A lawyer’s take on the Apple iPad

February 2, 2010

Jeffrey Neuburger is partner at Proskauer

By Jeff Neuburger

Regardless of whether the Apple iPad will be the content distribution game-changer that the tech industry heralds it to be, it is still a pretty interesting device that has clearly piqued the interest of mobile consumers and gadget geeks across the globe.

That said, content providers and publishers, wireless carriers, application developers and mobile marketers should be forewarned: the iPad does raise certain legal issues.

As smart as lawyers have become in trying to address new technologies in transactional 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.

This leads us to several questions:

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 telecoms networks?

Is the iPad an iPhone?
Do the extent an agreement specifically contemplated an iPhone – for example, a development agreement for an application on the iPhone, or a content license agreement for an application 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 applications will run on it, although device-specific applications are being developed as well.

Is the iPad a video game device?
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?

Is the iPad a computer?
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 does not allow multitasking. Is that not 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 application a “Web site”?

Depending on the parties involved and what each role is in that question, you may argue it is or is not. 

Does the fact that the iPad does not run Adobe Flash video – which is considered to be a ubiquitous technology on the Web – affect 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 does 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 application, 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 backburner because the limited screen size of the iPod touch 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 application? 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? 

What will the iPad and this new category of device do to the book publishing industry?
We have been hearing a great deal about that subject, and rightly so, even with respect to existing dedicated ebook readers. Is a book repackaged with new content an “interactive book,” and “ebook” or an “audio book”? Or is it something entirely different? 

Does the fact that a book on such a device as the iPad can be tied to continuously updated content take it out of either of these categories?

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 questions and not many answers yet. Stay tuned.

Jeffrey Neuburger is partner at Proskauer and co-head of the law firm’s technology, media and communications group and a member of the privacy and data security group in New York. Reach him at .