cannot shut down an argument by generally saying that no one understands the issue.
I have not read this story and I am not saying Apple is potentially liable (or not) resulting from any actions in this matter, but you are fundamentally incorrect that a retailer cannot be liable for the items it resells. The retailer could incur liability even if the party (here, the developer) signed an agreement affirming that they were complying with, e.g., copyright and related laws. Example: Bob owns a retails store selling DVDs. Slick drives up in a white van to sell new DVDs to Bob so Bob can resell them. Bob notices that the covers on the DVDs look like they were made from a dot matrix printer, and generally look a little "off." So Bob has Slick sign an agreement that includes an affirmation that the DVDs are legit (e.g. do not violate copyright or other laws).
Is Bob potentially liable for reselling the DVDs? Yes, quite possibly. A court would probably examine whether Bob knew or should have known that the DVDs were not authorized by the copyright holder.
Here, Apple scrutinizes every application they sell. That is, each application is vetted by Apple. By doing so, I think Apple takes an even greater responsibility--i.e., a court is more likely to determine that they "should have known" about a violation. There is a Youtube or Grokster case or something that addresses this.
tl;dr version: Software distributor's agreement doesn't completely shield Apple.
Important note: This is not legal advice, and is not intended to be.
Well, the retail argument is pretty simple to deal with. You're using the example of DVDs, but it could be any type of intellectual property. In all such businesses, there are a limited number of "real" distributors; ie, those people who buy wholesale and sell wholesale, buying from publishers and selling to retailers. I was a bookseller for several years, and bought books for the store I worked in. I would never have bought from a sales rep I didn't know, in part because we had accounts with all the distributors, and in part because it would just not be what you do in retail.
In the case of Apple here, they have terms and conditions that developers must agree to. They certainly have IP clauses, similar to those in the many contracts I've signed for books I've written. The publisher - or reseller, in Apple's case - is not required to prove without a shadow of a doubt that anything they sell is not encumbered by possible claims; that's what the contract is for. I'm not sure whether Apple actually examines source code in all cases - I know that source code is provided to them - but even if they did, what in the source code would tell them that there's a potential problem?
No, I don't think they have any more responsibility than anyone else who, in good faith, takes on a distribution agreement for content they have either bought or contracted. There have been cases in the courts (such as the Sony one I linked to above) showing that resellers are generally exempted from such torts if they have acted in good faith. Like your DVD example, however, if someone did knowingly buy DVDs like that, they would certainly be guilty. But given the way the retail world works, this is unlikely.
