We've been pointing out for a while now how many app makers can easily route around Apple's draconian app store rules by embracing HTML 5 and offering their apps through alternative means. While there are still some features that HTML 5 can't do, it can handle an awful lot (and many "native" apps were really created in HTML 5 in the first place anyway. Still, it seems like Apple's draconian gatekeeper-ism, and the ridiculously high 30% fee for in-app purchases, means that some big companies are finally discovering the HTML 5 opportunity. We already noted that the Financial Times' app went HTML 5 to avoid Apple, and now Amazon has made a big splash by releasing its Kindle app as an HTML 5 web app rather than through Apple's app store. Hopefully such high profile names help drive more companies to realize they have more than a single option. And maybe, just maybe, it'll convince Apple to be just a smidge more open.

Apparently, Apple has recently decided to start trying to enforce its official "Guidelines for Third Party Promotions," meaning that they're telling people they can no longer offer contests and promotions where the prize is a "free iPad" or something of that nature. Specifically, the "guidelines" state:

• iPad, iPhone and the iPhone Gift Card may not be used in third-party promotions.
• iPod touch is only allowed to be used in special circumstances and requires a minimum purchase of 250 units.
• You may NOT use the Myriad Set font on or in connection with web sites, products, packaging, manuals, or promotional/advertising materials.
• The use of "free" as a modifier in any Apple product reference in a prominent manner (headlines, call- outs, etc.) is prohibited.
• You must submit all marketing materials related to the promotion of Apple products to Apple for review.

That all sounds lovingly dictatorial on the part of Apple, but I'm left scratching my head how the company thinks these guidelines are even remotely enforceable. If someone has legitimately bought one of these devices, I can't see under what legal basis Apple can claim that a giveaway promotion violates the law. Perhaps there's a weak trademark claim, but I can't see it holding up in most cases (there could be a few exceptions). But, really, what is Apple thinking here? People use its products in giveaways and contests because the product is desirable . Why fight that?

As a somewhat recent father, I've been thinking a lot lately about babies and technology -- and specifically the sorts of gadgets we carry around. Living in the age of smartphones, it's all too easy to simply reach for the phone while doing something with the baby, and in the back of my head I've wondered if that's such a good thing, and now try to put the phone away when I'm with the baby. It seems that some others are discovering new issues with kids and technology as well, with a short piece at Slate describing a father's confusion when his one-year old son started referring to any iPhone as "mama." The author, Eric Pape, says that he worries the kid actually thinks the phone is his mother -- nothing that he has regularly held the phone up to his son's ear when his wife calls, or shown the kid pictures of his mother that were taken on the iPhone. Of course, this seems like a bit of an overreaction. I doubt the kid thinks the phone is his mother, as it seems pretty likely that he just thinks iPhones are called "mama," due to association with the word and the phone. Kids are pretty resilient and good at figuring this stuff out, and it won't be long until he does figure out that his mother is called "mama" and a smartphone has an entirely different name. That said, I do still wonder how best to teach kids how to embrace technology without being consumed by technology... or if that's just something kids figure out on their own...

In all of the fuss, hype and obsession over the iPhone/iPad app store, people seem to forget that when the iPhone first launched, it had no app store and no ability for third party developers to create native apps. Instead, Steve Jobs suggested the high quality Safari browser on the iPhone meant the end of native apps, as everything could and should just be done in HTML. And yet, a year later, Steve Jobs totally changed his tune, the iPhone app store was launched, and suddenly this obsession with everything "apps" began. Of course, the media industry fell in love, because they thought that they could regain an element of control, thanks in part to Apple's incredibly arbitrary iron fist over what got into the store.

And yet... in all of that, it seems that many people forgot that original promise of apps all just being created in HTML. Indeed, if you look beneath the surface, you would realize that many iPhone apps really are just made in HTML and then compiled into being native iPhone apps. Using HTML alone, you can access many of the phone's features and certainly create all sorts of apps. But still, there has been general anger over Apple's mercurial gatekeeper activities. Back in January, we noted that Google had remembered the ability to create apps via HTML and had simply routed around the App Store. It made us wonder why others weren't doing it too.

While there have been a few "independent" app stores for the iPhone, they've all required jailbreaking the phone. And while that's now officially legal as per the Library of Congress, it's still not something your everyday iPhone user wants to do. So I've been somewhat fascinated by a new offering that's launching today called OpenAppMkt, which effectively creates a brand new app market for iPhones all via HTML (both the openappmkt app itself, and all the apps in it are HTML based). The experience is very much like the regular app store, with the small exception of having to tap the "add to home" button: While many of the initial offerings in the OpenAppMkt are free, it does let developers charge for their apps as well. Effectively, this is an entire "app market" for the iPhone that simply routes around Apple as a gatekeeper, and there's really not much that Apple can do to stop it. And, of course, since the apps in the OpenAppMkt are just HTML, it likely won't be difficult for OpenAppMkt to extend this to other platforms as well, such as Android (even though Android's much more open market means that there's less of a reason to developers to use OpenAppMkt for Android).

Overall, this fascinates me for two reasons. First, it's good to get more people realizing that HTML is already pretty damn good at creating app-style experiences, without having to create special compiled code and, second, it's a really clever way to totally route around Apple as a gatekeeper (without requiring a jailbreak), and is a reminder that even on "closed" systems, openness will often find a way.

We haven't really written about the whole Apple iPhone antenna thing because, really, who cares? As the NY Times pointed out, it's just a phone. It's a nice phone, by all accounts, and the antenna problems seem like they could be pretty annoying, but there wasn't much for us to comment on that wasn't already covered by a thousand other blogs. However, you know things have reached silly season when even our Congressional reps are getting involved. Senator Chuck Schumer, who can grandstand with the best of them, has decided that this antenna issue is an issue for Congress to be concerned about, and has penned a letter to Steve Jobs ("Dear Mr. Jobs,") to come forward and explain the issue. Of course, Schumer sent the letter after Apple had already scheduled its press conference for later this morning where it's expected that something (no one's quite sure what) will be resolved about the antenna. But, really, what role does Congress have in this at all? The story is getting plenty of attention from all over the place already. It's not like Congress can help shine a light on it. All this appears to be is Schumer stepping into a headline because it's a hot topic. Sometimes it makes you wonder if Congressional Reps & Senators now have their press people monitoring the Twitter trending topics for issues grandstand-worthy....

It looks like a class action lawsuit against Apple and AT&T for the way the two companies have conducted business around the iPhone is going to finally move forward. A judge in California is consolidating a few different such cases, covering two separate issues. The first questions whether or not the lock-in that required iPhone buyers to remain with AT&T for five years is legal, and the second questions the legality of the iPhone's app store, where Apple is the gatekeeper. To be honest, even as the consolidated case moves forward, I can't see either claim getting very far. Both seem to represent reasonable business decisions, and it's difficult to see an argument that Apple should have been forced to act otherwise.

So we see bizarre and ridiculous patent claims all the time, but this one really seems to go beyond any level of ridiculous, and I can't wait to see how patent system defenders explain this one. A company called NetAirus has sued Apple for patent infringement over a patent it applied for in 1999 and received in 2006 for a wireless handset communication system (patent 7,103,380) that is so broad and so generic, it's hard to see how it could possibly have been approved. Patents are supposed to be for specific implementations, not the idea, but if you read through the claims (there are just 14 of them), they seem to all cover very generic concepts that describe putting a mobile phone and a PDA on the same device -- a concept that was widely discussed in the mid-90s when everyone was using their PalmPilots, and wondering when they'd merge into mobile phones. It's really quite stunning that a patent so broad got approved. Please, patent system defenders, explain how the claims on this patent make sense.

In the meantime, though, this lawsuit really highlights the difference between an idea and execution. Having an idea and getting a patent is pretty meaningless if you don't actually build something. Apple built a product -- and not just the vague product described in the patent: they built something really impressive. Ideas mean little in the long run. Execution is everything. But when we allow companies to patent basic ideas and sue the companies that actually execute? You've set up a market that hinders true innovation.

The FTC and the DOJ are reportedly holding talks over which group will launch an antitrust inquiry into Apple's policies regarding app development for the iPhone and iPad. Apple recently made a change to the terms of its iPhone SDK, barring developers from using third-party development tools. Apple claims it did this to ensure that iPhone apps are of the highest quality, but the real reason appears to be to push developers to only develop for the iPhone, and not other rival platforms. The behavior may be as annoying as it is unsurprising, but it's hard to see how this warrants antitrust action and government intervention. Apple isn't restricting access to that market completely, they're just forcing developers to use certain tools in order to participate in it. While Apple is trying to throw its weight around for its own benefit, what its doing may not necessarily be illegal -- but that doesn't mean it's a good idea either. This policy seems likely to fail in the marketplace more quickly than any resolution through government intervention could take effect.

A consistent source of angst from mobile phone users are the costs they often must incur to replace devices that get broken or damaged. Thanks to the subsidies mobile operators pay on handsets, they typically don't like to replace phones for free, asking users to pay up or renew their contracts. One key part of operators' arsenal in determining if damage has been caused by the user are liquid sensors. These little round stickers often reside under a phone's battery, and typically turn from white to some shade of red when they've been exposed to liquid. So if you've dropped your phone in a puddle and it stops working, the liquid sensor probably won't back up your story that your phone just all of a sudden stopped working. The iPhone is no different in this regard, but a San Francisco woman has sued Apple, alleging that the iPhone's sensors generate false positives, letting Apple skip out on warranty obligations. The woman alleges she's had to replace her iPhone at her own expense twice, after the sensors showed her device had been exposed to water, even though it had not. For what it's worth, Apple says the sensors work just fine. This case may seem pretty pointless, but should the woman prevail, it could set a powerful precedent for all types of phones sold by carriers here in the US, and impact how they carry out their warranty replacement and service plans.

There's something anti-competitive afoot in the 'VoIP over 3G' space this year. Let me run you through a timeline, and see if you can't spot the dirty pool:

0. Skype has had a highly functional VoIP client for Windows Mobile devices for a few years. It allowed smartphone customers to use most features of Skype over WiFi OR a carrier's cellular data network. It was distributed around the carriers direct to customers of Skype, and was designed for those customers' benefit.
1. March 2009: Skype on iPhone is launched, but is unable to do VoIP over the 3G data channel because AT&T and Apple blocked that functionality. Skype, Google, the FCC, and consumers cried "foul" at AT&T and Apple.
2. Oct. 2009: After considerable FCC and consumer pressure, AT&T relents, and allows VoIP over 3G (and was even publicly applauded by Skype's CEO Josh Silverman). Skype users, naturally, expect an updated Skype version that will leverage 3G data.
3. Jan 16, 2010: Skype releases a new iPhone version which DOESN'T take advantage of the new leeway AT&T (and ostensibly Apple) allow for VoIP over 3G. Skype points fingers, mostly back at Apple.
4. Jan 27, 2010: Apple removes any 3G VoIP restrictions. Now there is nothing holding Skype from doing VoIP over 3G on iPhone.
5. Mid Feb, 2010: At MWC in Barcelona, Verizon and Skype announce a special version of the Skype app that will run on Verizon. While most press outlets rejoice at the "openness" Verizon wireless is finally showing,  it turns out to be a limited, crippled version, which is designed to fit Verizon's agenda, NOT customer wishes. This version can use the 3G data network, but just for chat and 'control', not for voice. It requires a >$10/mo data plan, is not available for phones with Wi-Fi, and 'Skype out' cannot be used to make domestic phone calls. In this deal, it appears that VZW paid Skype for some exclusivity in the USA.
6. Mid-Feb, 2010: Also at MWC, Skype CEO Silverman tells Om Malik that we can expect 3G VoIP on iPhone "Very soon", with no firm commitment.
7. Feb. 26, 2010: Skype completely pulls it's very functional Windows Mobile apps with little explanation, and no suggestion of when they might return. The app, which works fine, just goes away. Why pull the most functional Skype mobile app and leave only crippled versions?

Looking at the timeline above, it's pretty easy to guess what's going on here. Skype has been negotiating with Verizon Wireless for some exclusive deal in the USA. But unlike the relatively good, open Skype deal enjoyed by Hutch "3" subscribers in the UK, the Verizon version is crippled with confusing limitations, complications, conditions. It's clear the Verizon goal is to use Skype to upsell data plans to users who don't yet have one, and to drive or retain Minutes of Use of cellular voice traffic. Skype just sold its US mobile users down the river! Skype still promotes "Skype Mobile" on its US web pages, but if you click on any OS like Android or Blackberry, you'll see the bold headline "Coming Soon: Skype on America's most reliable wireless network." And are basically told to wait for the exclusive product.

The only reason Skype offered for retracting the WinMo app is "because we want to offer our new customers an improved mobile experience – much like the version that has proved so popular on the iPhone..." Wait...Is that the same version that annoyed users because it couldn't do VoIP on 3G? And how does killing a product with no replacement offer an "improved mobile experience"? Seems like more of an absent mobile experience.

Going forward, this also could position Skype well for offering a premium paid version of a fully functional app at a future date, when exclusive deals expire. A freemium model would be less unsavory than the exclusive/crippled structure that we apparently have for now. At least with freemium, the free market can choose to pay or not from any given carrier. With the exclusive/crippled structure, customers have little choice - except the choice to use another VoIP provider who is focused on giving end users what they want.

The result of this exclusive deal is, essentially, to deprive an entire country of the value of a good VoIP service (Skype) on mobile phones, and instead to offer us a crippled version that is designed not to delight any user, but to delight a carrier. How ironic, then, that Skype's Silverman has been at the forefront of the push for more "open" networks:

"Nonetheless, the positive actions of one company are no substitute for a government policy that protects openness and benefits consumers. We're all looking forward to further developments that will let people use Skype on any device, on any network."

or when he said this from a September lobby trip to DC:

 "We have witnessed certain broadband providers unilaterally block access to phone calls delivered over data networks and implement technical measures that degrade the performance of peer-to-peer software distributing lawful content. And as many members of the Internet community and key congressional leaders have noted, there are compelling reasons to be concerned about the future of openness."

Compelling reasons, indeed. It seems that in this case, AT&T actually followed through with their promises to be more "open" while Skype and Verizon have just painted a big "open" sign on the gates of the walled garden. Enter at your own risk.