Apple probably could not have satisfied all the wild and hopeful imaginings of everyone who weighed in on what its new iPad device would look like, and what its functionality would be. Whether or not the iPad will be the content distribution game-changer that so many are looking for is another matter, but it’s still a pretty interesting device. In any case, however, the iPad does at least raise certain legal issues to consider.
As smart as lawyers have become in trying to address new technologies in agreements, there is always the question of whether a particular device or distribution method falls within the scope of the agreement. In some cases, the party drafting the agreement is lucky enough to have their counterparty agree to unlimited, unrestricted descriptions of technology (e.g., in all media, technology and distribution methods, now known or hereafter to become known, anywhere in the Universe). However, all the parties to technology oriented transactions are aware of the importance of this issue, and the counterparty in more cases than not will push back to limit the scope to the “intended” technology.
Which leads us to the question: Where will the iPad fall within the scope of these types of agreements?
Clearly, the iPad is a mobile device. But is it a mobile device like a smartphone? Does it matter that not all of the iPad models will be tied to telecommunications carriers, i.e., the lower end models will work on WiFi? Does that take it out of the scope of the agreements that contemplate only carriage through telecom networks?
Is the iPad an iPhone? To the extent an agreement specifically contemplated an iPhone (for example, a development agreement for an App on the iPhone, or a content license agreement for an App to be available on the iPhone), is the iPad within the scope of that agreement? (Note that one advertised feature of the iPad is that all present iPhone Apps will run on it, although device-specific Apps are being developed as well.)
The iPad is also being touted as a video game device. Handheld video game players are definitely a distinct category in transactional relationships. Where does the iPad fall in that analysis?
What about agreements that use the term “computer” (yes, sometimes, we still see that in older agreements) in defining rights or obligations. Is the iPad a “computer”? On first glance you might think it is. But it doesn’t allow multitasking. Isn’t that a key element of a “computer”? Similarly, what about agreements that address the scope of content usage in the terms of the “World Wide Web” or “Web site”? Is an iPad App a “Web site”? Depending on who you represent in that question, you may argue it is or is not. Does the fact that the iPad does not run Adobe Flash video – a ubiquitous technology on the Web – impact that question?
Why are these questions relevant? The prospect of integrating video and other interactive content with the text and images from books is exciting, but do the scope of existing licenses reach the iPad and similar devices? If not, how do new agreements get structured? Those attorneys with roots in the days when CD-ROM multimedia publications were a new concept will remember these rights issues as they arose in that new category of device.
Speaking of the Web, is the iPad actually a Web killer? If the iPad is successful, and content owners can actually get people to pay for content available on an iPad App, why would the content owner make that content available for free on the Web? That issue, of course, has been present but relatively on the back burner because the limited screen size of the iPod/iTouch devices was trumped by even the smallest, least functional netbook. But this new Apple device can give netbooks, laptops and even desktops a run for their money in presenting content in a readable and accessible way. So what is a content owner to do? Remove content from the free Web interface and distribute only through a paid app? If not, and the iPad is actually just another tool for users to get content owner’s material for free, why are content owners actually so excited about the iPad?
Another lurking issue that the iPad may bring front and center is what this new category of device will do to the book publishing industry. We’ve been hearing a great deal about that subject, and rightly so, even with respect to existing dedicated e-book readers. Is a book repackaged with new content an “interactive book,” and “e-book” or an “audio book”? Or is it something entirely different? Does the fact that a book on a device like the iPad can be tied to continuously updated content take it out of either of these categories?
And, regardless of what the book application is considered, there will be questions of how the interactive content is developed, who creates it, who pays for it, and what rights and obligations the creators, publishers and book authors will have with respect to it. Will such content be considered to be derivative works of the book? If so, who owns the rights? Will authors be asked to continuously update the content associated with their books? What are the economics behind that? Do the existing author contracts work in this medium, or will they have to be restructured completely?
As you can see, there are many, many questions and not many answers yet. All of which means that the life of lawyer s practicing in this area will not be a dull one in the next few years. After all, it hasn’t been dull in quite a few years.