When Apple lifted the original iPhone nondisclosure agreement in mid-2008, the company stated that it would still keep unreleased and beta versions of the SDK under NDA. Apple has retained this policy in light of the newly-available iPhone 3.0 SDK. Pre-release versions of the 3.0 SDK are considered Apple Confidential Information and subject to the confidentiality obligations that iPhone developers must agree to before they are permitted to download the latest software. That means you, as a developer, cannot disclose pre-release features other than public information disclosed directly by Apple, including the features it announced publicly at yesterday's press event.
This agreement is likely to remain in place until 3.0 is released to the public. And, like the previous NDA, it makes about as little sense. Yes, the agreement prevents most public discussion of the new iPhone features but it does nothing to protect Apple's intellectual property rights from being discovered by competitors. Anyone can walk off the street, download a copy, and take a look.
What the NDA does is provide a barrier to discourse: no how-to articles, no books, no public forums, no public code samples or open source development. You are limited to talking to other developers at Apple's forums in the special pre-release section. The forums are pleasant, but with Apple employees acting as moderators, they are hardly a hot spot for honest, forthright discussion.
Because of this, the NDA is almost as bad an idea on Apple's part this time around as it was last time. The only difference is that we can expect an end to the NDA upon the official 3.0 release this time and that Apple has at least provided the forums for developer-to-developer communication.
So is the NDA used with cause? Ars stealth legal advisor "WiFone" says Apple may be using it appropriately. He told Ars that one of the major requirements for patentability is that the invention has to be "new", that is, not part of the publicly accessible literature. Apple's NDA makes sure that the technology in the new SDK is not "public", so it still qualifies. He adds, "Of course, one can argue that NDA's on this scale, and without much checks and balances, is kind of abusing the system but Apple can not be blamed for that alone."
As a final note, please be aware that installing the 3.0 firmware on your iPhone looks like a one-way trip at first. According to Apple's release notes, installing 3.0 onto your device will permanently "lock" it into testing mode. You cannot then restore to earlier versions of the iPhone OS. The wording on this warning is far stronger than that used for previous beta firmware.
Website 24100.net would disagree with that wording. Developers have apparently downgraded a 1st generation iPhone to 2.0 and back to 3.0 without problem. (Ars has received independent confirmation of a successful 2.2.1 downgrade on an iPod touch 1st generation.) Apple does not say whether you can upgrade to a shipping, non-test version of the OS when it is released, although it seems likely. Remember that your testing iPhone UDID must be registered with an active developer account in order to activate the beta firmware.
Thanks everyone who wrote and IMed us about the new NDA
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