For anybody that runs or dreams of running a marathon, the Boston Marathon is and will remain the holy grail. To think that someone would attack such an event where the ethos of commitment, perseverance, good health, life and diversity are celebrated is truly a tragedy. They didn’t just attack Boston or America, they attacked runners, families, friends, co-workers, and spectators of sport from around the world.

My prayers go out to all the families and friends who were effected by this. Also, I think the city of Boston and all the volunteers deserve a huge thanks for their work in the immediate aftermath.

At the beginning of this year, I decided to leave the law firm I was with to start my own firm.  Over the past few years, I have had the pleasure of representing talented iOS development studios such as MartianCraft, Empirical Development, Zarra Studios, Dragon Forged and most recently Cross Forward Consulting.  Through that experience, I realized there is a need in the mobile software field for an attorney that truly understands the landscape these developers work in and the unique legal issues they encounter.

If you would like to get in contact with me regarding how I can help your company, feel free to send me an email at jdrhyne@gmail.com 

Bloomberg reported that the discussion between the FTC and Justice department over a possible antitrust investigation into Apple was triggered by a complaint from Adobe.

U.S. antitrust enforcers are considering an investigation of Apple Inc. following a complaint from Adobe Systems Inc., according to people familiar with the matter.

Adobe says Apple is stifling competition by barring developers from using Adobe’s products to create applications for iPhones and iPads, said the people who spoke on condition of anonymity because they aren’t authorized to discuss the case.

The complaint triggered discussions between the Justice Department and the Federal Trade Commission over which agency should review the allegations of anticompetitive behavior, the people said. Neither agency has decided whether it would open an investigation, one person said.

Whoa - you don’t say? Never knew capitalism meant, if you can’t beat a competitor, complain to the feds and they’ll stop them.

Yesterday, I called bullocks on the NY Post report that the Federal Trade Commission and Justice Department were looking into initiating an antitrust suit against Apple for their changes to the license agreement to developers of the iPhone and iPad.  Today, both the Wall Street Journal and Reuters echo that report.

Let’s cut to the meat and potatoes of each article (their argument as to how Apple’s actions are anticompetitive).

Reuters: Regulators mull antitrust look at Apple

“What they’re (Apple) doing is clearly anticompetitive … They want one superhighway and they’re the tollkeeper on that superhighway,” said David Balto, a former FTC policy director.

The superhighway being their products - a smartphone and tablet - and controlling the user’s experience on the products.  I still don’t see how that is clearly anticompetitive or anything different than any number of gaming consoles.  It’d be different if they were the only smartphone out there or only tablet but they arent.

Apple said allowing third-party tools would result in “sub-standard” apps. But critics say the company is abusing its position.

“For us and the whole developers community, it really locks us into a single platform,” said Michael Chang, chief executive of mobile ad network Greystripe, of Apple’s rules.

Chang said a basic iPhone app might cost $75,000 to build on Flash, and a few thousand dollars more to convert it to work on Google Inc’s Android mobile platform. But with the new restrictions, a developer must spend another $75,000 to build the app from the ground up for a non-Apple platform.

“For a small or medium-sized company, it becomes a real financial issue, and that’s how it becomes anticompetitive,” he said.

So the argument here is that you have to do more work (i.e. expense), which can become to expensive to have your apps work on multiple different platforms and therefore it is anticompetitive.   Basically, if you’re a small company and it’s too expensive to make an app/implement your idea on a certain platform then it’s anticompetitive.  That’s just ridiculous, should Apple pay small and medium-sized companies electric bills too?

WSJ: Apple Draws Scrutiny from Regulators

The Journal’s article does raise an interesting point about the mobile ad market…

Apple’s new language forbidding apps from transmitting analytical data could prevent ad networks from being able to effectively target ads, potentially giving Apple’s new iAd mobile-advertising service an edge, executives at ad networks say.

I could see how this can be argued as anticompetitive action. 

Some developers said it would be difficult for Apple to enforce the provision about not transmitting iPhone data to the extent that the language implies. Ads inside apps are a key revenue source for developers of free or inexpensive apps.

“At the end of the day, developers need a way to make money,” said Krishna Subramanian, a co-founder of ad-exchange network Mobclix Inc.

She makes a good point.  The irony of the point is that developers will make a lot more money through Apple’s new iAd mobile-ad service than through services like Mobclix.

Final word: still don’t see an antitrust suit coming out of this.

Josh Kosman, of The New York Post reported today that Apple may face an antitrust suit soon over their implementation of the new section 3.3.1. in the iPhone Developer Program License Agreement.  In short, the section that keeps Adobe’s Flash and other cross platforms from being run on the iPhone and iPad.

According to a person familiar with the matter, the Department of Justice and Federal Trade Commission are locked in negotiations over which of the watchdogs will begin an antitrust inquiry into Apple’s new policy of requiring software developers who devise applications for devices such as the iPhone and iPad to use only Apple’s programming tools.

Regulators, this person said, are days away from making a decision about which agency will launch the inquiry. It will focus on whether the policy, which took effect last month, kills competition by forcing programmers to choose between developing apps that can run only on Apple gizmos or come up with apps that are platform neutral, and can be used on a variety of operating systems, such as those from rivals Google, Microsoft and Research In Motion.

Read that last sentence again. I keep reading it trying to figure out how an antitrust suit would have any merit at all.  How does it kill competition?

In forcing computer programmers to choose developing an Apple-exclusive app over one that can be used on Apple and rival devices simultaneously, critics say Apple is hampering competition since the expense involved in creating an app will lead developers with limited budgets to focus on one format, not two.

Ohhh, Apple is making it expensive to create an app.  WHAT?!  

First, the statement that it is expensive to create an app is false.  There’s no overhead other than a computer, the electricity to run/charge the battery and the fee for the SDK.

Second, how many gaming platforms require developers to code specifically for their platform? Microsoft Xbox, Sony Playstation, Nintendo Wii, etc.  It doesn’t kill competition to require that developers code specifically for one format.  It actually would spur on competition.  Hence, companies such as Google developing a platform that does allow use of cross platforms. You don’t have to buy an iPhone or iPad and there is surely a market to develop apps for other smart phones.

There won’t be an antitrust suit, and if there is one filed, it’ll get dismissed.

So a few weeks after the lost iPhone stories comes this media reaction piece in the NY Times. Are you serious?  The journalist, David Carr, does his best (and fails miserably) to make an argument that Apple has shown with iPhone-gate why they should be looked at differently.  Just read the last three sentences from the piece…

But in engaging the long arm of the law on behalf of his corporate interests, Mr. Jobs may lead us to think, um, differently about Apple’s growing cultural dominance.

Really? Any shareholder of Apple (myself included), would want Jobs to use the law to protect his corporate interests.  He’d be a horrible CEO if he let someone steal the company’s product, sell it to a technology media site, and not prosecute them to the fullest extent of the law. Get real David Carr.  If someone stole a journalist’s computer that contained the latest soon to be released blockbuster story of the NY Times, you bet your ink stained quill they would prosecute them.

Sadly, this is not even the worst of the article…

According to a report from Wired, at some point people identifying themselves as representatives of Apple visited the home of the man apparently trying to peddle the phone, asking to search the premises. Home visits seem a little more up the alley of the Church of Scientology, another nongovernmental organization preoccupied by secrecy. 

Apple = Church of Scientology.  Next thing we know, Apple will be spoken in the same breath as the Illuminati and the Free Masons.  Oh, David Carr.

This blog post from Brian X. Chen is pretty cool, especially if you’re curious like I am as to how Wired.com discovered who the man behind the lost iPhone in a bar was.

In response to Wired.com’s scoop identifying the finder of the lost iPhone prototype, many have asked me how we did it. The process of uncovering digital footprints to identify Brian Hogan was indeed challenging and enlightening, so I thought I’d tell the story here. Heck, it might even teach police officers a thing or two so they don’t have to kick down doors.

Lesson Here: you can’t run or hide on the all powerful internets!

Wired.com has identified the finder of the lost iPhone prototype as Brian J. Hogan.  Poor kid. The article basically states that Hogan found the iPhone in a bar, did basically nothing to return it to Apple, and thought the money from Gizmodo was just to have exclusive rights to review it.

Here’s the California statute on theft:

CAL. PEN. CODE § 485 : California Code - Section 485

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Lets look at each element of this crime and compare it to Mr. Hogan’s actions:

(1) finds lost property under circumstances which gave him knowledge of or means of inquiry as to the true owner…

The article states…

Hogan didn’t know what he had until he removed a fake cover from the device and realized it must be a prototype of Apple’s upcoming next-generation iPhone, according to Gizmodo’s account of the find.

check.

(2) and who appropriates such property to his own use, or to the use of another person not entitled thereto…

…several journalists were offered a look at the device. Wired.com received an e-mail March 28 — not from Hogan — offering access to the iPhone, but did not follow up on the exchange after the tipster made a thinly veiled request for money. Gizmodo then paid $5,000 in cash for it.

check.

(3) without first making reasonable and just efforts to find the owner and to restore the property to him…

This is the element where the defense will bank their case.  The huge question: what is considered reasonable and just efforts?

According to the statement from his lawyer, Hogan was in the bar with friends when another patron handed him the phone after finding it on a nearby stool. The patron asked Hogan if the phone belonged to him, and then left the bar. Hogan asked others sitting nearby if the phone belonged to them, and when no one claimed it, he and his friends left the bar with the device.

Is asking around to others sitting nearby reasonable and just efforts?  Surely, when he realized it was an Apple prototype, the answer would be no.  

A friend of Hogan’s then offered to call Apple Care on Hogan’s behalf, according to Hogan’s lawyer. That apparently was the extent of Hogan’s efforts to return the phone.

Not good.  These aren’t reasonable and just efforts because they weren’t even done, yet alone suggested by the defendant.

The prosecution’s case seems to be sealed tight against Mr. Hogan.  You’re guilty buddy.  You know it’s bad when the following are the final couple of lines from your attorney…

His attorney says he recently transferred schools and will resume his college education in the fall. He has been working part time at a church-run community center giving swimming lessons to children and volunteered at a Chinese orphanage last year while he was enrolled in a study-abroad program.

“He also volunteers to assist his aunt and sister with fundraising for their work to provide medical care to orphans in Kenya,” his attorney says. “Brian is the kind of young man that any parent would be proud to have as their son.”

Yikes.

If you want to see all the new types of finger gestures that will be coming to the iPad and iPhone generation, look no farther than Apple’s latest Multitouch Patent. They have now basically patented all major keyboard and edit functions as multitouch finger gestures.  Though it gets me excited to see that soon the iPad may really be used to enter stardate logs, it pains me to see how expansive the scope of the patent is.

Some of the gestures are really basic (i.e. pan, page-up and down, scroll) and are a bit over-reaching in my opinion for a patent.  Seriously, how else would you scroll a webpage on a touch device other than touching with a few fingers and moving them down and up? 

This is by far the best article I have read on the the Gizmodo - iPhone found in a bar saga. 

NYT’s Article - Can Gizmodo Win the iPhone Legal Battle?

I think not.  Pay particular attention to the attorney’s comments at the end of the article comparing Gizmodo to TMZ and obtaining pictures of celebrities.  Pretty spot on.