Is news subject to Apple's developers' agreement?

While bitterness continues over the implications of Sections 3.3.1 through 3.3.3 of Apple's recently modified Developers' Agreement (PDF available here, through the Electronic Frontier Foundation), there's lingering suspicion about the indeterminate boundaries pointed to by the long-standing Section 3.3.14, which now applies to iPad content as well as iPhone.

"Applications may be rejected if they contain content or materials of any kind (text, graphics, images, photographs, sounds, etc.) that in Apple's reasonable judgment may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory," the section reads.

On the surface, that may seem perfectly reasonable, especially given the example the company chose to employ appears to set a standard respecting what some might call "the norms of decency." But recent well-publicized rejections didn't appear to have much to do with decency at all, including one it made last December that recently came to light (and that more recently has been reversed): the Pulitzer Prize-winning cartoonist Mark Fiore's political cartoon app. In a letter to Fiore now made public, Apple cited section 3.3.14 as the basis for its decision, lumping caricatures of President Obama right in there with hardcore.

This while the makers of iFartMobile tout the creation of what it calls an "olfactic framework," bringing to mind various aromas through the precise cataloguing and reproduction of associated sounds.

The cloud of controversy this issue has created -- iFartMobile notwithstanding -- is that the public attention it creates is an ecosystem unto itself. Being rejected, or perhaps just reject-worthy, is maybe the best free attention that an app can receive, as evidenced by the mention the olfactory app received on ABC's Jimmy Kimmel Live last January.

In Germany, the daily news publisher Bild has been claiming censorship on the iPhone under 3.3.14. Citing unfair censorship of the news, Bild publisher Axel Springer issued a statement in February saying, "We consider Apple's behavior to be unfair, arbitrary, bad for business and dangerous for freedom of the press."

But as anyone in Germany who reads Bild knows, in addition to "the news," it also features topless models. That may or may not be "porn," though it may certainly classify as content that some folks don't want to see. Of course, they don't have to download the app, then.

That doesn't explain why Playboy's iPhone app was permitted. A quick check of the online edition of Bild this afternoon (we test content so you don't have to) suggests Playboy's content could actually be described as somewhat racier, and Bild's as very tame, as in "art museum."

Washington Post columnist Rob Pegoraro, in a Fast Forward column online now but dated next Sunday, listed some of the other arbitrary-sounding rejections that Apple has made for some apps and some content (though perhaps not others) under Section 3.3.14, including a text-only English-language translation of the Kama Sutra of Vatsyayana. That led Pegoraro to wonder for a moment -- never mind what Apple says explicitly, what do we think it says? Is there an understanding that Apple has the authority to remove the Washington Post's own iPhone app if, at some point, it objected to its content?

The Post's spokesperson told the Post's reporter, "This is our understanding."

I asked Pegoraro today for clarification -- certainly this doesn't mean the Post is worried that Apple can censor its content, does it? No, he told me, he does not believe that's a worry on the minds of Post management, and he's not worried about it either. "The history of the App Store shows that Apple's reviewers are at their inscrutable worst only when they think nobody's looking," Pegoraro told Betanews. "That said, I was glad to see that folks here realize the scope of the authority Apple's granted itself to regulate the software selection for its mobile devices."

A spokesperson for National Public Radio also told Pegoraro that it operates under a similar understanding with Apple, although it knows of no reason why Apple would want to censor NPR. These two admissions to Pegoraro led author Dan Gillmor to respond today in his Mediactive blog: "We now have confirmation from two of America's most respected news organizations -- the Post and NPR -- that they willingly participate in a distribution/access ecosystem where the company that owns it can remove their journalism from that system for any reason it chooses. I suspect that the spokeswomen for the Post and NPR have technically violated the terms of their companies' developers agreements with Apple even by saying that much. Which is, of course, part of the problem."