Nintendo Brings Mario to the iPhone! No, wait...

As if there could possibly be any lingering doubt that Apple's approval bots over at the iTunes App Store have been consistently asleep at the wheel, the sudden appearance of a simple "visit these map locations and earn a coin" GPS-based game called Mariolife [iTunes Store Link] should cause even the most skeptical of apologists to scratch their heads.

Right from the start, problems (and complaints) concerning the approval process have turned up due to seemingly abitrary App Store rejections. A quick Google search turns up phrases such as "more app store rejection fun" and "Apple's Terrifying App Store Rejection Policy" and "rejected from Apple's App Store for the most absurd of reasons" and, lest anyone think Apple discriminates via this "absurd" policy, even the popular band Nine Inch Nails saw an App rejected.

Why? Because the app provided access to a podcast which provided access to a song which happened to have a nasty word in it. Similarly, the Eucalyptus eBook Reader app was rejected for providing access to the Project Gutenberg library of books, and one of those books happens to be the Karma Sutra. Scandalous.

To Apple's credit -- ahem -- most of these Apps eventually get approved, but only after a bit of a public outcry and not before the loss of a little credibility. (It probably doesn't hurt to be Trent Reznor when you complain, either.)

Just to mix things up, or to keep critics on their toes, Apple has chosen to allow an app which features graphics of Nintendo's Mario Bros. characters, ripped straight from Nintendo's own games, never-mind that the app is actually named after the titular character -- and it's selling for $2.99. (For what it's wroth, it actually does appear to be selling. Several reviews have been posted. Verdict: The app kind of sucks.)

The problem? Nintendo isn't involved with the game. It was created by a guy named Slava Bushtruk.

When the approval process lets slip through an obvious violation of Nintendo's intellectual property while continuing to reject seemingly innocuous apps, the perception that the process is deeply flawed at best, and arbitrary at worst, grows stronger.

I sent an email over to John Gruber at Daring Fireball, who -- after posting a link and a "WTF?!" to the App in question -- provided this update:

Ends up the App Store review team simply doesn't deal with copyright and trademark verification (with the exception of enforcing Apple's own trademarks, of course). Any beef Nintendo has (and trust me, they're going to have a beef with this app) is between Nintendo and Mariolife's developer. Makes sense. SOURCE

Even so. Gruber presumably learnt this information because he has clout, and clout breeds connections to inside information and sources who are quick to respond to criticisms. Meanwhile, countless developers are left scratching their heads when an obvious trademark violation is admitted -- the Mariolife violation could not be more blatant and shouldn't really require verification beyond the application of common sense -- yet Apple seems to go out of their way to inspect possible potty-mouth language issues based on content an App might access.

In other words, when Apple finally has a seemingly good reason to reject an App, it glides through the approval process. If the policy regarding trademark and copyright is to be "let the developer deal with the fallout" why not let all Apps through, and only worry about removing Apps if/when there is a public outcry, rather than looking the fool by approving apps after-the-fact that should have been approved from the get go? It's a defensive vs. offensive strategy and Apple would be spared a lot of grief if they'd simply drop the offensive stance.

Ultimately, this is a game of perception, and the perception hasn't been favorable, thus far. The overwhelming success of the App Store will certainly blunt some of the criticism Apple is facing, but leaving developers and consumers confused about policy simply isn't good business, even in the face of success.

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5.0

3.3

{"commentId":7964227,"authorDomain":"brianford"}

It's worth noting that I am addicted to searching for and buying new apps for my iPhone. I buy games I might not even like -- something I'd never do for, say, my Nintendo Wii -- simply because they're there, and they're relatively cheap.

With that said, I certainly hope Apple does better in the future, and the inclusion of a ratings system seems as though it might help. (I was shocked to see a Suicide Girls app, but disappointed to see that it was fairly chaste, given the source. Still, it's a step in the right direction.)

{"commentId":7964227,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#1 - Wed Jul 1, 2009 10:52 AM EDT

{"commentId":7964468,"authorDomain":"sorrelen"}

sorrelen

How much has the iPhone cost you overall with apps do you think?

Sounds like I would go broke :-)

{"commentId":7964468,"threadId":"616853","contentId":"2986995","authorDomain":"sorrelen"}

1 vote

#1.1 - Wed Jul 1, 2009 11:04 AM EDT

{"commentId":7964644,"authorDomain":"brianford"}

Hrm. That's hard to say. I've not kept a tally, though many of the apps I've downloaded have been free, while the vast majority of the paid apps have been only 99 cents. I may have paid more than $4.99 once, but I don't recall. A smattering of apps (4 or 5) have been between $1.99 and $2.99.

{"commentId":7964644,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#1.2 - Wed Jul 1, 2009 11:13 AM EDT

{"commentId":7964819,"authorDomain":"sorrelen"}

sorrelen

I may get one years from now but I don't see one in my future.

Although I found your article enlightening in the world of Apple Apps...

{"commentId":7964819,"threadId":"616853","contentId":"2986995","authorDomain":"sorrelen"}

1 vote

#1.3 - Wed Jul 1, 2009 11:21 AM EDT

{"commentId":7966320,"authorDomain":"justinpm"}

One particular app I have to give a serious thumbs up for is Autostitch. As crappy as the photos that come out of the iPhone are, when you piece together a crapload of them they look great. And for $2? Sold. The panoramics that come of out of it are awesome. As far as games, I was really hoping that this friggin' approval process would get it right, they let this piece of crap pass but they blocked a C64 emulator when the guy had all of the rights figured out and everything. Who the hell's driving over at Apple? Or is it the monkey with the typewriter kind of approval?

{"commentId":7966320,"threadId":"616853","contentId":"2986995","authorDomain":"justinpm"}

2 votes

#1.4 - Wed Jul 1, 2009 12:30 PM EDT

{"commentId":7968422,"authorDomain":"basseq"}

Apple certainly does have a few strange policies regarding iPhone apps, most notably the selective rejection of applications that provide access to questionable material. (Any Twitter client can show bad words or link to naughty pictures, for example.)

I can see why they would approve an app like MarioLife, though. It's simply not their job to track down licensing and fair use on the millions of applications submitted to date. Yes, MarioLife is a glaring violation and perhaps should have been questioned, but that would have been above and beyond the duties of the app processing team.

they blocked a C64 emulator when the guy had all of the rights figured out and everything

The iPhone developer guidelines specifically state that any sort of code emulator is prohibited. You won't see a C64 emulator any sooner than you'll see a Java VM. I don't fault them for that one bit: the rights have nothing to to with any rejection decision process (as we see in the MarioLife case).

For those who are interested—apps I have purchased:

Strategery (spectacular)
Twitterific (I support the CHOCKLOCK)
Zen Bound (interesting and fun)
DC Metro (useful, though not well designed)
QuadCamera (neat results)

{"commentId":7968422,"threadId":"616853","contentId":"2986995","authorDomain":"basseq"}

3 votes

#1.5 - Wed Jul 1, 2009 1:57 PM EDT

{"commentId":7968601,"authorDomain":"brianford"}

Yes, MarioLife is a glaring violation and perhaps should have been questioned, but that would have been above and beyond the duties of the app processing team.

Apparently, what you say is true. My problem isn't so much that they followed policy in this instance, or even that the policy is stupid in this instance, my problem is the perception of asininity that is born of so many of their odd choices, weighed against this choice. Sure, when you think about it, it makes sense to just wash their hands of trademark violations -- but that's only if you actually think about it -- on the surface it really seems like a bizarre approval next to so many of the rejections.

In other words, it might not seem to silly that it slid through, if so many other apps hadn't made it, for really, really bizarre reasons.

{"commentId":7968601,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#1.6 - Wed Jul 1, 2009 2:05 PM EDT

{"commentId":7978393,"authorDomain":"justinpm"}

That's all well and good and I've seen that exactly too John, but they have approved programs that do exactly that already. Frotz is a code emulator (text based games, but code nonetheless) and that program has been in the store for a good while.

{"commentId":7978393,"threadId":"616853","contentId":"2986995","authorDomain":"justinpm"}

#1.7 - Wed Jul 1, 2009 10:43 PM EDT

{"commentId":7978546,"authorDomain":"justinpm"}

Full Commodore 64 Emulator Rejected from App Store

One of the articles details this situation's hypocrisy pretty well.

{"commentId":7978546,"threadId":"616853","contentId":"2986995","authorDomain":"justinpm"}

#1.8 - Wed Jul 1, 2009 10:55 PM EDT

{"commentId":7978827,"authorDomain":"basseq"}

The difference between Frotz's text-based game format and an emulator like C64 is not insignificant, and in the territory between those two types of application lays the Apple iPhone app guidelines.

{"commentId":7978827,"threadId":"616853","contentId":"2986995","authorDomain":"basseq"}

2 votes

#1.9 - Wed Jul 1, 2009 11:18 PM EDT

{"commentId":7980058,"authorDomain":"justinpm"}

I understand that, but in the article I linked it states more things. Things like a Chip-8 emulator, a programmable calculator emulator, and then two Sega games that are nothing more than an emulator packaged with the commensurate ROMs. Surely at least the Sega games are parallel to the situation that developer is dealing with.

{"commentId":7980058,"threadId":"616853","contentId":"2986995","authorDomain":"justinpm"}

#1.10 - Thu Jul 2, 2009 1:56 AM EDT

{"commentId":7983180,"authorDomain":"basseq"}

Look, I'm not trying to stand up for Apple here, or even show that they have consistency—or logic—in their app store decision process. I understand that other applications might be seen as violations, making the C64 rejection sting so much more. But the article you linked is a rant by the C64 developer who really doesn't know how SEGA implements their games and, at the end of the day, the C64 app is still a pretty blatent violation of the app store violations.

{"commentId":7983180,"threadId":"616853","contentId":"2986995","authorDomain":"basseq"}

1 vote

#1.11 - Thu Jul 2, 2009 9:58 AM EDT

{"commentId":7983561,"authorDomain":"justinpm"}

I'm not saying that the C64 app should make it through, I'm saying that Apple should be more even across the board. I also think it sucks to be in a development environment where you find out at the last step in the process whether you'll even get to sell your application.

{"commentId":7983561,"threadId":"616853","contentId":"2986995","authorDomain":"justinpm"}

#1.12 - Thu Jul 2, 2009 10:18 AM EDT

{"commentId":7984724,"authorDomain":"basseq"}

I'm saying that Apple should be more even across the board

In cases like applications that provide access to "inappropriate" content, their track record is uneven at best. But in terms of the emulators, well, it's such a technical consideration that—without inside knowledge—there's no evidence that apps like SEGA games should have been rejected for emulation. It's conjecture at best.

I also think it sucks to be in a development environment where you find out at the last step in the process whether you'll even get to sell your application.

I agree with that wholeheartedly with that statement; Gruber's been calling for a "pre-approval" process for quite a while. What sucks for the C64 team is that they spoke with someone from Apple and naively took that person's interest for implicit approval.

{"commentId":7984724,"threadId":"616853","contentId":"2986995","authorDomain":"basseq"}

2 votes

#1.13 - Thu Jul 2, 2009 11:11 AM EDT

{"commentId":7965911,"authorDomain":"masternav"}

MasterNav

Good article Brian. I wonder if the secretive corporate culture is creating a lot of challenges around the dev/customer communication expectation. When Apple decided to start its own line of retail stores they brought in retail experts to build the spaces and the experience. I think they relied on internal resources for the App Store and did not look ahead enough to anticipate the challenges around approval and the wilder nature of the iphone app developers.

{"commentId":7965911,"threadId":"616853","contentId":"2986995","authorDomain":"masternav"}

2 votes

#2 - Wed Jul 1, 2009 12:11 PM EDT

{"commentId":7967088,"authorDomain":"Prilj"}

Prilj

I can't wait to see what kind of "settlement" occurs between Apple and Nintendo. Someone really dropped the ball on this one. :P

{"commentId":7967088,"threadId":"616853","contentId":"2986995","authorDomain":"Prilj"}

3 votes

#3 - Wed Jul 1, 2009 1:03 PM EDT

{"commentId":7967742,"authorDomain":"jaybutler"}

Jay Butler

I asm more interested in seeing what transpires between Nintendo and Slava Bushtruk.

{"commentId":7967742,"threadId":"616853","contentId":"2986995","authorDomain":"jaybutler"}

2 votes

#3.1 - Wed Jul 1, 2009 1:30 PM EDT

{"commentId":7968405,"authorDomain":"brianford"}

Yeah, I agree that Apple won't have any issues -- though they did presumably make 30% of whatever monetary infringement occurred, now that I think of it.

{"commentId":7968405,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#3.2 - Wed Jul 1, 2009 1:56 PM EDT

{"commentId":7975970,"authorDomain":"insert"}

insert_name_here

Apple will certainly owe money. Since they do check content and only approve some of it, they can't claim safe harbor protection.

{"commentId":7975970,"threadId":"616853","contentId":"2986995","authorDomain":"insert"}

1 vote

#3.3 - Wed Jul 1, 2009 7:49 PM EDT

{"commentId":7976482,"authorDomain":"brianford"}

Since they do check content and only approve some of it, they can't claim safe harbor protection.

Eh, I wouldn't ever presume to say "never" but I also wouldn't presume to say "certainly" given that I do not have access to their history, nor any idea how their payment system is set up, how it pays out, etc. As I've said, or as Gruber's update said, anyway, they've certainly never rejected something based on a copyright or patent claim, either. They don't approve or reject based on that, and one assumes there's some lawerly purpose behind that decision.

I suppose it wouldn't surprise me to find that any percentage they've received of the sales of the app (30% x # of sales) would be paid out in the case of any sort of legal action, but that's assuming Nintendo doesn't just send out a cease and desist and wash their hands of the issue, assuming Apple complies with the takedown notice, which they certainly would.

At any rate, I imagine Apple knows what they're doing from a legal perspective. I hear they have some lawyers.

{"commentId":7976482,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#3.4 - Wed Jul 1, 2009 8:26 PM EDT

{"commentId":7976933,"authorDomain":"insert"}

insert_name_here

I'm not a copyright lawyer, but my recollection of the DMCA is that any content provider who engages in any sort of approval/disapproval of content on any basis loses safe harbor protection, even if they don't approve based on copyright status.

I do see your point that Apple is probably quite well lawyered-up. However, I don't think that that means Apple has thought of everything. Lawyers aren't perfect, after all. Or maybe their censors just missed this one app, even though they were supposed to reject it. Either way, I don't think that the fact that Apple "has some lawyers" means that they're in the clear. It's not uncommon for big companies to get sued and lose, even if they have great counsel.

I do think that this will get settled quickly. If I'm correct, then Apple is clearly in the wrong, legally. There'd be no reason for them not to settle for some small fraction of their profit. Nintendo, having not suffered any serious harm from Apple, and not wanting to piss off Apple fanboys, probably will take a few grand and forget about it.

{"commentId":7976933,"threadId":"616853","contentId":"2986995","authorDomain":"insert"}

#3.5 - Wed Jul 1, 2009 8:58 PM EDT

{"commentId":7978110,"authorDomain":"brianford"}

There'd be no reason for them not to settle for some small fraction of their profit. Nintendo, having not suffered any serious harm from Apple, and not wanting to piss off Apple fanboys, probably will take a few grand and forget about it.

If Nintendo goes after Apple as part of their complaint, and they aim to settle, it won't be for a few grand, that's for sure. A half a day of lawyer fees would cost more than they'd get, and it's going to take a lot of half days to reach a settlement agreement.

If they were smart, they'd demand the content be taken down, and then discuss some interesting partnership opportunities with the leverage. I've said it before, but Apple and Nintendo compliment each other quite well, though I will admit that the iPhone's emergence as a gaming platform may make them more of a competitor now than they have been in the past.

{"commentId":7978110,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

2 votes

#3.6 - Wed Jul 1, 2009 10:18 PM EDT

{"commentId":7978298,"authorDomain":"insert"}

insert_name_here

If Nintendo goes after Apple as part of their complaint, and they aim to settle, it won't be for a few grand, that's for sure. A half a day of lawyer fees would cost more than they'd get, and it's going to take a lot of half days to reach a settlement agreement.

I'm not sure it would. Apple probably just wants this to go away and Nintendo hasn't suffered much and hence doesn't much care. I would doubt that Nintendo would even bother naming Apple in the complaint; Nintendo's lawyer will probably call up Apple's lawyer, ask for a few grand (in the 10s or low 100s) to maintain their copyright and Apple will agree.

After all, the relative pittance that Nintendo could get from Apple wouldn't be worth the time or bad publicity. Nintendo's only real concern is with making an example of the actual author and with protecting their copyright/trademark from becoming genericized.

{"commentId":7978298,"threadId":"616853","contentId":"2986995","authorDomain":"insert"}

#3.7 - Wed Jul 1, 2009 10:34 PM EDT

{"commentId":7972372,"authorDomain":"spiffie"}

spiffie

A link from Gruber, too. That should be a nice reward in two months.

{"commentId":7972372,"threadId":"616853","contentId":"2986995","authorDomain":"spiffie"}

2 votes

#4 - Wed Jul 1, 2009 4:34 PM EDT

{"commentId":7972980,"authorDomain":"brianford"}

Yeah, he responded to my email last night, asking whether I was planning to write about the issue, offering to post about it in Twitter, but I was in bed by the time his response came through, and his link was posted before I had finished writing the article. (Which is good, because the update was also posted before I finished writing.)

Oh, cool. He updated his link to point to the article. (It initially pointed to my Newsvine column.)

{"commentId":7972980,"threadId":"616853","contentId":"2986995","authorDomain":"brianford"}

3 votes

#4.1 - Wed Jul 1, 2009 4:58 PM EDT

{"commentId":7978320,"authorDomain":"basseq"}

I'd be really interested just to see the kind of traffic that sends. Let us know how it's looking.

{"commentId":7978320,"threadId":"616853","contentId":"2986995","authorDomain":"basseq"}

3 votes

#4.2 - Wed Jul 1, 2009 10:35 PM EDT

{"commentId":7984309,"authorDomain":"brianford"}