CBC is forcing me to remove my app from the Mac App Store

http://mobile.davander.com/2011/09/cbc-is-forcing-me-to-remove-my-app-from-the-mac-app-store/

by kennywinker • 15 years ago

105 91 15 years ago

mobile.davander.com

Fizzer• 15 years ago

This rant would make sense to me if the app was free, but if you're making profit just by repackaging CBC's content they have every right to ask you to stop.

michaeldhopkins4• 15 years ago

He is not packaging it, though. As he says in the article, his app is basically a simple web browser that automates the process of going to the CBC's website and clicking on a stream URL. He does not distribute the content himself.

Also, it is true the CBC has a right to ask him to stop and that Apple has a right to remove the app at their discretion, but it is not necessarily true that CBC has a legal right to force him to stop. If the app is legal, Apple's policy of removing illegal content is being misapplied to this app.

Edit: Since I received a downvote from a petulant person I will try to explain further. As the writer of this piece explains, his app is basically a paid web browser that only works on part of one site. There is nothing wrong with writing a web browser, charging for a web browser and optimizing it for CBC content.

rwolf• 15 years ago

My new mission: downvote every comment I find that whines about getting downvotes. How to automate this...

TheCapn• 15 years ago

The reason you've been downvoted (not by me though, I'm not popular enough yet) is because your assertation is wrong. In your very first line you state that he is not packaging the CBC content when in all literal meanings of the word Packaging he is. He has written a wrapper for the content that allows him to provide the interface free from CBC's control and is profiting from it.

Now due to CBC's disclaimer on the content they have the right to refuse people from repackaging their content as it abstracts the source of the data. Should the owner (OP) misuse this content in some way there is a chance that CBC become liable. CBC would not sue Mozilla for providing access to the stream within their browser because the stream is not repackaged with non-CBC logos or misrepresentation of their logo. I would wager however that they would pursue a website that embeds the stream and collects revenue from it.

Arguably CBC wouldn't care if he gave it away but since his application would not exist without the CBC Radio content they have a decent grounds for suit against him. The author plays the pity card by trying to sell us the idea he did it for convenience but in reality he aimed to profit from the app. We know this because of his refusal to stop and use his tool privately and his strong attempt to continue profiting from the app dispite legal tension.

The long story short is that the author may have grounds to stand on legally if he got a good enough lawyer to spin his version of the truth but as things stand right now CBC is looking to defend itself legally against any potential liability resulting from 3rd parties profiting from their service.

jarek8• 15 years ago

What he's doing is equivalent to making a Webkit wrapper that displays Michael D. Hopkins's Blog (and only that), calling it the Michael D. Hopkins's Blog app and putting it up for sale in the app store. If you're the author of Michael D. Hopkins's Blog, or otherwise own rights to the content contained there, you might be a little peeved.

drunkpotato• 15 years ago

The right to ask the developer to stop is not what the post is about. The post is about legal threats using a claim of copyright infringement, which is not "asking" by any definition.

HeyLaughingBoy2• 15 years ago

[sigh]

If you're on my lawn selling lemonade, I don't have to "ask" you to stop. If I tell you to stop, you'd better get your butt off, because you're trespassing. Same concept.

AlexBlom• 15 years ago

Right or wrong, this has to be due to the repackaging of content and charging for it. Perhaps the response would be different if the app was free?

Excluding radios (which don't repackage in the same way, but I understand the authors point) are there any precedents supporting the repackaging of public content?

jrockway2• 15 years ago

A good example is all those Wikipedia and Stack Overflow content-suckers. Perfectly legal.

All this application is is a nice interface to "curl http://radio-stream.whatever/ > /dev/dsp". If this application is illegal, so is anything capable of speaking HTTP.

pilom4• 15 years ago

I was under the impression that SO "could" for instance copyright all user submitted content. In that case the republication of that content without the permission of the copyright holder would be illegal.

testcock12• 15 years ago

"The stream URLs can be accessed with any web browser, the streams can be played by any media player. If my app is infringing, so are iTunes, Windows Media Player, Safari, Internet Explorer, and Firefox. So is your car radio, for that matter."

None of those are charging for the access. And I think that is the only reason for CBC's aggressive approach.

cryptoz• 15 years ago

Your car radio is definitely charging for access. How'd you get that car radio in the first place? You bought it. With money.

mbreese4• 15 years ago

You can still make an analog radio yourself without having to purchase a license to do so. At least, in he US (not sure if you need a content license). So that argument is a little off. Plus, in that analogy, the authors argument still holds up - you are buying an app (car radio) that lets you view (hear) content that is otherwise distributd (broadcast) for free.

jrockway2• 15 years ago

There are non-free browsers that can access CBC's radio streams. Those must also be infringing.

testcock12• 15 years ago

The whole thing started with him labeling the app as if it is from CBC, brand name, logo and all. I think that's a pretty serious case of infringement, and CBC's attitude most likely stems from that.

postfuturist• 15 years ago

Car radios are not free. Windows Media Player is only available to people who have legally purchased Microsoft Windows.

IanDrake• 15 years ago

Not to beat this to death, but the developer created software. You're paying for the software, not the content.

It's like a paid browser (http://www.icab.de/index.html), the web content is free, but the software ads value somehow and costs money.

I hope someone can stand up to this kind of bulling and get this issue in court and decided on.

cube133• 15 years ago

>Not to beat this to death, but the developer created software. You're paying for the software, not the content.

The software only allows access to CBC content. I don't see any way of adding additional streams to the list. That's what they're objecting to, probably.

GiraffeNecktie• 15 years ago

The moral of the story: if you willfully appropriate someone's trademark and intellectual property their lawyers will settle for nothing less than complete surrender. Get over it and move on.

ynniv5• 15 years ago

What's wrong with you people? Dude made an MP3 player... If the CBC was concerned, they wouldn't have an unencrypted MP3 stream.

EDIT: Since when is HN frequented by people who dislike entrepreneurs, let alone an open web? Why are we not filing injunctions against all web browsers? iTunes? WinAmp? curl?

jarek8• 15 years ago

> Dude made an MP3 player...

A U2-branded MP3 player that only plays U2 music...

butterfi• 15 years ago

Since when does "open web" imply that its okay to put a wrapper around content that costs the CBC a significant amount of time and money, which they then give away for free, and sell that for your own gain? Unlike the programs you mention, this guy wrote software that serves one single purpose: to serve CBC streams.

pilom4• 15 years ago

From the CBC terms of use: "ANY USE, REPRODUCTION, ALTERATION, MODIFICATION, PUBLIC PERFORMANCE OR DISPLAY, UPLOADING OR POSTING ONTO THE INTERNET, TRANSMISSION, REDISTRIBUTION OR OTHER EXPLOITATION OF THE WEBSITE OR OF ANY CONTENT, WHETHER IN WHOLE OR IN PART, OTHER THAN EXPRESSLY SET OUT HEREIN, IS PROHIBITED WITHOUT THE EXPRESS WRITTEN PERMISSION OF CBC/Radio Canada."

-http://www.cbc.ca/aboutcbc/discover/termsofuse.html#ownershi...

mbreese4• 15 years ago

Does it say anything about what web browsers you can use to access the site?

pilom4• 15 years ago

No but my guess is that it wouldn't be too hard for the CBC's lawyers to say what he is doing is encouraging "Public performance" without "Express written permission"

alsocasey• 15 years ago

Exactly... I can already access any of these streams through URLs they themselves publish. How is this app any different than packaging a prettily wrapped webkit with bookmarks for these streams on its default homepage? Wouldn't the fact that these URLs exist invalidate any claims CBC may have with respect to transmission/streaming? What should be doen when the corporate entity itself facilitates infringement on its own terms?

Lukeas14• 15 years ago

This is similar to how the NFL limits reproduction of its broadcasts. Yes, it's legal to receive the broadcast using any TV but it's still illegal to take that stream and rebroadcast it over the net or some other platform.

dangrossman• 15 years ago

What if I wrote a radio app, and someone provided me the URL of CBC's stream. I've never visited their website; how can I possibly be bound by their terms of service? A contract requires agreement and contractual intent -- can't exist where I haven't even seen the terms. I'm also not creating any copies of their work, so copyright law doesn't come into play. Where's the legal basis in stopping my app?

[I am not the OP, just creating a scenario]

cube133• 15 years ago

I think that would be fine. It's the exact same thing as iTunes or WMP.

voyou• 15 years ago

> I'm also not creating any copies of their work.

To listen to the content they are streaming on their website, you need to make a copy of it. Now, you could argue that, by creating a URL which will stream that content to any program that asks for it, they have implicitly given everyone permission to copy it in order to listen to it, but I'm not sure that's legally sound, particularly given that AFAICS, the only way in which they publish that URL is in the context of the specific player on their website.

(Now, as a publicly-owned broadcaster, the CBC should be streaming its content in a way that allows anyone - or anyone in Canada, anyway - to access it how they choose; but that's a somewhat separate question.)

alwold• 15 years ago

It seems like it might make sense to re-brand the app as a generic stream player. Then you could provide some sort of directory service to look up available streams where you provide access to CBC, along with other streams from other providers. The directory could even be made into a community feature where users can add new stream URLs.

pilom4• 15 years ago

Lets say a company really did want to say "only paying customers can listen to my stream." Technologically, how do you create a stream that has a URL for compatibility with current players but limits who it plays for?

mattparcher• 15 years ago

Make the audio unlistenable unless you pay for special headphones/audio adapter?

</sarcasm>

bnr• 15 years ago

give out unique stream urls to customers, then make sure each only works for one client at a time.

useflyer• 15 years ago

the same way porn websites limit who has access

ChuckMcM2• 15 years ago

This rant makes me wonder if this is the author's first dance at the IP party. If so it could be instructional for them.

The bottom line is that CBC sees you selling an application the sole purpose of which is to play their content and it competes with their application which does the same thing. Further they have stated in clear and bold language that such exploitation is not a right they are willing to share.

That's a pretty straight forward case.

Some folks here are posting 'but doesn't the radio infringe?' and the answer is no, since they have an agreement with the radio and radio manufacturers. But if the radio manufacturer created a radio (for example) that let you listen to CBC broadcasts, and when it detected a commercial it 'blanked out' that signal and filled in its own commercial. Well that would be pretty exploitive would it not? If your a content provider you prevent that from happening by aggressively shutting down anyone who doesn't go through an approved path. (like a web browser)

The OP isn't doing any of that, he just wants a decent way to listen to these guys, but from a legal perspective his 'repackaging' is no different than if it had been for more nefarious reasons, and if they don't shut this guy down then some bad guy will build their own custom player with some more obviously exploitive use and point to this guy and say "Unfair, you didn't shut him down, are you being unreasonable here?"

The correct 'answer' here is that you meet with the business development folks at CBC and you explain to them your 'problem' (crappy flash player yadda yadda) and your 'solution' (custom widget) and say to them "What would it take to have you on board with this?" You could offer them pre-release review rights for your app, a cut of any revenue from sales, etc etc. Its a twisted world though, be prepared for people who believe contradictory things at the same time.

mustpax2• 15 years ago

Some folks here are posting 'but doesn't the radio infringe?' and the answer is no, since they have an agreement with the radio and radio manufacturers.

Oh, I didn't know you needed a license to manufacture radio receivers, care to provide some sources to back this claim up?

evilduck• 15 years ago

He might be referring to this:

http://en.wikipedia.org/wiki/Television_licence

ChuckMcM2• 15 years ago

The manufacturing of radio recievers is nominally regulated by the FCC in the US and other state agencies in other areas. I say 'nominally' because they are generally of the form 'you cannot receieve frequencies used by celluar telephones' like this document: http://www.fcc.gov/guides/interception-and-divulgence-radio-... outlines.

There is also rule making about what radio broadcasters have to pay to rights holders when they broadcast said content.

And importantly, the FCC at least (and probably the Candian equivalent) don't put 'streaming audio' over the internet in the same category as broadcasting at all, rather it is a re-distribution of content. And permission to do that has no 'standard' for acquiring rights applied to it.

You need only look at Pandora's attempts early on to pay exactly what the radio stations pay to play music which was defeated in the courts. Pandora negotiated a separate contract for payments for that music.

Or to try to listen to a major league baseball game over the Internet by going to the KNBR web site and listening to their player app. (which goes silent when games are on)

Bottom line is, the content owner gets to make the rules with regards to who, how, and when their content can be consumed/received. All of this crap has been hashed out several times in the courts by several different parties.

Two things are very well established via litigation:

1) Streaming isn't broadcasting.

2) The content provider has the exclusive right to say who can or cannot use / listen / access their streamed content.

I understand that it sucks and is anathema to folks who feel like if they write an app that can pick up an audio stream and play it then they should be allowed to do that, however since I follow this stuff and its goings on I am familiar with how content owners have prevented folks from being given that right. Davander Mobile didn't understand that, because if they did their blog posting would be 'Oh darn the CBC figured out what we are doing and now we have to take our App off the App Store.' I speculated that their lack of understanding came from it being their first encounter with the world of intellectual property regulation and that was probably unfair, I have no basis for evaluating their cluelessness and should keep my speculation to myself.

cube133• 15 years ago

There are two other things here that I think are important:

1. He's charging for the application. That really moves this from a "Big content bullying little guy" to "straight forward infringement".

2. As far as I can see, there's nothing that indicates that the application was not an official CBC app. An uneducated user could have bought the original version, thinking that it's an official app, and never knew that it was not.

robgough• 15 years ago

From the article the developer admits that in the first instance, he was a bit silly and shouldn't have used their radio.

But for your first point, he's charging for a product. Something that can pick up internet radio streams. How is this different from a manufacturer of radio equipment charging to purchase their device.

It would seem to me that including the ability to listen radio streams other than those of the CBC would mitigate any legal issues (though I fear he'd have to start again with a new app submitted to the app store, rather than an update to thsi one) and pre-load that with his beloved CBC stations as "suggested content".

ynniv5• 15 years ago

This foreshadows how Apple's model will devolve. I have been a Mac fanboy for a long time, and have always said that Apple wouldn't turn into Microsoft if they became popular. The good news is that it appears they won't; we don't see Apple promoting their inferior products with the goal of locking people in to their platform. What we see instead is Apple ardently defending Intellectual Property rights, even when there does not appear to be infringement. Only the clear establishment will be allowed in their channel, and only their channel will be allowed on their hardware.

This is more avoidable than file formats: one can easily switch to another operating system without repercussion. Unfortunately, there aren't many good alternatives.

noonespecial• 15 years ago

It's different than a physical radio because a physical radio can get more than just one station. Think about how far you'd get making a radio that got just one station and marketing it as the "Z107" radio or the "ABC" radio.

The CBC is right. They're embarrasing themselves but they're right. Just because they have the right to take their ball and go home doesn't mean they'll make many friends in the neighborhood doing so.

dchest2• 15 years ago

1. My old Soviet wired radio could only "receive" one station.

2. On the screenshot you can see four stations, not one. They are from a single broadcaster, but they are different "stations" (URLs).

3. How does the number of stations make any difference?

jarek8• 15 years ago

I'm not convinced the Soviet datapoint is useful here, considering that both of the important issues here (charging for a device/app that accesses content owned by another entity and use of that entity's trade marks) would have been vastly different in the USSR system, where both the device manufacturer and the broadcaster were part of the state.

killerswan• 15 years ago

This is the organization which thinks hyperlinks from other websites can be a copyright and/or terms of use violation, too. Right?

yock• 15 years ago

What if the developer repackaged the app without the URLs for CBC included? If the user had to put the stream URLs into the app himself, would that placate the technically-challanged CBC?

windsurfer• 15 years ago

Yes. That is the only legal way of using this content. The CBC forbids packaging any content from their site... which includes URLs.

rhizome• 15 years ago

That's the kind of logic that would prevent Google Maps from displaying house addresses, which it does do.

randomdata3• 15 years ago

The CBC forbids packaging any content from their site... which includes URLs.

If that turns out to be legally enforceable, the internet as we know it is over. The web is based entirely on the idea of packaging URLs from other websites.

Kroem3r• 15 years ago

Maybe, maybe not. But by starting out clearly infringing (abusing registered marks, etc.) the likelihood that anyone would do business with the dev is greatly reduced.

PS. You ad hominem charge that the CBC is technically challenged is worth reconsidering.

Pahalial• 15 years ago

The story kind of smells. He harps on pitching it as an alternative to their flash-based player, but what was stopping him from using the same streams he's repackaged in iTunes (or music player of choice)?

All in all, I don't really approve of his repackaging of our public content for personal profit. If he'd had to build a service to scrape the flash audio and then made it accessible via regular streams, that would justify this app's existence and price, but as it stands I find myself mildly unsympathetic.

quinndupont• 15 years ago

I completely agree with your second point. CBC should surely let people use their content (legal stuff aside, it's the right thing to do), but letting parasites make money off of it isn't right.

stickfigure• 15 years ago

How is this guy a parasite any more than Opera is for creating a (perhaps slightly better) player for the myriad free content on the web?

Before, Mac users had a crappy experience listening to the streams. Afterwards, it was presumably better. He's adding value to the ecosystem - not a lot, maybe a couple dollars' worth... unsurprisingly, this is what he charges.

starnix17• 15 years ago

What about a paid app that's classified as simply an Internet radio player that has a huge directory of stations (similar to iTunes)?

Would that be subject to similar legal issues?

I may or may not have just released one :-).

Edit for more insight: Here's my app - http://endlesswhileloop.com/apps/dial

Some others... Snowtape - http://vemedio.com/products/snowtape_phone Radium - http://www.catpigstudios.com/

Both of these are great apps with their own built-in Internet radio directory that I assume they built on their own with or without stations' permissions.

nirvana2• 15 years ago

First off, thank you for correctly attributing the issue to CBC, rather than saying that Apple is forcing you. (too many of these articles act like it is Apple's doing.)

Secondly, I think that they may not actually be forcing you. I suspect that if you just kept selling it, you might never hear from them again. If you do hear from them again, it won't be a summons for a lawsuit. I think you're at step 2 of about 30 steps before they file.

Before they file, they have to make sure that they have a case that is worth filing. The fact that you already complied with the tidemark and copyright issues, and that you're just enabling reception of content they are freely distributing makes the chance of the court case being a total farce very high.

While any court case, even a farce, may be more expensive than you want to bear, there is nothing to stop you from immediately removing the app from the store the moment they actually file.

But the likelihood of them having farce of a court case probably means they won't file. It would be in the news, and the news would not be sympathetic to CBC (at least if this were america...)

Personally, if I were in your shoes, that's what I'd do... wait until they indicate they are serious. Sending letters is meaningless, and all letters from lawyers sound threatening to non-lawyers. I'm not a lawyer and this isn't legal advice.

I did have a situation like that where someone claimed I was infringing, I thought it would be a farce, I simply ignored them, and they never sued. If they had sued, it would have been a media circus and I was almost hoping for that.

HeyLaughingBoy2• 15 years ago

While any court case, even a farce, may be more expensive than you want to bear, there is nothing to stop you from immediately removing the app from the store the moment they actually file.

What would that accomplish? He would still have in hand a summons to court and a lawsuit filed against him and whatever damages they felt were owed. Assuming they are unwilling to settle, now he has to go to court to defend himself, or risk getting a summary judgement against him.

You can ignore (as a calculated risk) letters claiming you're infringing. Ignoring an actual notice that a suit has been filed against you is another thing altogether.

[edit] OK, at the time of filing, he won't have a summons, but he still has to Answer the Complaints filed.

nirvana2• 15 years ago

Right, in fact, I'm suggesting that he not ignore a notice of a suit, and instead remove the app from the store. There may be a case for stopping him from continuing to sell the app, and by removing it, he eliminates that case. The case for "damages" done by selling the app up until the date of the lawsuit is a different case, and I believe a more difficult case to make than the "he's using our trademarks" case.

Since anyone can get these same broadcasts via the internet, that he is letting people get, via the internet, it is kinda hard to say he's damaged CBC's ability to distribute the broadcasts, via the internet, which they distribute for free. He can't have cut into any of their sales... so the claim that he's damaged them in some way becomes kinda tenuous.

steve8918• 15 years ago

It looks like he raised the ire of the CBC because he used the CBC logo to promote an app he was selling for profit, and now they won't stop until it's completely eradicated. Big mistake to steal someone's trademark, but it's a life lesson.

What he should do is completely remove the app, to satisfy CBC and Apple. In a couple of months, simply create a new app that does the same thing with no reference to Canada or CBC or anything. In the description, mention it will play X, Y, and Z, and on the web page, mention you can play CBC streams by pointing to the URL.

This seems legit to me.

shinratdr• 15 years ago

I was in agreement with the guy, right up until he mentioned he was charging for it. You can do this as a labour of love or a free open source project, but once you start charging for it you're profiting off the work of others.

It's not CBC's mandate to allow their name & content to be used without permission for the profit of a 3rd party. In fact, it's directly against their best interests to allow this.

There are clearly ways to do this properly. Last time I checked Radium for OS X and TuneIn Radio for iOS and Android are still for sale and doing fine, despite offering a desktop or mobile player for all of CBC's streams AND charging for it.

joshaidan• 15 years ago

Hard to say who's side I'm on, but I can't help but think of those spam apps you see all over the Internet that charge you a small or large sum of money for something you can get for free on the net (i.e. watch all the free movies you want for $10, which in turn they sell you a repackaged version of uTorrent with links to Pirates Bay). In a way, the CBC is protecting the free availability of their service; it's like they're protecting themselves and their brand from people who want to profit off of it.

anigbrowl• 15 years ago

I'm guessing there's a reason we're only seeing the last part of the email exchange: http://mobile.davander.com/wp-content/uploads/2011/09/threat...

Also, Cory doesn't seem very familiar with the concept of Crown Copyright. State-produced/owned documents are not automatically public domain in Canada as they are in the US; the government retains copyright and licenses such material at its pleasure. Licenses are often available for the asking, but there is no implied license.

naner• 15 years ago

About six months ago I made a Mac app to play their radio streams, so that I wouldn’t have to use the web player on my Mac. I recently polished it up a bit, and began selling it in the Mac App Store.

I'm going to sidestep all the obvious stuff that is wrong with this ridiculous blog post and just say that it is unethical to sell an app which taps into someone else's content in a nonstandard way that you have no control over. Any time the people controlling the content make the slightest change they could break your app. And your customers are left with a lighter wallet and a suddenly non-functioning app.

If you're going to write a program that accesses someone else's services in an unsupported way, really the only thing you can do is give it away.

webrakadabra• 15 years ago

I pay for my good old Philips radio and philips benefits from the sale. CBC can not demand Philips to not sell radios.

I pay for my smartphone, which has software to listen to radio and Apple, Samsung or someone benefits from the sale. CBC doesn't demand them to exclude CBC.

Now if I choose to pay for another software and the developer benefits from it, what interest does CBC have here that they they don't have in previous situations ?

The matter of the fact is that Hardware/Software is different from Content. Period. Hardware/Software facilitates content. While the CBC radio content itself is free, the Hardware/Software can sell and for a profit.

CBC is forcing me to remove my app from the Mac App Store

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