Does the Apple Developer NDA Still Make Sense?

When you sign up for an iOS or Mac developer account, you agree to certain terms. These are outlined in this public-facing PDF on Apple’s website. There are several sections that are referred to as “the NDA” by those in the community. Here’s the gist of it, from sections four and five of the document[1]:

Confidentiality. You agree that any Apple pre-release software and/or hardware (including related documentation and materials) provided to you as a Registered Apple Developer (“Pre-Release Materials”) and any information disclosed by Apple to you in connection with Apple Events or Paid Content (defined below) will be considered and referred to as “Apple Confidential Information”. Notwithstanding the foregoing, Apple Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of yours, (ii) information that is generally made available to the public by Apple, (iii) information that is independently developed by you without the use of any Apple Confidential Information, (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (v) any third party software and/or documentation provided to you by Apple and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation.

Nondisclosure and Nonuse of Apple Confidential Information. Unless otherwise expressly agreed or permitted in writing by Apple, you agree not to disclose, publish, or disseminate any Apple Confidential Information to anyone other than to other Registered Apple Developers who are employees and contractors working for the same entity as you and then only to the extent that Apple does not otherwise prohibit such disclosure. Except for your authorized purposes as a Registered Apple Developer or as otherwise expressly agreed or permitted by Apple in writing, you agree not to use Apple Confidential Information in any way, including, without limitation, for your own or any third party’s benefit without the prior written approval of an authorized representative of Apple in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Apple Confidential Information. You acknowledge that unauthorized disclosure or use of Apple Confidential Information could cause irreparable harm and significant injury to Apple that may be difficult to ascertain. Accordingly, you agree that Apple will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies it may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose Apple Confidential Information, you may make such disclosure, but only if you have notified Apple before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as Apple Confidential Information.

Furthermore, section six contains this sentence:

You agree not to use the Pre-Release Materials for any purpose other than testing and/or development by you of a product designed to operate in combination with the same operating system for which the Pre-Release Materials are designed.

While I’m no lawyer — nor do I play one on TV — the basic concept here that unless Apple has shared a particular piece of information on its website or public keynotes, that information is off-limits for public discussion or publication. If someone is found to be in breach of these sections, Apple can revoke your account or take legal action against that person or publication.

(The first item in section four is a weird line. Basically, once something is made public knowledge by someone else, you won’t be held responsible for re-sharing it, the way I read it. But again, I’m no attorney.)

Of course, visiting almost any site with “Mac” in the name, will result in seeing way more about iOS 7 or OS X Mavericks than Apple’s put out officially. Some people have already written reviews of iOS 7, which is just bonkers.

When Mac OS X Lion was in beta, Victor Agreda, Jr. at TUAW argued that Apple actually wanted the press to break the NDA and discuss features of the new operating system since the company wasn’t coming down as hard as it once did on people leaking details:

It’s become painfully clear that Apple wants all of us to poke and prod and test and above all write, record and post about Lion. Sure, the various YouTube videos of Lion’s features have been pulled down due to “copyright claims,” but this is a pretty tame response from a company that used to sue rumor sites like Think Secret into oblivion over leaks. Apple must feel that educating the masses begins with those of us (geeks, nerds, dweebs and fanboys) who feel compelled to play with every new shiny thing that drops down from the mothership. Indeed, as details bubble up to the mass consciousness, it’s a lot easier for Apple to have us lay the educational groundwork for friends and family than it is for Apple to convince hurried consumers to read its glossy white pages. “Where do I put apps?” grandma will ask, and we’ll instantly know where they go. Even better, instead of a bunch of kneejerk reactions (“Scrolling is broken forever! FAIL! One star!”), we’ll all be used to the tectonic shifts we’re seeing in Lion by the time the full release is available. Education doesn’t happen in an instant. It takes time to let the message soak in. With Apple allowing us to do as we please with this preview of 10.7, it’s softening the collective blow when we decide to do a “real” review of the OS later this year. The system works!

He closed his article with this:

So, from here on we’re going to ignore the NDA like every other Mac news outlet on the internet. We’ll play Apple’s game and help teach the masses about Lion. It won’t win us invites to Apple events, but then, neither has over five years of reporting on the company with laserlike focus. Instead, we hope that if you are offended by this breakage or wish to be surprised by the new features when Lion is officially released, you’ll pass over the posts with 10.7 info in them. In the end, it would seem it is in the reader’s best interest to stay informed, and that’s what we’ll aim to do. You win, Apple!

I like Victor — and he’s the only other tech writer in my entire state, it seems — but I think this interpretation of the NDA’s current state is too broad. That said, TUAW was really just hopping onboard with what almost every other Apple-centric news site was already doing.[2]

The reasons publications publish stuff like this is pretty simple: people read it. In a world where hardcore nerds will drop $99 and put a very unfinished product on their carry device,[3] stories about pre-release software bring massive traffic. I’m not sure Apple is relying on the media to educate the public, though.

Setting publications aside for a moment, the NDA serves as a wall between Apple and its competitors. While you’d be foolish to think that Google, Microsoft and their partners don’t have engineers and designers using Apple developer accounts to peek in on what Cupertino is doing, it’s better than nothing.

Right?

In a world where the NDA is only taken seriously by actual developers who have the most to lose by breaking it, does it still make sense for Apple to have one in place?

While Apple is surely more relaxed than it used to be when it comes to the NDA, I can’t help but think that it is still in place just so Apple has something in its back pocket if something truly crazy ever happened. It’s a safety net, in some respects, like patenting any thing the company’s employees can think of. The NDA is more defensive than offensive at this point. Apple allows a certain amount of information to be shared, but reserves the right to bring the hammer down when it deems necessary. Apple definitely still sends cease and desists to bloggers.

I for one don’t feel comfortable breaking the agreement I signed when joining the developer program. Not everyone feels that way, and while it bothers me, I can only control what I do. I strive to cover and discuss only what Apple’s made public. It only seems right.

Operating on the mentality that “everyone’s doing it” is a bad way to make coverage decisions, in my opinion.