In the mobile phone hardware duopoly, if you choose not to play you simply aren't playing.
That's a large ecosystem of hardware to deny oneself access to these days. It'd be like not writing apps for the IBM PC in the '80s because you don't trust IBM's business practices.
This is a chapter in the "copyright law is broken" saga. Google would expose itself to legal risks if it were to intervene. The only way to lift the DMCA mark is to let the issue go to court (and I doubt anyone in this position has the money for that).
The shitty copyright troll who filed the DMCA takedown is the real bad guy in this story.
I would say: file a claim with the FTC against Google, Instagram and the “complainant” for anti-competitive behaviour, and when those 3 come begging to dismiss it say they need to take it up with the FTC as it’s now in their court (similar to how Google is passing the buck to deal with the “complainant” directly to get Google to restore the app).
The app can definitely still exist and even be vended on other stores, such as F-Droid.
This smells similar to the Fortnite / Apple dustup, and the end result of that wasn't that Apple was forced to re-list Fortnite in their App Store; it was that [edit: my mistake; misremembered] Apple was barred from retaliating against Epic but the only way to play Fortnite (legally) on Apple hardware now is through Microsoft's cloud service.
I don't know what legal precedent would force Google to list an app in their (obviously large and market-dominant) private store that they wholly own.
Unlike copyright, there is no safe harbor for hosting trademark-infringing content, so what that would accomplish is a potential lawsuit against F-Droid alongside the developer.
DMCA would protect google from this, if the company appdetex (for instagram) files a valid DMCA take down request, google has to comply, and the appeals process can get it reinstated. But the DMCA request has to be honored first.
I've always felt it was a shitty policy, it has been exploited countless, even more so in time sensitive situations. But that is the requirement as it stands now and no company is going to challenge it as a failure in attempt is far more harmful to them, than taking down someone else problematic content.
Isn’t the DMCA only for copyright infringement [1]?
> The DMCA safe harbor provisions only apply to claims of copyright infringement. Therefore, they do not provide any protection against trademark claims, whether for trademark infringement, trademark dilution, or cybersquatting.
If the FTC has the authority I’d love to see them bring the hammer down on big tech for stuff like this. A $100 million fine for destroying someone’s small business would be fine by me.
The problem if the dmca claim form is valid is the standard for take down, the court determines whose copyright claim is valid, not Google. And though they could argue the point, why argue a point that would have a detrimental effect for being wrong, and very little positive for being right?
But yes, I think the Dmca system is flawed greatly without a serious punishment for those who abuse it.
This is a trademark infringement complaint, not a DMCA takedown notice. There is no safe harbor for Google here, thus no counter-notice procedure, and no incentive for Google to be named themselves in a trademark infringement suit.
Dunno, the branding does seem a little too close to Instagram... Literally using their colours in a similar gradient, using their name in your app name, etc...
> Avoid representing the Instagram brand in a way that:
> 1. Implies partnership, sponsorship or endorsement.
> 2. Makes the Instagram brand the most distinctive or prominent feature.
Pretty clearly seems to do #2... Kind of does #1. The Instagram assets are meant for pointing to Instagram, not ripping off for your own branding as well...
Did you not read 4 lines below that on how you should indicate that your app does in fact use Instagram APIs?
> If you offer an app, website or a product or service that uses the Instagram APIs or is otherwise compatible with or related to Instagram, you may only use Instagram to say that your app is "for Instagram" or that the name of your campaign is "on Instagram" in a descriptive manner.
If the name of the app is "InPlan - Planner for Instagram" and the "for Instagram" is dictated by the Instagram rules, how exactly would you propose they modify that? If you want to dispute the logo, look at the changed logo they used. It does not infringe the Instagram logo at all.
> Did you not read 4 lines below that on how you should indicate that your app does in fact use Instagram APIs?
Read the rules in their entirety. Simply calling the app "X for Instagram" doesn't absolve them for the other rules they obviously broke...
Like using a gradient and rounded rectangles together while calling it "InPlan" is so blatantly trying to associate their brand with Instagram's it's hilarious they think it's ok simply because they added "for Instagram" at the end.
Edit - their new logo is so derivative it's still a blatant ripoff, all they did was tone down the yellow and purple lol...
Point is, that's not Google or Instagram's lawyer, just some random "trademark lawyer" who's not part of the dispute at hand.
Anyway, OP's argument doesn't resonate with me. The app store isn't a common carrier. Google doesn't need "valid legal reasons" to reject an app other than what is stated in their own terms. And just because Meta says it's okay to use "for Instagram" doesn't mean that Google is compelled to accept that reasoning. Thousands of different trademarked companies use Google Play. Does OP think Google going to have a different individualized policy for each company?
Here's what Google responded to OP, in part:
> The app also infringes Instagram’s rights in the registered INSTAGRAM mark by using “for Instagram” in the app branding without any other branding that is distinctive to the app. Such use is likely to create confusion by implying an association or other relationship with, or authorization by, Instagram when no such relationship or authorization exists.
The name of the app is
InPlan - Planner for Instagram
To me, that very much sounds like it's an app named InPlan put out by Instagram itself, and could be confusing. I agree with Google rejecting this title. Maybe if it was "InPlan - Unofficial Planner for Instagram" or "InPlan Planner (for use with Instagram)"
Plus, I question OP's interpretation of Instagram's policy. They quote Instagram's policy as stating:
> If you offer an app, website or a product or service that uses the Instagram APIs or is otherwise compatible with or related to Instagram, you may only use Instagram to say that your app is "for Instagram" or that the name of your campaign is "on Instagram" in a descriptive manner.
"In a descriptive manner" to me implies that "for Instagram" may be used in the description of the app, not the title of the app. I'm no lawyer, if the trademark attorney says it's okay, then it probably is, from a trademark perspective. But maybe not from the perspective of Google wanting the Play Store to clearly differentiate first-class brands from third party applications.
As far as I can see he didn’t retain a lawyer. He just had a consultation at best. That’s essentially meaningless. If you’ve ever worked with lawyers before, a consultation just gives you an overview of how the law works in the area you need help.
Unless you actually hire a lawyer, they aren’t going to look at the details of the case, and are just going to offer opinions on what you tell them.
Nothing was “confirmed by a lawyer” in any meaningful way.
FTA: Google Play team has responded to my appeal saying that they will not be reinstating the app and that I should address the complainant directly and resolve it with them, the complainant should allow Google Play team to reinstantiate the app.
I know it sucks, but I understand that decision completely. The DMCA was specifically created to safeguard web sites against copyright claims against content posted by users. If Google ignores a DMCA takedown, they become a party in a copyright infringement claim that’s, so far, is purely a case between Instagram (via the company they hired) and you.
“DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent (a "notice and takedown" process). OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.”
Google has a legal requirement to forward the DMCA claim. The recipient is allowed to counter claim at which point Google has done their job and is no longer liable, it goes to the courts.
This is Google choosing to execute a takedown, which funny enough does expose them to some risk.
Google doesn't have a legal requirement to allow the app to exist in its market place.
Google does have a legal requirement to comply in good faith to DMCA and copyright claims.
It is really simple from a legal standpoint for google, which path to take. what "risk" are they exposing themselves too by not allowing this app again?
> OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.
Yeah no doubt there are countless things that can be done, but all are initiated by the app dev, and none will probably compel Google do anything without a legal determination that the app isn't infringing.
This system like in most cases is stacked against the little guy, he has an avenue but it's a long and possibly costly one.
Google only must comply with a non-contested DMCA notice. The moment it is contested, Google is done and has done their job. They are not the copyright arbiters - that would be the job of the court.
By executing a takedown, Google is not acting under the DMCA. They are executing a takedown of an app that may or may not be infringing. They can absolutely be sued or taken to arbitration (ToS withstanding) with no DMCA protection.
If you read it, this case appears to have nothing to do with the DMCA. It's about trademarks. DMCA is not mentioned outside the title, possibly confusion by the OP.
Build a Progressive Web App and put it on Google Play Store (https://developers.google.com/codelabs/pwa-in-play#0). In case of suspension you'll at least will have a working fallback for your current customers.
An app name like "[thing] for [popular service]" will most probably receive a complaint, usually not from the popular service itself but from other external company whose whole job is to search for popular apps with this pattern and if they succeed they can later ask the real company for compensation, which wasn't aware at all until then. The real issue is that having such a name is a real boost in downloads.
This is why a lot of apps have migrated to a "for IG", "for G", "for WA" in the name, which have less boost but still in the grey area.
I guess your can make a profit by creating a new account, create a useless app with ads, publish with one of these names, wait until it is rejected, then claim the revenue.
The brand guidelines specifically allows "for Instagram" though, and funny enough also specifically disallows abbreviating "Instagram".
The real issue is that you're not talking to Instagram or people who represent Instagram's interests; you're talking to Google which is looking after Google's interests by being excessively cautious in favour of takedowns to avoid expensive lawsuits and/or additional legislation, and you're talking to some external "brand protection" agency whose interest it is to take down as much as it can to justify its fee.
And through these intermediaries neither of whom actually have a stake in the matter, both parties who do have a stake (Instagram and the app developer) both suffer.
Is there any reason that needs to be more legally valid than "Google suspended it?"
It's their store and their rules; there's no contract law overriding that basic premise that I'm aware of. "We let ourselves be lied to and are disinclined to correct our error" is exactly as valid a legal reason as others because Google is the sole arbiter of the enforcement of their own store TOS.
Perhaps this should be changed, but there isn't really much legal groundwork on what that change would look like.
Yeah, it seems that the HN crowd couldn't get it that a) the safe harbor provision is strict about it (it only says that the legal request is correctly-formed, not that it is sane or even to be true*) and b) legally Google is also in a bad predicament.
* Even if the complaint is patently false, precedent shows that the court decides on that matter. Even after Lenz vs Universal, it only asks for complainants to consider if the use is legal, it didn't really create safeguards that the OSPs can use to disregard a DMCA request.
If they are so convinced the claim is invalid and the claimant used the DMCA process, all this company has to do is file a counter notice and Google is obliged to restore the app, unless the claimant actually files suit within 14 days.
One thing that can help on these situations is to use the fact that these external companies (the one making the claim) have little to no interest in any conversation (even though in this case it appears they did reply, but with a generic template email).
You can send them an email saying that you made X change and giving them 7 days to review it, and then adding that "if they don't reply you will consider it solved". They will probably never reply (if they do you can try again or go to other methods) and so you now have the "ok" (by default) which you can send google, and since you have something to show (remember to send a copy of every email) they will probably revert it. After all you made a change, talked to the offending company, and didn't get a rejection. This is enough for google.
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[ 4.8 ms ] story [ 102 ms ] threadThat's a large ecosystem of hardware to deny oneself access to these days. It'd be like not writing apps for the IBM PC in the '80s because you don't trust IBM's business practices.
The shitty copyright troll who filed the DMCA takedown is the real bad guy in this story.
This smells similar to the Fortnite / Apple dustup, and the end result of that wasn't that Apple was forced to re-list Fortnite in their App Store; it was that [edit: my mistake; misremembered] Apple was barred from retaliating against Epic but the only way to play Fortnite (legally) on Apple hardware now is through Microsoft's cloud service.
I don't know what legal precedent would force Google to list an app in their (obviously large and market-dominant) private store that they wholly own.
I've always felt it was a shitty policy, it has been exploited countless, even more so in time sensitive situations. But that is the requirement as it stands now and no company is going to challenge it as a failure in attempt is far more harmful to them, than taking down someone else problematic content.
> The DMCA safe harbor provisions only apply to claims of copyright infringement. Therefore, they do not provide any protection against trademark claims, whether for trademark infringement, trademark dilution, or cybersquatting.
If the FTC has the authority I’d love to see them bring the hammer down on big tech for stuff like this. A $100 million fine for destroying someone’s small business would be fine by me.
1. https://www.dmlp.org/legal-guide/trademark-user-generated-co...
But yes, I think the Dmca system is flawed greatly without a serious punishment for those who abuse it.
> Avoid representing the Instagram brand in a way that:
> 1. Implies partnership, sponsorship or endorsement.
> 2. Makes the Instagram brand the most distinctive or prominent feature.
Pretty clearly seems to do #2... Kind of does #1. The Instagram assets are meant for pointing to Instagram, not ripping off for your own branding as well...
> If you offer an app, website or a product or service that uses the Instagram APIs or is otherwise compatible with or related to Instagram, you may only use Instagram to say that your app is "for Instagram" or that the name of your campaign is "on Instagram" in a descriptive manner.
If the name of the app is "InPlan - Planner for Instagram" and the "for Instagram" is dictated by the Instagram rules, how exactly would you propose they modify that? If you want to dispute the logo, look at the changed logo they used. It does not infringe the Instagram logo at all.
Read the rules in their entirety. Simply calling the app "X for Instagram" doesn't absolve them for the other rules they obviously broke...
Like using a gradient and rounded rectangles together while calling it "InPlan" is so blatantly trying to associate their brand with Instagram's it's hilarious they think it's ok simply because they added "for Instagram" at the end.
Edit - their new logo is so derivative it's still a blatant ripoff, all they did was tone down the yellow and purple lol...
Anyway, OP's argument doesn't resonate with me. The app store isn't a common carrier. Google doesn't need "valid legal reasons" to reject an app other than what is stated in their own terms. And just because Meta says it's okay to use "for Instagram" doesn't mean that Google is compelled to accept that reasoning. Thousands of different trademarked companies use Google Play. Does OP think Google going to have a different individualized policy for each company?
Here's what Google responded to OP, in part:
> The app also infringes Instagram’s rights in the registered INSTAGRAM mark by using “for Instagram” in the app branding without any other branding that is distinctive to the app. Such use is likely to create confusion by implying an association or other relationship with, or authorization by, Instagram when no such relationship or authorization exists.
The name of the app is
InPlan - Planner for Instagram
To me, that very much sounds like it's an app named InPlan put out by Instagram itself, and could be confusing. I agree with Google rejecting this title. Maybe if it was "InPlan - Unofficial Planner for Instagram" or "InPlan Planner (for use with Instagram)"
Plus, I question OP's interpretation of Instagram's policy. They quote Instagram's policy as stating:
> If you offer an app, website or a product or service that uses the Instagram APIs or is otherwise compatible with or related to Instagram, you may only use Instagram to say that your app is "for Instagram" or that the name of your campaign is "on Instagram" in a descriptive manner.
"In a descriptive manner" to me implies that "for Instagram" may be used in the description of the app, not the title of the app. I'm no lawyer, if the trademark attorney says it's okay, then it probably is, from a trademark perspective. But maybe not from the perspective of Google wanting the Play Store to clearly differentiate first-class brands from third party applications.
As far as I can see he didn’t retain a lawyer. He just had a consultation at best. That’s essentially meaningless. If you’ve ever worked with lawyers before, a consultation just gives you an overview of how the law works in the area you need help.
Unless you actually hire a lawyer, they aren’t going to look at the details of the case, and are just going to offer opinions on what you tell them.
Nothing was “confirmed by a lawyer” in any meaningful way.
You seem to be confused about who you are replying to.
I know it sucks, but I understand that decision completely. The DMCA was specifically created to safeguard web sites against copyright claims against content posted by users. If Google ignores a DMCA takedown, they become a party in a copyright infringement claim that’s, so far, is purely a case between Instagram (via the company they hired) and you.
https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A...:
“DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent (a "notice and takedown" process). OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.”
Google has a legal requirement to forward the DMCA claim. The recipient is allowed to counter claim at which point Google has done their job and is no longer liable, it goes to the courts.
This is Google choosing to execute a takedown, which funny enough does expose them to some risk.
Google does have a legal requirement to comply in good faith to DMCA and copyright claims.
It is really simple from a legal standpoint for google, which path to take. what "risk" are they exposing themselves too by not allowing this app again?
DMCA Counter Claim
https://www.dmca.com/FAQ/What-is-a-DMCA-Counterclaim
This system like in most cases is stacked against the little guy, he has an avenue but it's a long and possibly costly one.
By executing a takedown, Google is not acting under the DMCA. They are executing a takedown of an app that may or may not be infringing. They can absolutely be sued or taken to arbitration (ToS withstanding) with no DMCA protection.
As if they needed one. They can do it with no reason at all. That's the nature of walled gardens.
And don't forget, if you are a business in EU, you can ask for mediation: https://support.google.com/merchants/answer/9969397?hl=en
This is why a lot of apps have migrated to a "for IG", "for G", "for WA" in the name, which have less boost but still in the grey area.
I guess your can make a profit by creating a new account, create a useless app with ads, publish with one of these names, wait until it is rejected, then claim the revenue.
The real issue is that you're not talking to Instagram or people who represent Instagram's interests; you're talking to Google which is looking after Google's interests by being excessively cautious in favour of takedowns to avoid expensive lawsuits and/or additional legislation, and you're talking to some external "brand protection" agency whose interest it is to take down as much as it can to justify its fee.
And through these intermediaries neither of whom actually have a stake in the matter, both parties who do have a stake (Instagram and the app developer) both suffer.
It's their store and their rules; there's no contract law overriding that basic premise that I'm aware of. "We let ourselves be lied to and are disinclined to correct our error" is exactly as valid a legal reason as others because Google is the sole arbiter of the enforcement of their own store TOS.
Perhaps this should be changed, but there isn't really much legal groundwork on what that change would look like.
* Even if the complaint is patently false, precedent shows that the court decides on that matter. Even after Lenz vs Universal, it only asks for complainants to consider if the use is legal, it didn't really create safeguards that the OSPs can use to disregard a DMCA request.