Noting that Apple would be unlikely to pursue any action against individual developers, Methenitis says that Blizzard's recent legal win against MDY could give Apple a potent weapon against Adobe, if it chooses to make a claim.
Last year, Blizzard prevailed in its claim that that MDY Industries' Glider software, which allowed users to automate their play in Blizzard's World of Warcraft, violated Blizzard's End User License Agreement. The judge in the case ruled that MDY had illegally interfered with Blizzard's sales and negatively affected the company's relationship with its customers. MDY's appeal is pending before the Ninth District Circuit Court.
Methenitis says that ruling supports the principle that if you're inducing people to violate a user license agreement, that's legally actionable. If Apple really wanted to go to the mat with Adobe on this issue, he said, it could seek for some pretty hefty damages from the company, amounting to something like $100,000 per violation.
Fisher believes that would be a difficult argument to make. "I think Apple would have an uphill battle going against Adobe for distributing its Flash development kit," he said. "Adobe may not technically be doing anything wrong by distributing its own development kit to its users. ... For there to be contributory infringement, you have to show that there's a close relationship between Adobe and the user, an inducement and Adobe's knowledge."
It's the users, Fisher says, who would face potential legal jeopardy.
It's far from clear whether Apple would take such an aggressive stance against developers -- whom it needs and profits from -- or against Adobe and Flash.
On the other hand, Apple CEO Steve Jobs has not been conciliatory toward Adobe, having reportedly told employees in January that Adobe is lazy and Flash is buggy, a swipe that prompted Adobe's CTO Kevin Lynch to come to the defense of Flash.
What's more, Apple is not shy about taking decisive legal action, as can be seen in its recent patent lawsuit against HTC, in the company's decision to shut down Mac clone makers after Jobs regained the title of CEO in 1997, and in its more recent legal victory against clone maker Psystar.
Apple's interest may be simply in ensuring that developers use its Macintosh computers, at least at the final code-signing phase of app development. Thus, Adobe, if it's seeking to avoid a potential fight, may make the Flash Packager for iPhone fully functional only on Macs. It has certainly done the opposite, offering Mac software with less functionality that Windows versions.
Kirchhoff speculates that Adobe will deliver its CS5 line in June. An official release date has not been announced.