Yesterday, the Gadgetwise blog in the New York Times included a short article by Eric Taub entitled “Apple’s App Refund Policy: No.” The title of the article pretty much tells you the contents. If you buy an iPhone app and it turns out that you don’t like it for any reason at all, you cannot return it. Because most apps are free or cost only a few dollars, this is not a big deal. However, there have always been a few expensive apps on the App Store, such as the ones that I previously mentioned here. More recently, several companies are offering GPS apps with turn-by-turn directions for up to $100 or more, plus there is the Black’s Law Dictionary app which costs $49.99. So there are now lots of apps that attorneys and others might think about buying for which the combination of the price tag and no return policy are a serious deterrent.
Thinking about the “no refund” policy of the App Store got my wondering about other App Store rules. I’m sure that all of us always read the fine print before clicking “I agree,” so this may be nothing more than a refresher for you (ahem), but I thought it would be interesting to take a close look at the U.S. version of the App Store Terms and Conditions to see what else is in there. By the way, this agreement is updated from time to time (as made explicit in Section 30), so I am only talking about the version in effect as of today, October 13, 2009. (It says that it was last updated on September 9, 2009.) Here are some items of interest:
1. Age requirements. You have to be 13 years or older to use the App Store. Moreover, if you are under 18 years old, you are supposed to read the Terms and Conditions with your parents or legal guardians before agreeing to them. I can only imagine countless teenagers and parents across the nation reading the Terms and Conditions. (Section 2.)
2. No use outside of the U.S. You are only allowed to use the App Store while you are in the U.S. or its territories and possessions. “You agree not to use or attempt to use the Service from outside of the available territory.” (Section 3.) I am fairly certain that I purchased DataViz’s Documents to Go app when I was in Russia a few months ago using the Wi-Fi at my hotel. Oops.
3. It’s only a license. You do not actually own the apps you purchase. Apps “are licensed, not sold, to you.” (Section 4.)
4. Transfer to other devices? I know that if I purchase (um, I mean “license”) an app on my iPhone and then sync my iPhone to my Mac, when my wife syncs her iPhone to the same Mac, the app gets downloaded to her iPhone. I’ve always assumed that was allowed because I know that when you purchase a song from iTunes you can transfer it to other iPods that are synced with the same Mac. This assumption finds some support in Section 9 of the Terms and Conditions, which contains “Usage Rules” that state (1) “You shall be able to store Products from up to five different Accounts
on certain devices, including an iPod touch or iPhone, at a time” and (2) “You shall be able to store Products on five iTunes-authorized devices at any time.” (Section 9(b)(ii) and (iii).) That makes me think that it is okay to have an app that I buy on both my iPhone and my wife’s iPhone.
On the other hand, I am not quite sure that I understand this paragraph and how it affects transferring apps between different devices:
You shall be able to manually sync Products from at least one
iTunes-authorized device to devices that have manual sync mode,
provided that the Product is associated with an Account on the primary
iTunes-authorized device, where the primary iTunes-authorized device is
the one that was first synced with the device, or the one that you
subsequently designate as primary using iTunes.
(Section 9(b)(vi).) Additionally, at the end of
the Terms and Conditions, there is a separate part called “Licensed
Application End User License Agreement” which I’ll shorten to LAEULA
It provides that the license is granted to use an app “on any iPhone or
iPod touch that you own or control” and the license “does not allow you
to use the Licensed Application on any iPod touch or iPhone that you do
not own and control ….” (LAEULA, part a.)
Moreover, there is another provision of the Terms and Conditions that relates to the new “in app purchase” feature of iPhone Software 3.0. This feature lets you pay for additional features for an app, whatever you purchase cannot be transferred to another device. The Terms and Conditions seem to say that you cannot transfer these features to other iPhones:
Certain Products may include functionality that enables you to purchase
additional services, or licenses to additional functionality or content
for use within the Product (“In App Purchases”). In App Purchases that
are consumed during the use of the Product (e.g., virtual ammunition)
cannot be transferred among devices; can only be downloaded once; and
after being downloaded, they cannot be replaced. Once a consumable In
App Purchase is purchased and received by you, Apple shall be without
liability to you in the event of any loss, destruction, or damage. All
In App Purchases are deemed Products, and In App Purchases made within
Third Party Products are deemed Third Party Products, and treated as
such, for purposes of these terms and conditions.
(Section 4.) Does that mean that if you purchase something in an app on your iPhone 3G, then you later decide to upgrade to an iPhone 3GS, you are not allowed to bring along the “virtual ammunition” and other add-ons that you purchased? But on the other hand, the LAEULA provides that “The terms of the license will govern any upgrades provided by Licensor
that replace and/or supplement the original Product, unless such
upgrade is accompanied by a separate license in which case the terms of
that license will govern.” (LAEULA part a.)
Thus, there seems to be a little confusion on whether you can transfer apps from one iPhone to another iPhone that syncs with the same computer. Since I don’t offer legal advice on iPhone J.D., I won’t try to sort all of this out here, but I think that the provisions I cited above are the relevant ones on this issue.
5. Please stay in touch. You agree to provide Apple “accurate, current, and complete information” when you register with Apple, and you also agree to “maintain and update your Registration Data as required to keep it accurate, current and complete.” Otherwise, “Apple may terminate your rights to any or all of the Service ….” (Section 7.) So if you move or change your phone number, by all means let Apple know quickly!
6. Keep your password secret. You are responsible for keeping your account and password confidential, and “Apple shall not be responsible for any losses arising out of the unauthorized use of your Account.” (Section 8(a).)
7. Don’t hack that app. It is a violation of the Terms and Conditions to violate the “security components,” which I presume means the digital rights management (DRM), on apps. “You agree not to attempt to, or assist another person to, circumvent,
reverse-engineer, decompile, disassemble, or otherwise tamper with any
of the security components related to such Usage Rules for any reason
whatsoever.” Apple reserves the right to monitor “for compliance purposes” so don’t be surprised if they figure out that you are doing something wrong. (Section 8(b).)
8. If you lose it, you may not be able to re-download it. You are responsible for maintaining the apps that you download. “Solely as an accommodation to you, some Products may be re-downloaded
for use in accordance with the Usage Rules applicable to such Products” but Apple doesn’t promise that you will be able to do so, and Apple has “no liability to you in the event a previously downloaded Product becomes unavailable for re-download.” (Section 9(a).)
9. Keep your reviews clean. As you know, you can post reviews on the App Store of the apps that you purchase. However, when you post, you cannot “infringe or violate the rights of any other party or violate any
laws, contribute to or encourage infringing or otherwise unlawful
conduct, or otherwise be obscene, objectionable or in poor taste ….” (Section 9(e).)
10. Apple owns your reviews Whatever you post when you review a prouct, Apple can use your words again. “Moreover, you hereby grant Apple a worldwide, royalty-free,
non-exclusive license to use such materials as part of the Service, and
in relation to Products, without any compensation or obligation to you.” (Section 9(e).)
11. No refunds. This is the policy I mentioned above. The general rule is that “no refunds are available.” (Section 12(b).) However, there are two exceptions. First, if you purchase an app and technical problems “delay or prevent delivery of” the app, then the “sole remedy” is that Apple will replace the app or refund the price that you paid. Apple gets to determine whether they replace the app or give you a refund. (Section 12(b).) Second, if you buy an app but then, prior to download, the app becomes “unavailable,” your “sole remedy in such cases is a refund of the price paid for the unavailable licensed Product.” (Section 18.) I know that Apple sometimes removes an app that was previously available in the App Store, and if you time your purchase incorrectly, this may happen to you. Something similar happened to me just this past weekend. There was an iPhone game available this weekend for free that normally costs a few dollars, so I decided to try it out. I clicked the button to download the app, but I got an error message. I tried again with no success. Then I went back to the App Store 15 minutes later and saw that the app had returned to its original price. Even though the App Store clearly said that the app was free when I clicked the button to get it, apparently the price changed during that small window before I could download it. Thus, I suppose under Section 18 my remedy was that I got my money back—and since I paid nothing, I got nothing.
12. iTunes cards are only for iTunes. I’ve always known that if you buy an iTunes gift card, it can be used only on iTunes, including the App Store. You cannot use the card to buy an Apple hardware product such as a new iPod or iPhone. What I didn’t know it that this is explicitly stated in the Terms and Conditions. (Section 16.)
13. Be careful when playing games. Section 20 is titled “Important Safety Information” and provides:
(1) To avoid muscle, joint or eye strain during video game play, you
should always take frequent breaks from playing, and stop and take a
longer rest if your eyes, hands, wrists or arms become tired or sore or
you feel any other discomfort. (2) A very small percentage of people
may experience seizures or blackouts when exposed to flashing lights or
patterns, including while playing video games or watching videos.
Symptoms may include dizziness, nausea, involuntary movements, loss of
awareness, altered vision, tingling, numbness, or other discomforts.
Consult a doctor before playing video games if you have ever suffered
these or other symptoms linked to seizures and/or epilepsy, and stop
playing immediately and see a doctor if these or similar symptoms occur
during game play. Parents should monitor their children’s video game
play for signs of symptoms.
I suppose these sorts of provisions are common in video games nowadays.
14. Objectionable material. Apple is pretty famous for excluding apps from the App Store if they contain nudity or other objectionable material. But just in case you find something that you consider offensive, you can’t blame Apple for it:
You understand that by using the Service, you may encounter material
that may be deemed offensive, indecent, or objectionable, which content
may or may not be identified as having explicit material. Nevertheless,
you agree to use the Service at your sole risk and that Apple shall
have no liability to you for content that may be found to be offensive,
indecent, or objectionable. Application types and descriptions are
provided for convenience, and you acknowledge and agree that Apple does
not guarantee their accuracy.
(Section 21.)
15. California, here I come. California law governs the Terms and Conditions, and you “expressly agree that exclusive jurisdiction for any claim or dispute
with Apple or relating in any way to your use of the Service resides in
the courts of the State of California.” On the plus side, it’s a wonderful state with lots to do while you are there.
16. Don’t sell your apps. Even if you are done using the app that you purchased, you can’t sell it to someone else. “You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application.” (LAEULA, part a.)
17. No nukes. You cannot use an iPhone app to design nuclear weapons, so don’t even think about it, buddy. “You also agree that you will not use these products for any purposes
prohibited by United States law, including, without limitation, the
development, design, manufacture or production of nuclear, missiles, or
chemical or biological weapons.” (LAEULA, part g.)
The above analysis is based only on the text of the Terms and Conditions. It may be that Apple has, from time to time, offered some explanations of the Terms and Conditions that alter or clarify something that I noted above. And once again, I’m not offering legal advice here, so if you want to learn more about your rights, go get a lawyer.
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