United States: Bargaining With The Little Green Robot: Understanding The Google Play Developer Distribution Agreement*

This blog entry, which focuses on the Google Play Developer Distribution Agreement, is the first of two articles geared at helping app developers understand the fine print of the agreements they are asked to enter into with the companies that distribute their products. Following later this year, the second installment will focus on the iOS Program Developer Program License Agreement.

While it came to market slightly after the iTunes App Store, the Google Play Store has definitely made up for lost time. The Google Play Store currently boasts over 1 million unique applications ("apps") available for download and over 50 billion installed apps. Android developers, including many video game developers, can access an impressive global distribution network for their mobile applications currently boasting over 1 billion activated Android devices. Access to this impressive distribution mechanism is not without its price, however. In the name of maintaining the quality of the Google Play Store and protecting its users, Google maintains significant control over uploaded apps through its Google Play Developer Distribution Agreement (the "Distribution Agreement"). With successful apps like SwiftKey having over 1 million paid downloads, however, many developers will view this as a small price to pay indeed.

This blog article examines the implications for developers of the control Google maintains over uploaded apps under the Distribution Agreement through terms and conditions such as user privacy, user support obligations, intellectual property licenses, and takedown requirements.

Privacy Obligations and Support Obligations

The Distribution Agreement requires developers to protect the privacy of users, support distributed apps, and permit unlimited reinstalls:

  • User Privacy. Developers must agree to protect the privacy and legal rights of Google Play users.1
  • Product Support. Developers must also agree to be solely responsible for supporting the products it uploads to Google Play. Further, Google makes a developer's contact information available to users for customer support purposes.
  • Unlimited Reinstalls. Developers must generally permit unlimited reinstalls of the same app by a given end-user.

A developer of a successful app should be prepared to support a potentially high volume of customer service needs of a sizable global user base, and provide specific support for direct user complaints and requests. In addition, as consumer privacy becomes a more complex area of regulatory oversight, developers should be conversant in the legal requirements applicable to consumer data and privacy protection issues.

Intellectual Property Licenses

The Distribution Agreement requires developers to license their intellectual property to end-users and to Google.

Between developers and end-users, the Developer Distribution Agreement grants end-users a default license to perform, display, and use an app. The default license is non-exclusive, worldwide, and perpetual. A developer can choose to supersede the default license with an individual end-user license agreement.

Between developers and Google, the Developer Distribution Agreement grants Google:

  • A non-exclusive and royalty-free license to distribute the app in Google Play and to display the app's Brand Features (e.g., tradenames, logos, domain names, and other brand features) in Google Play.
  • A non-exclusive, royalty-free, worldwide license to copy, perform, display and use the app in connection with Google Play operation and marketing, and Android improvements.
  • A license to use the app's Brand Features for marketing purposes in Google Play or any other Google property and in communications outside Google Play when mentioned along with other apps or when making announcements regarding the availability of the app, among other things.

Takedowns

The Distribution Agreement allows developers and Google to remove, or initiate "takedowns," of apps distributed through the Google Play Store.

The Distribution Agreement allows developers to initiate takedowns at any time. However, a developer-initiated takedown does not discharge the developer's obligations. Developers must still: allow refunds, honor licenses previously granted to customers, and support apps previously downloaded.

To actually remove an app from customers' devices, developers need to inform Google in writing that the takedown was due to alleged violation of intellectual property rights or applicable law. For developer-initiated takedowns of paid apps, the Distribution Agreement requires developers to provide a full refund (less payment processing fees) to all customers who downloaded the app within the last year.

The Distribution Agreement allows Google to initiate takedowns of apps and to bar developers for any reason and at Google's sole discretion.

The Distribution Agreement, however, specifies Google typically takes down an app only if, among other things, the app:

  1. violates a third party's intellectual property or other rights,
  2. violates applicable law,
  3. is pornographic or obscene,
  4. is distributed in violation of the Distribution Agreement or the distribution agreements of Google's authorized carriers or device manufacturers,
  5. creates liability for Google or its authorized carriers,
  6. contains a virus or malware, or
  7. impacts the integrity of Google's network.

In the event that Google takes down an app because of items 1, 2 or 5 above, the developer must refund all amounts received during the past year plus any associated fees. The refund is not paid to the customer, but rather is paid to Google.

Developers should be prepared for the financial burden relating to refunds to customers and Google in addition to the time and expense associated with managing the take down process for apps.

Miscellaneous Provisions

The Distribution Agreement has miscellaneous provisions relating to refunds and chargebacks, indemnification, the term and termination, amendments, and disputes that developers may want to know about. Developers should take note of these terms as many are unilaterally beneficial to Google.

  • Refunds and Chargebacks. The Distribution Agreement requires developers to accept full refunds within 48 hours of purchase of paid apps2, and limits available chargebacks3.

Indemnification. While the Distribution Agreement requires developers to indemnify Google, or not hold Google liable, for various acts, the Distribution Agreement does not provide similar hold harmless.

Implications of the Distribution Agreement

As discussed, the terms of the Distribution Agreement place significant burdens on developers relating to management of their customers, treatment of intellectual property and responsibilities in a takedown scenario. In addition, many of the general terms are unilaterally in Google's favor. Nevertheless, as Android devices continue to gain market share in the smartphone, smart tablet, laptop, and other spaces, and as applications such as video games continue to migrate from consoles to smartphones, it is clear Android application development will only increase over time.

If you are considering developing an app for Google Play you should speak with your attorney about how to structure that system to ensure compliance with these requirements and to take advantage of one of the fastest growing platforms on the planet.

Footnotes

* This article focuses on the Google Play Developer Distribution Agreement, an application distribution agreement for Android developers. A second article will focus on the iOS Program Developer Program License Agreement.

1 Developers must also make users aware of personal information being provided, and can only use personal information for stated purposes. In general, such information can only be used for the stated purpose (which cannot include selling or distributing products outside Google Play) and must be stored securely and only for so long as needed to accomplish such purpose.

2 For example, except where preview of an app is allowed (e.g. ringtones, wallpapers), the developer of a paid app must allow a full refund if requested by the buyer within 48 hours of purchase. Note that this time period is longer, however, than the 15 minute refund period advertised to Google Play end users. Additional refund provisions are also noted below.

3 Paid app developers should also note that payment processors can generally automatically charge back purchase prices of less than $10 in the event that a customer disputes its bill. (See Distribution Agreement, Section 3.5) Chargebacks of more than $10 are handled in accordance with the payment processor's standard policy. (See id.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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