Apple unlikely to change SDK to fend off antitrust inquiry, says expert

Any such change could be seen as "evidence of wrongdoing," argues attorney

Apple may revamp its developers license to parry possible antitrust inquiries that were triggered by an Adobe complaint filed with federal regulators, reports claimed today.

But a reversal by Apple may not be enough at this point, an antitrust expert argued.

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Yesterday, several media sources, including the New York Post, reported that officials at the Department of Justice (DOJ) and the Federal Trade Commission (FTC) were mulling a possible antitrust investigation of Apple. The DOJ and FTC are allegedly looking into a recent Apple decision to block software developers from using cross-platform compilers when they create programs for the iPhone, iPod Touch, and iPad.

Apple may try to fend off those inquiries by again changing the iPhone 4 SDK licensing language, the Wall Street Journal said today in a story that cited an unnamed source.

That would do more harm than good, countered one expert. "It's unlikely that Apple would unilaterally change its licensing agreement," said Hillard Sterling, an antitrust attorney at the law firm Freeborn & Peters.

"Such a change may help preempt some potential government claims, but the FTC and/or DOJ may be preparing a larger case in which the licensing terms are just a part," Sterling added. "Also, the change may be used by the government as evidence of wrongdoing with the initial terms. It's more likely that Apple would agree to change the agreement as part of a settlement, which would include a release protecting Apple from those potential consequences."

Some developer tools makers also don't think a change in the SDK is necessary. In an interview last week after Apple CEO Steve Jobs trashed Adobe's Flash, Scott Schwarzhoff, vice president of marketing at Appcelerator, said his company agrees with Apple. Appcelerator sells a cross-platform compiler that lets Web developers recompile JavaScript and HTML applications into native iPhone code.

"We're in agreement with Apple on their two main points," said Schwarzhoff, referring to Jobs' anti-Flash missive. "First, that it's all about the unique iPhone experience, and preserving and pushing that. Second, that open technologies are preferred." JavaScript, Schwarzhoff argued, was an open technology, while Flash was not.

Although Appcelerator has been in contact with Apple about the same SDK licensing language that reportedly drove Adobe to complain to federal antitrust regulators, it has not yet gotten assurance that Titanium-compiled applications will be allowed into Apple's App Store. "We are confident that they will," Schwarzhoff said.

Other reports today claimed that the discussions at the DOJ and the FTC were sparked by a complaint from Adobe. Bloomberg reported that Adobe protested to officials at the agencies that Apple is stifling competition by blocking software developers from using Adobe's tools to create software for the iPhone and iPad.

Adobe today repeated its "no comment" of yesterday. Both the DOJ and the FTC have also declined comment.

Adobe and Apple have been embroiled in a public relations battle since early last month, when Apple changed the licensing agreement for its iPhone 4 SDK to ban developers from using cross-platform compilers, tools that let them write in one development framework -- say, Adobe's Flash -- and then recompile their work in native code for another platform, such as the iPhone.

Most analysts agreed that Apple's move was aimed right at Adobe and the cross-platform compiler included in its Flash Professional CS5, which the company rolled out in final form just days after Apple's SDK change. Two weeks ago, Adobe acknowledged it was the target when it canceled future development of the compiler.

Last week, Jobs dismissed Flash as "no longer necessary" on mobile devices, and wrote at length in an open letter about why Adobe's development tool was being banned. In response, Adobe's chief technology officer said the company was giving up on bringing Flash to the iPhone and iPad media tablet.

Yesterday, Sterling said it was unlikely that the government would be able to make antitrust charges stick, in large part because the company's iPhone does not have a monopoly on the smartphone market.

Apple has been investigated by federal regulators before. Last year, for example, the FTC opened an inquiry into whether Apple and Google violated antitrust laws by sharing directors, a move that prompted Eric Schmidt, Google's CEO, to resign from the Apple board of directors.

Apple has also faced civil antitrust lawsuits, most notably in 2008, when Mac clone maker Psystar accused Apple of abusing the monopoly it has in the Mac market. Several months later, a federal judge tossed Psystar's antitrust claims.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer or subscribe to Gregg's RSS feed. His e-mail address is gkeizer@ix.netcom.com.

Read more about app development in Computerworld's App Development Knowledge Center.

This story, "Apple unlikely to change SDK to fend off antitrust inquiry, says expert" was originally published by Computerworld.

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