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The consumers are bringing the fight to Apple Inc.

Cupertino-based Apple Inc. has been busy writing firmware to lock the iPhones and iPod Touches from third party applications and unlocking. Now after trying to put out one literal iFire, as predicted in a previous DailyTech article, Apple Inc. has found itself the target of not one, but two separate lawsuits seeking class action status.

Apparently Apple's answer to owners of frozen iPhones that they should “buy a new phone” did not go over well. 

One lawsuit was filed at the state level by Saratoga attorney Damian Fernandez, who is representing California resident Timothy Smith.

The federal suit was filed by the offices of Hoffman & Lazear in Oakland and Folkenflik & McGerity in New York, on behalf of two individuals Paul Holman and Lucy Rivello; both iPhone owners.

The federal case accuses Apple of unfair business practices, violations of antitrust laws, violations of telecommunications laws and violations of warranty laws.  It states that by disallowing user modification of phones to work on other networks, Apple and AT&T willfully and knowingly intended from the initiation of their partnership to maintain a monopoly.

The suit further points to Apple's actions with its latest firmware update which unlawfully restrict consumer choice by preventing people from "unlocking" their iPhones, locking out third party applications from its file system and disabling unlocked iPhones turning them into "iBricks."

The suit officially stated that it did not know how large the effective class would be, but filed it under 100 or more.  The firms are predicting big though -- they stated that they think the "there will be millions" who will join the class action.

Part of the dilemma is in knowing how many unlocked iPhones there are.  Hundreds of thousands of copies of the unlocking software have been sold or downloaded.  Adding in the numbers of people who performed hardware hacks and the number of unlocked iPhone owners may be 100,000 or more.  This would be significant portion of the iPhone population, which currently numbers around 1.3 million.

The civil suit accused Apple and AT&T of similar violations, only on a state level in California.  It says Apple and AT&T willfully violated many state laws in engaging in its monopolistic and malicious behavior.

Damian Fernadez, the attorney who filed the state suit explains in court documents what Apple is accused of:

Apple punished consumers for exercising their rights to unlock their iPhones.  Apple issued a software update that 'bricked' or otherwise caused iPhone malfunctions for consumers who unlocked their phones and installed the update.  Apple's unlawful trust with AT&T substantially lessens competition and tends to create a monopoly in trade and commerce throughout the entire United States.

The suit demands a jury trial.  It asks the court to issue an order to Apple to unlock iPhones and support hacked iPhones.  Finally, it is seeking unspecified monetary damages.

Apple spokeswoman Susan Lundgren and AT&T spokesman Mark Siegel both declined to speak to the media, despite request on Wednesday.

Apple CEO Steve Jobs has in the past compared Apple's war against unlockers to a game of cat and mouse.  His comparison now seems to border on comedy as it appears that after being battered and hunted, the "mouse" has turned and is now attacking "the cat."

When Apple Inc. and AT&T's actions drew the companies into the spotlight, it seemed inevitable that a class action suit would be on the way.  Now as user anger has erupted at Apple and AT&T, they face not one but two class actions suits.  Likely more damaging than any possible outcome will be the negative light that the coverage of these cases will cast on both companies.  Apple Inc., which regained leadership as a mainstream tech firm by portraying an rebellious outsider image, will now have to face unpleasant comparisons to its corporate rivals, whom it once poked fun at.

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Unlocking...
By Fenixgoon on 10/11/2007 9:38:10 AM , Rating: 2
I thought there was a provision in the DMCA(?) that *required* wireless providers to allow unlocking of phones.

Also, if this suit were to win on the grounds of monopolistic practices, would that have any precedent for the way apple runs itunes? not that i use itunes (hasn't been any good music to buy, and i'll take mine drm-free)




RE: Unlocking...
By Etsp on 10/11/2007 9:44:09 AM , Rating: 4
I think that apple has really made two legal mistakes. First, I do believe that the DMCA does have such a provision.

Second, voiding the warranty on the hacked phones whose modifications are completely software and as such, completely reversible.

Third, The other class action lawsuit for "discrimination against early adopters" by lowering the price is hopefully not going to gain much ground.


RE: Unlocking...
By omnicronx on 10/11/07, Rating: 0
RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 11:14:37 AM , Rating: 3
quote:
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

http://www.copyright.gov/1201/


RE: Unlocking...
By slashbinslashbash on 10/11/2007 1:04:30 PM , Rating: 5
You're totally missing the point of the DMCA exemption for wireless networks. The DMCA has nothing to do with manufacturers, it has to do with hackers.

The DMCA generally says "You cannot hack software in such a way that you are breaking copyright." E.g. if you hack iTunes in such a way as to break the Digital Rights Management on iTunes-purchased songs, you can be prosecuted under the DMCA. There are even printer manufacturers going after generic cartridge makers saying that the DMCA keeps them from backwards engineering the cartridges to work with their printers (i.e. that somehow the printer cartridge design and/or printer firmware interface is "copyrighted" and to make a working copy of it would be illegal). If you hacked the iPhone in order to break the music DRM, then you would be breaking the law (DMCA) and could be prosecuted.

The DMCA wireless network exception allows you to hack a phone's firmware in order to allow it to work on other networks. So, if you do so, you will not be breaking the law. If you attempt any OTHER hacks, you will be breaking the law. The exemption does NOT state that phone manufacturers must make their phones "hackable" or help this process in any way. It simply states that if you hack your phone in order to let it access other networks, you are not breaking the law. If you hack the iPhone for ANY other purpose such as running other software (the exception states "sole purpose of lawfully connecting to a wireless telephone communication network", emphasis mine) you could be found guilty of breaking the law (DMCA).


RE: Unlocking...
By Nodrog on 10/11/2007 1:15:38 PM , Rating: 1
Amen to that. People are forgetting to separate 'firmware hacks to unlock the phone' and 'software hacks to load third party software', in which the latter is a violation of the Software License Agreement, which voids a waranty (just as the Apple press release stated...you know, the one that has been misquoted in every blog it appeared in).


RE: Unlocking...
By othercents on 10/11/2007 1:34:48 PM , Rating: 3
While a user is allowed to hack their phone to unlock it, is there anything that says that carriers can't relock the phone to a specific carrier? Hopefully this update doesn't make it impossible to unlock just harder.

The monopolistic behavior in my view has more to do with locking devices to iTunes and not allowing other software to be used. Monopoly is a much more vague and depends on intent.

Other


RE: Unlocking...
By jjmcubed on 10/11/2007 5:13:20 PM , Rating: 4
In the past I worked for AT&T and for the record my wife still does on the land line side.

You have the right to unlock your headset if it was purchased by you at full price and not subsidized by the cell phone provider. Now I'm not an expert, but I believe that all iPhones were sold at full price. That doesn't include buy one get three free or anything along that line(not talking about iPhones).

If you received it for a discount or free then it is locked by the company for a certain length of time(i don't recall how long, but it might be the length of the service agreement or forever.) The only contact the subscriber phone has with the network is with the SIM card. Replace the SIM on an unlocked phone and it can't be locked again(unless your stupid enough to install an update from the company, then the tricky stuff comes).


RE: Unlocking...
By mcnabney on 10/14/2007 1:17:07 AM , Rating: 2
Actually, even if you are under contract you can legally hack your phone and use it on another carrier. You are still under contract, but what you do with your phone is your own business.


RE: Unlocking...
By Oregonian2 on 10/11/2007 1:47:19 PM , Rating: 2
Yes, the huge mass of comments here are mostly all focused upon the legality of unlocking. This is a diversion that's completely wasted in my opinion.

AFAIK the iBrick Touch is a more focussed topic. No matter what some lawsuit does or does not do regarding locking issues, the result is identically the same when the iPhone is thought of as an enhanced iPod touch, and the touch is made into an iBrick as well (which I understand it has been). You still have an iBrick even if Apple helps and makes all iPhones unlocked (when third party apps are added).

Problem is just Apple's attitude. For the iPhone and Touch they should just have a reload-software-to-factory service for $100 (or yourself for free) and leave it at that. My old 60G 5G iPod had to have firmware reloaded a couple times because it had turned into an iBrick as well( on its own accord) , but iTunes allowed me to reload it from scratch (running from it's bootloader I think). Apple currently may be within their right, but much like a six year old throwing a legal tantrum.


RE: Unlocking...
By aGreenAgent on 10/11/2007 1:04:04 PM , Rating: 2
That's different, CDMA phones can't connect to GSM network because CDMA is a completely different technology from GSM (and requires no SIM card), and you'd have to re-do the hardware to connect to GSM.


RE: Unlocking...
By omnicronx on 10/11/2007 1:12:25 PM , Rating: 2
Why you would think the DCMA would only cover phones on GSM networks is beyond me. The DCMA applies to all phone makers, regardless of what network is going to be used. All i was getting at is the provision listed does not mean that phone makers must give the ability to the consumer to unlock their phone as many CDMA phones can not be unlocked, which would make most CDMA phones illegal.. according to the DCMA.
It could be true, but my logic tells me we are misinterpreting the rule.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 1:48:15 PM , Rating: 4
Don't confuse Logic with Legal. The two have nothing in common.


RE: Unlocking...
By nitrous9200 on 10/11/2007 4:03:52 PM , Rating: 2
Can't you just reflash the firmware, as with the Verizon RAZR and the Alltel firmware, and bring it to an alltel store and have them set it up? That seems like it could happen, though distributing the phone software might be illegal. I have a feeling there will be many different laws conflicting with each other on this case.


RE: Unlocking...
By FITCamaro on 10/11/2007 4:31:50 PM , Rating: 1
What don't you get. A Verizon Razor is not the same as a Cingular one. It's a different set of hardware for the transmitter/receiver. Flashing the firmware won't change that.


RE: Unlocking...
By Omega215D on 10/11/2007 4:59:35 PM , Rating: 2
Read carefully. The person above you said Alltel which is a CDMA based carrier, not Cingular/ATT. This has been done for a while now since Verizon locks down their Razrs with their own software and using the Alltel version gives you what Motorola had originally intended to be on the phone.


RE: Unlocking...
By Alexstarfire on 10/11/07, Rating: 0
RE: Unlocking...
By Etsp on 10/11/2007 10:45:42 AM , Rating: 2
It's not the fact that the update bricked phones...unsupported modifications can do that with updates...it's the fact that Apple's warranty is broken by utilizing a software only hack, which is illegal.


RE: Unlocking...
By Alexstarfire on 10/11/07, Rating: 0
RE: Unlocking...
By omnicronx on 10/11/2007 11:14:06 AM , Rating: 2
Both of your examples would mean changes in the hardware. modchips physically alter the console, thus not in the software, and not only that, opening the box in the fist place does void your warranty. Technically since these hacks are software based, a full firmware update should just replace the previous software, and allow for the phone to be unlocked again (if a new hack comes out) not render modded phones useless. It's pretty obvious there is code in the update to specifically deal with unlocked phones, which is illegal. Proving it on the other hand is a totally different issue ;)


RE: Unlocking...
By cmdrdredd on 10/11/2007 4:22:11 PM , Rating: 1
I love how every single reply that has a very valid point defending Apple that it is rated down.

Apple is the new Microsoft in that everyone has to hate them to be cool.

Just realize it people, when you buy the iPhone you already got ripped off. You knew it would only have support for AT&T networks. You circumvented their lock, and then you expect them to pay for it when your hack is rendered useless with an update? They have EVERY right to protect their product from what they deem as misuse. They explicitely state that no modifications of any kind are covered by any warranty expressed or implied.

As I said, it's cool to hate Apple because they do things that nobody thought of (iTunes w/Store for instance). It was the first one to take off and now everyone thinks they deserve a piece of their idea. Regardless of what you think of Apple, they do have quite a few innovative ideas.


RE: Unlocking...
By LogicallyGenius on 10/11/07, Rating: 0
RE: Unlocking...
By Domicinator on 10/14/2007 5:55:27 PM , Rating: 2
People aren't hating Apple because it's "cool". They used to like Apple because it was cool, but now they're starting to see that they've been duped.

Apple sells their product because it looks cool and because their false advertising tends to work on people who don't know any better. Now people are finally starting to wake up and realize that Apple products DO crash, they DO break, they DO lock up, and they are NOT immune to corporate BS. Steve Jobs is just as much of a corporate bastard as anyone else in business. If you think he cares about the consumer more than everyone else because he wears black turtle necks and throws touchy feely Apple conventions, you are mistaken.

In my opinion, the iPhone is the end of the innocence for Apple, and I sort of thought this might happen after people paid so much for these things. Now that the bricking thing is happening, now that people are starting to see all the things the iPhone CAN'T do that a free phone CAN do, now that people are starting to realize that iTunes is just an internet extension of the greedy, materialistic executive driven music industry, Apple is being taken to task by its own fanatical users.

I feel like the iPhone has been quite a debacle for them, and the new defective iMacs aren't doing them any favors either. Oh, not to mention the iPod Touch that tends to not work right either.


RE: Unlocking...
By Suomynona on 10/11/2007 10:49:04 AM , Rating: 1
quote:
I fail to see how any of this is AT&Ts or Apples fault. Have an exclusive right to something is an EXTREMELY common business practice. If they are going that route then they need to give me some Gran Turismo and Project Gotham Racing on my PC for God's sake. For that matter, they should port over All the Mario and Link games to the 360 and PS3. This is completely ridiculous.

That's a ridiculous comparison. Games that are built for different platforms can be totally different. It actually requires an effort on the developers part to make it work on another platform.

It's completely the opposite with a cell phone. The manufacturer has to go out of their way to make the phone not work on another network.


RE: Unlocking...
By Alexstarfire on 10/11/07, Rating: 0
RE: Unlocking...
By 1078feba on 10/11/2007 11:07:35 AM , Rating: 2
No offense, but you're analogies are a bit suspect, to me at least.

I think this one is much more apt: you buy a brand new Ccorvette, and for it's 5K mile check up, instead of taking it to the dealer, you take it to your mechanic buddy IOT save some dough.

Then GM comes along and clims they have the right to brick your $50K car because of that decision.

Now, irrespective of whether or not that particular issue was in the contract when you bought the car, is it right, morally and ethically?

I would submit that it's not, not even close.

Better yet: let's suppose that MS gets into producing laptops, and naturally when they put them in the channel, they invariably ship exclusively with either XP or Vista. You decide to "hack" it and install Linux.

Then MS bricks your laptop.

The point is, these iPhone owners are just that, owners. They didn't rent the iPhone, or lease it.

It's amazing to me really, that Apple would dive headlong into the same brush fire that the recording industry/RIAA currently finds itself in. Talk about short-sighted.


RE: Unlocking...
By Nodrog on 10/11/2007 12:52:14 PM , Rating: 3
They may be owners of the phone itself, but they are not owners of the software/OS. Read the SLA.


RE: Unlocking...
By rsmech on 10/11/2007 10:15:34 PM , Rating: 2
So did Apple brick the software they own or the hardware someone else owns? If they bricked the software then you should be able to reinstall it. If they bricked someones hardware they need to pay for it.

Kind of like getting the car for free, but you have to pay dearly for the keys. Doesn't make sense.


RE: Unlocking...
By Motley on 10/11/2007 1:04:27 PM , Rating: 2
Actually, it'd be a lot closer to reflashing the computer firmware in the corvette for a tighter, faster shift. Change the fuel/air mixture a bit to give a little bit more horsepower and response.

Then having your transmission fail, and taking it to the dealer and having them tell you your warrantee is void.

Oh wait, that is how it is.


RE: Unlocking...
By Muirgheasa on 10/11/2007 1:21:12 PM , Rating: 2
Umm, more like them reflashing the firmware to make it explode, I would contend.

Anyway, not sure about the US but under Irish law a consumer is entitled to do what they like with a good once they've bought it (sales of goods and services act), so what they're doing would be considered illegal here. That's assuming that it can be proved that they bricked them intentionally, which should be an interesting one.


RE: Unlocking...
By dare2savefreedom on 10/11/2007 9:13:51 PM , Rating: 2
I can just image a green clover and hearing...,

"They're after me unlockedly chimes!!!"


RE: Unlocking...
By Hawkido on 10/11/2007 3:14:04 PM , Rating: 2
Actually, it is contended that Apple (and AT&T) Deliberately and knowingly pushed an update that destroyed the phone if it had a hack on it, and then refused to honor their warrantee. I think this is wrong, as they targeted those who were behaving inside the law (excluding those who were hacking for other purposes). The phone didn't die because of the hack... It died because of the update that detected the hack then killed the phone. It might have well checked to see if you were Jewish or Muslim, or Black. All of this is based on Apple's deliberate descision was to kill the iPhone hackers, assuming this is true and can be proved. If it can be proved then Apple better be glad I am not on the jury, as I find it a blatlent abuse of their position. For the rest who weren't trying to use the iPhone on another network, too bad... You knew what you were doing was illegal, and you knew it would void your warrentee.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 11:13:59 AM , Rating: 3
http://www.copyright.gov/1201/

Check this out for those not up to date. 6 Exemptions were added to the DMCA last November 26th 2006.

quote:
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.


RE: Unlocking...
By omnicronx on 10/11/2007 11:18:06 AM , Rating: 2
Thats a pretty broad exemption.. does that mean you are legally allowed to edit firmware (if you can) but the company is not legally required to allow you to do so? Or does it mean that companies are required to allow unlocking?


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 11:32:23 AM , Rating: 3
As with everything legal it means they can't stop you. In fact most carriers have a policy because of this that they will allow you to unlock phones that you have purchased full price (No promotion price stuff that is subsidized). The iPhone is purchased at full price, so they can't argue they are losing money on it to make it back on the services. Apple makes a hefty profit infact. Legally Apple has no legs to stand on when it comes to not allowing iPhones to be unlocked. Now, the provision also contains the technical limitation of the device, ex. iPhone will not work on Verizon's network, the device can't do it, period. But anyone else with the same protocol that AT&T uses (T-Mobile) shouldn't be a problem.


RE: Unlocking...
By omnicronx on 10/11/2007 11:47:36 AM , Rating: 1
And this is why this case may go nowhere, we disagree on what that provision actually means. To me it says the phone must be allowed to be unlocked. Which it is, but the way I interpret it is, although Apple must allow phones to be unlocked, they do not have to continue to support unlocked phones in any way or form, meaning that if you decide to update the firmware with an AT&T apple update, you are out of luck. Of course that would make all new phones updated to 1.1.1 and not unlock able illegal, but would original users whom were originally on the unlock able firmware have a case? It will be interesting to see.

I could easily see the courts forcing apple to allow their phones to be unlocked, but wouldn't be surprised one bit if these class action suits go nowhere for original iphone adopters.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 12:06:15 PM , Rating: 2
Yea, the pisser here is that Apple, as the phone manufacturer can NOT break iPhones. Apple made the product. However, AT&T does not have to deal with unlocked iPhones, since they are the carrier.

This would be akin to Nokia must allow you to unlock their phones, but Verizon doesn't have to support you if you bought it from them and do not pay for/use a Verizon network.

That is where this is heading. Apple is likely to get the flack, and AT&T will sit back unscathed. AT&T has done nothing to prevent you from unlocking the phones, Apple has, and since Apple is the manufacturer and NOT the carrier, they are liable for bricking it.


RE: Unlocking...
By Nodrog on 10/11/2007 1:09:13 PM , Rating: 1
Amen and amen. The DMCA protects against copyright infringement. The 'exception' to the DMCA says basically "you may infringe on the copyright of a firmware that locks a phone to a specific network and not be held in violation of the DMCA". It does NOT say; any cell phone manufacturer must ensure that 1) the phone is sold unlockable, 2) the phone continues to be unlocked/unlockable upon all updates to the phone, 3) any damage to a phone because of unlocking must be covered and repaired by the manufacturer of the device.
It simply gives a consumer a right to 'circumvent the firmware for the sole purpose of lawfully connecting to a wireless telephone communication network', if they wish to. It states NOTHING of a businesses responsiblility to make sure a phone is unlocked, or stays unlocked.
These other points are ASSUMED by misinterpretation of the 'exception'.


RE: Unlocking...
By Nodrog on 10/11/2007 1:12:05 PM , Rating: 2
Now I see up above that slashbinslashbash said pretty much the same as I did 5 minutes before me...


RE: Unlocking...
By slashbinslashbash on 10/11/2007 1:19:26 PM , Rating: 2
It's all good! The more people we have who actually understand the way the law works, the more likely we are to hopefully overcome the misguided-but-enthusiastic views of others posting on the board.... sometimes people need to read the same thing more than once to understand it. I like the way you phrased your argument; maybe it'll make more sense to some people than my overly-verbose rantings... speaking of which, cheers :)


RE: Unlocking...
By Moishe on 10/11/2007 2:07:05 PM , Rating: 2
Exactly.
If we go on the assumption that Apple cannot release an update that breaks a third-party unlock... well the balance of power that was maintained has immediately slid too far to the other extreme (in the consumer's favor).

Apple should be allowed to update their phone software with an official release that breaks unofficial (or even previous "official") releases, especially if they've put a warning on the release that states that the release will overwrite the existing firmware and some previous features may not continue to function.

The only caveat should be that if you install a new (working) OS on functional hardware, there should be no reason why the hardware should stop working. A dead phone within warranty period should be replaced.


RE: Unlocking...
By NaughtyGeek on 10/11/2007 4:08:57 PM , Rating: 2
I agree that Apple should not concern itself with writing software that doesn't interfere with unsupported third party applications and if their updates happen to incidentally break those applications then too bad. What I do have a problem with however is if it is proven that they intentionally disabled the phone because it was unlocked from the AT&T network rather than an incidental software conflict. If that is the case, I hope they are penalized in some way.


RE: Unlocking...
By slashbinslashbash on 10/11/2007 1:13:07 PM , Rating: 2
quote:
As with everything legal it means they can't stop you.


No, it means nothing of the sort. It means that if you unlock the iPhone then you are not guilty of breaking the DMCA. I.e., you are not a criminal if you unlock your iPhone. (If you do other hacks to your iPhone then you may in fact be guilty of breaking the law, which is why the DMCA sucks so hard in the first place.)

The DMCA requires no responsibility on Apple's part at all. They don't "have to allow" anything. But if somebody does unlock the iPhone, Apple doesn't have copyright law (criminal law) on their side. Apple can't have unlockers thrown in jail (and yes, the DMCA does allow for a punishment of "a fine of up to $250,000 or a prison term of up to three years"). They might be able to make a civil case, but the copyright law is not being broken. That is all that this exemption states.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 1:55:30 PM , Rating: 2
Thats for the lawyers to decide, they get to interpret the law themselves as they see fit, and so does the judges.


RE: Unlocking...
By slashbinslashbash on 10/11/2007 2:15:33 PM , Rating: 2
Well, the same can be argued against you. You're going around here citing the DMCA left and right trying to prove a point, when it's clear that you're not a lawyer, and furthermore, you don't know how to interpret that piece of legislation nor the exemption thereto which you have cited at least twice on this topic.

If it's "all up to the lawyers" then why the hell are we all arguing about it here on a website? Laws are meant to be clear and unambiguous. They often fall short of that standard, but the intent behind this particular law is pretty clear. You can try to dismiss my argument all you want with "well your opinion doesn't matter because it's really up to somebody else to decide" but if you really believe that then I'd like to invite you to stop commenting as well because your opinion is no more valid than mine, no matter how many times you repeat it.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 3:11:56 PM , Rating: 2
Don't get your knickers in a bunch.

quote:
If it's "all up to the lawyers" then why the hell are we all arguing about it here on a website?

You tell me. But if you want I will stop commenting on this particular thread if it makes you feel any better about it.

quote:
Laws are meant to be clear and unambiguous. They often fall short of that standard, but the intent behind this particular law is pretty clear.

The intent was to protect unlockers from legal litigation, however you could argue that it protects their right to unlock and fair use of the device. Whether that will be successful in court, who knows.

quote:
You can try to dismiss my argument all you want with "well your opinion doesn't matter because it's really up to somebody else to decide" but if you really believe that then I'd like to invite you to stop commenting as well because your opinion is no more valid than mine, no matter how many times you repeat it.

I don't recall dismissing your argument, merely pointing out that arguing interpretation of the law when neither you nor I are lawyers is a waste of time.

This is true, our opinion and anyone else's here does not matter in this legal case. Only that of the Judge, Prosecution, Defense, and Jury if it makes it that far.


RE: Unlocking...
By slashbinslashbash on 10/11/2007 4:46:26 PM , Rating: 3
quote:
But if you want I will stop commenting on this particular thread if it makes you feel any better about it.


I don't want you to stop commenting, I want you to tell me why I'm wrong and you're right, instead of telling me that my opinion doesn't matter because lawyers and judges will have to decide in the end. I don't think you've shown me that I'm wrong and you're right yet.

quote:
The intent was to protect unlockers from legal litigation


No, it protects them from criminal prosecution under the DMCA. Quite a different thing from civil litigation.

quote:
however you could argue that it protects their right to unlock and fair use of the device.


Yes, it does do that, for certain meanings of "protects their right" and "fair use". But in any case, it's specifically limited to switching the device to a different wireless/cellular network.

But there's a big step from "it's okay if you do this" to "other people are prohibited from stopping you from doing this" or "other people must make it easy for you to do this" or even "other people must help you if you do this". If you are stupid enough to hack your iPhone and then apply an update from Apple then you shouldn't be surprised if your iPhone is bricked.

Apple has no obligation to support software provided by outside vendors on its devices. Let's have a thought experiment and take this to its extremes. Let's say that there are 100's of hacked iPhone firmwares from all kinds of different vendors, from independent hackers to respected companies. They all have their little variations and different ways of going about unlocking the iPhone (which are, as we have established, legal under the DMCA). Now let's say that, as you are asserting, Apple has an obligation to support *all* of those hacked firmwares in any future updates from Apple. Why in the world should that be the case? Why should Apple have to search out every last instance of hacked firmware and figure out how to make its own updates compatible with it?

Anybody applying a non-Apple firmware flash to their iPhone has no reason to expect that applying a subsequent Apple update to their iPhone won't completely screw everything up.

People with bricked iPhones should be mad with the people who provided the unlocking, not Apple. As we've already seen, already there are ways to un-brick your iPhone. The hacking community is basically going to have to provide constant support with each new update from Apple. People are just going to have to get used to that. Apple makes things really simple as long as you follow by their rules. Just plug in your iPhone and let iTunes take care of it. If you want to do fun, non-Apple-supported things with your iPhone (like use it on another network) then don't expect Apple to give you any help in the form of updates or anything else.

Lastly, I would like to ask if you would support the original statement in this thread that

quote:
I thought there was a provision in the DMCA(?) that *required* wireless providers to allow unlocking of phones.


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 5:41:56 PM , Rating: 2
quote:
I don't want you to stop commenting, I want you to tell me why I'm wrong and you're right, instead of telling me that my opinion doesn't matter because lawyers and judges will have to decide in the end. I don't think you've shown me that I'm wrong and you're right yet.

Right and wrong are matters of opinion. We could debate this indefinately.

quote:
No, it protects them from criminal prosecution under the DMCA. Quite a different thing from civil litigation.

I think it would be hard to persue a civil suit since Apple or AT&T was not harmed. However, since you bring it up, AT&T could sue the makers of the unlocking software under the pretext that their product has cost them lost revenue that would be gained from people having to buy their contract/plan through AT&T. This has nothing to do with the consumers though.

quote:
Yes, it does do that, for certain meanings of "protects their right" and "fair use". But in any case, it's specifically limited to switching the device to a different wireless/cellular network.

I'm specifically talking about use of device on another compatable network, I'm not going to touch the 3rd party apps portion of this article.

quote:
Apple has no obligation to support software provided by outside vendors on its devices. Let's have a thought experiment and take this to its extremes. Let's say that there are 100's of hacked iPhone firmwares from all kinds of different vendors, from independent hackers to respected companies. They all have their little variations and different ways of going about unlocking the iPhone (which are, as we have established, legal under the DMCA). Now let's say that, as you are asserting, Apple has an obligation to support *all* of those hacked firmwares in any future updates from Apple. Why in the world should that be the case? Why should Apple have to search out every last instance of hacked firmware and figure out how to make its own updates compatible with it?

Ah but here in lies the trick. It would be absolute childs play to do as Apple has done with the iPods for years and allow you to flash them back to factory state, thus forcing you to "unlock" them again. That is what should have happened during this update. However, Apple deliberately bricked them rather than force you to flash them back to factory state, which Apple is perfectly capable of doing through iTunes. Starting to see where this is going?

quote:
Lastly, I would like to ask if you would support the original statement in this thread that "I thought there was a provision in the DMCA(?) that *required* wireless providers to allow unlocking of phones. "

To the best of my current knowledge there is no such law on the books in the United States that states that. I could be wrong though, there have been several laws enaced similar to the DMCA and I am not familiar with all of them.


RE: Unlocking...
By tcsenter on 10/12/2007 12:38:42 AM , Rating: 2
quote:
As with everything legal it means they can't stop you. In fact most carriers have a policy because of this that they will allow you to unlock phones that you have purchased full price (No promotion price stuff that is subsidized).
Err...no. It means you cannot be sued under DMCA or copyright law as a result of the exempted conduct, it does not mean a manufacturer cannot prohibit unlocking the phone as a condition of warranty. A law granting exemption from civil [LEGAL] sanctions or penalties for certain conduct is not the same thing as authorizing that conduct or protecting it in all manners.


RE: Unlocking...
By A5un on 10/11/2007 11:16:03 AM , Rating: 2
Neither do I find any logic in the suing Apple for its monopolistic behavior. Like you said, this happens all the time in games. Gran Turismo is still going to be a PlayStation exclusive title. iPhone is still going to be a AT&T exclusive phone.

However, I do find it difficult to accept Apple's way to dealing with the unlocked phone. Since Apple probably never foresee their phones unlocked, it's probably NOT in the user agreement stating that phones can't be unlocked.

An unlocked iPhone is much different then using a pirated software. The software in this case is REAL and LEGIT, in terms of its authenticity. Apple's behavior to "brick" unlocked phones is similar to a hypothetical event that Dell starts to update all their PC's to run strictly in Windows, and such that any other OS (such as Linux) will result in system malfunction.

As for the price drop, although it's not illegal, it certain won't qualify as ethical business practice. One unspoken "item" that goes along with the iPhone is the status of exclusivity, and a lowered price severely hampers that. If you Ferrari Enzo sudden drop to a Porsche Boxter status, all hell's gonna break loose.


RE: Unlocking...
By ninjit on 10/11/2007 12:28:01 PM , Rating: 2
Exclusivity is fine, and you are still obligated to pay the 1-year/2-year contract term with AT&T, regardless of whether you use your iPhone with them or not. (so they both get their money from you still).

But it is absolutely illegal for them to prevent you from using your phone with another network if it is technically feasible to do so (GSM on Cingular/AT&T or T-mobile).

This is clearly a violation of the DMCA clause (that others have already posted).


RE: Unlocking...
By Master Kenobi (blog) on 10/11/2007 1:58:41 PM , Rating: 2
Actually you don't have to sign a contract. Buy the phone from the Apple store, take it home, unlock it and your golden. You sign up and enroll when you plug it into iTunes, however if you unlock first you don't have to. It's not like the phone is subsidized either, this thing is full price.

quote:
But it is absolutely illegal for them to prevent you from using your phone with another network if it is technically feasible to do so (GSM on Cingular/AT&T or T-mobile).

Absolutely, and they are going to argue that point in court.


RE: Unlocking...
By Ryanman on 10/12/07, Rating: 0
RE: Unlocking...
By tehfire on 10/11/2007 10:11:20 AM , Rating: 3
Wait...so there's actually something in the DMCA that doesn't get me put in jail? :-P


RE: Unlocking...
By NaughtyGeek on 10/11/2007 10:51:50 AM , Rating: 3
The DMCA provision has a provision making it lawful for you to modify the phones software for the purpose of unlocking it from the network. It DOES NOT state that you must be allowed to unlock it.

I just hope these lawyers do their homework and show that a specific portion of the update served no other purpose then to relock the phone. If they can prove that, they will be able to make a case. If not, then people modified their phones to a state unsupported by Apple and are TSOL that the phone was "iBricked."


RE: Unlocking...
By 1078feba on 10/11/2007 11:26:25 AM , Rating: 2
That's exactly what I was thinking. I'm no programmer, but I know that in that update code somewhere, and it may be several dependencies long, is the if/then statement that when distilled to it's simplest form, goes something like this:

" IF any other applications other than these:
1. Apple this
2. Apple that
3. Apple the other
are found,
THEN assume a bricked state."

When this goes to court, as I think it's likely to, and this particular point is brought to light, Apple is going to be in a world of hate and discontent.


Monopolistic behaviour?
By masher2 (blog) on 10/11/2007 10:36:57 AM , Rating: 5
Now Apple can by judged a monopoly by having less than 1% share of the total cellphone market?




RE: Monopolistic behaviour?
By EntreHoras on 10/11/2007 10:50:09 AM , Rating: 2
Apple has 100% of the iPhone market.


RE: Monopolistic behaviour?
By DeepBlue1975 on 10/11/2007 10:54:36 AM , Rating: 2
Yeah. And nokia has 100% of N95's market, and SE has 100% of w960's market and so on...

According to you, every manufacturer builds up a monopoly for every item they produce and should be sued as such, which is not what I understand from the article.


RE: Monopolistic behaviour?
By EntreHoras on 10/11/2007 11:03:17 AM , Rating: 2
Of course!

Just kidding.

What I should have written was that AT&T has 100% of the iPhone market.


RE: Monopolistic behaviour?
By drebo on 10/11/2007 11:29:38 AM , Rating: 2
Yes, but you can use the N95 and the W960 phones on any GSM network you want.

You can ONLY use the iPhone on AT&T's network, or it will get bricked. That's the monopoly and the anti-competitive business practices.


RE: Monopolistic behaviour?
By Nodrog on 10/11/2007 1:30:04 PM , Rating: 2
Um, no.
Monopoly;
A monopoly (from Greek monos, one + polein, to sell) is defined as a persistent market situation where there is only one provider of a product or service, in other words a firm that has no competitors in its industry. Monopolies are characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods.
An iPhone on AT&T's network is not a monopoly. There are MANY other competitive 'goods and services' to choose from in the 'persistent market'.


RE: Monopolistic behaviour?
By PitViper007 on 10/11/2007 2:32:00 PM , Rating: 2
A true dictionary definition. But it's not the the dictionary we need to reference here. You need to look at the legal definition is and it is somewhat different.

http://legal-dictionary.thefreedictionary.com/mono...

quote:
monopoly n. A business or inter-related group of businesses which controls so much of the production or sale of a product or kind of product to control the market, including prices and distribution. Business practices, combinations, and/or acquisitions which tend to create a monopoly may violate various federal statutes which regulate or prohibit business trusts and monopolies, or prohibit restraint of trade. However, limited monopolies granted by a manufacturer to a wholesaler in a particular area are usually legal, since it is like a "license." Public utilities such as electric, gas and water companies may also hold a monopoly in a particular geographic area since it is the only practical way to provide the public service, and they are regulated by state public utility commissions.


As you can see, there are differences between the legal and dictionary definitions of a monopoly. Personally I don't feel what Apple has done is truly monopolistic. It's bordering on it, but not there yet. I do think that Apple bricked unlocked phones intentionally and based on what I have read in the DMCA, is illegal. Just my 2¢


RE: Monopolistic behaviour?
By Moishe on 10/11/2007 2:41:41 PM , Rating: 1
It's not monopolistic to choose to confine your own market.

Apple does not have a monopoly on phones. Not only are there other phones and other phone providers but those providers have phones that provider essentially the same services for similar prices. Apple doesn't have to release it's phone for all networks. Apple doesn't have to provide the phone at all.

Since there are multiple types of phone networks, Apple can choose to embrace them all and thus widen their market, or just choose one and confine their market. Their agreement with AT&T is perfectly legal. The only thing Apple needs to do is support Apple hardware and Apple software.

rant
One problem with this country is that there are too many people who think everyone owes them. Extremism can go both ways and it IS possible for there to be too much power on either side, including the consumer's side.
/rant


RE: Monopolistic behaviour?
By mars777 on 10/12/2007 12:38:18 PM , Rating: 2
Stick in your head that being a Monopoly is not a criminal offense.
Using Monopolistic practices is!
And you can use monopolistic practices without being a monopoly.


RE: Monopolistic behaviour?
By Nodrog on 10/11/2007 3:00:38 PM , Rating: 2
Actually, they appear quite similar, just worded differently. Either way, Apple does not control the cell phone market, the iPhone is just one of many cell phones available. Their 'production or sale of a product (the iPhone)' does not 'control the market' (of cell phones).


RE: Monopolistic behaviour?
By noirsoft on 10/11/2007 5:33:57 PM , Rating: 2
There is precedent for doing exactly that sort of market-narrowing in a monopoly judgement. If you read the original "findings of fact" (fact used loosely IMO) by judge Jackson against Microsoft back in the day, he specifically ruled that the market he found Microsoft to have a monopoly over was the Intel-compatible CPU, Windows-compatible application market. He specifically excluded MacOS, all Unixes, and pretty much everything except Windows and OS/2 as being in "a different market"

That's part of why I laugh at anyone who says that Microsoft was proven to be a monopoly. They may very well be one in the computer market in general, and I'm not claiming that they aren't, but it hasn't been proven. What was "proven" is only as worthwhile as saying that Apple has 100% of the iPod market or iPhone market or iMac market.


RE: Monopolistic behaviour?
By DeepBlue1975 on 10/11/2007 10:51:35 AM , Rating: 2
In those terms, of course not.

But if having an iPhone means you only can use it with AT&T, that is a monopoly as 100% of the iPhone's market is dominated by AT&T.

I think Apple is aimed because of the cross arrangement they made with AT&T about supplying the latter with 100% of the iPhones out there.
I also believe that AT&T is the one to win more with this arrangement, as Apple would sell much more iPhones by not letting any telephony service provider to get an exclusivity on their product.


RE: Monopolistic behaviour?
By masher2 (blog) on 10/11/2007 11:04:04 AM , Rating: 2
> "But if having an iPhone means you only can use it with AT&T, that is a monopoly "

Monopolies are defined by markets, not products. Market slicing has gotten a bit ridiculous these days, but still the smallest market the iPhone fits into is the Smartphone category...of which the iPhone holds only a few percentage points, and has a large number of competitors.

This is a clear perversion of the intent of anti-trust legislation, which exists to ensure competition is allowed to flourish. If you want to make calls on a different network, buy a different phone. What's the problem?


RE: Monopolistic behaviour?
By jhinoz on 10/11/2007 11:34:53 AM , Rating: 2
quote:
Monopolies are defined by markets, not products.


completely agree. If i buy a PS3, i can't use the Xbox online service, i have to use the PS3 online service, but no-one has a problem with that.

but if the PS3 became so rediculously cheap (selling at a loss) it forced Xbox and Wii out of the market, then that's anti-competitive behaviour and would land sony in trouble.

this is exactly what is happening in the retail supermarket sector of the Aussie economy.


RE: Monopolistic behaviour?
By DeepBlue1975 on 10/11/2007 11:43:22 AM , Rating: 2
The main problem I see here is this:

Apple could say something like "hey, give us your unlocked phone, we update it, you pay $50, it keeps working and with bugs corrected BUT it'll be locked again. still want the update?"

But they instead say "you unlocked it? You, sneaky tricky bastard!! Punishment for you! you have no right to any update and will have to keep holding on to those pesky bugs and... don't even try the update because your phone will probably be rendered into a fancy paper holder (evil laugh here)"

That's what's being taken as a monopoly enformcent policy, rather than what I said before (which was a complete mess, now tha I re read it. sorry for that)


RE: Monopolistic behaviour?
By IGoodwin on 10/11/2007 11:56:13 AM , Rating: 2
iPhines were bricked for having a 3rd party application installed, even when legitimatly unlocked and using AT&T. Not allowing a 3rd party to develop for a platform is monopolistic, as that does restric competition.


RE: Monopolistic behaviour?
By masher2 (blog) on 10/11/2007 12:30:51 PM , Rating: 2
> " Not allowing a 3rd party to develop for a platform is monopolistic, as that does restric competition. "

How so? If you want to develop applications for a cell phone, find a manufacturer willing to work with you or, failing that, design your own phone. If Apple wants to sell their phone a certain way, with only certain applications, and tied to a certain provider, they should have the freedom to do so. If you don't like it, vote with your feet and buy a different phone.

Now, if Apple had 90%+ of the cell phone market and monopolistic control, it'd be a different story. But they only hold a tiny fraction of market share. Competition is widespread and flourishing.


RE: Monopolistic behaviour?
By InsaneGain on 10/11/2007 12:31:41 PM , Rating: 2
Thank you. Suggesting this is an anti-trust situation is completely ridiculous. A monopoly implies a lack of consumer choice. People can decide they do not find Apple's terms and condition of AT&T exclusivity agreeable and very easily buy a different mobile phone with a different provider. Just because Apple may have created an innovative and desirable product in a very competitive market does not in any way suggest that they also have a monopoly. These plaintiffs must be assuming that Apple has somehow created a whole new industry. Of course, who knows what can happen when you sit a technically unsophisticated jury in front of persuasive, fast talking trial lawyers supported by a team of jury consultants.


RE: Monopolistic behaviour?
By clovell on 10/11/2007 11:40:43 AM , Rating: 2
quote:
Now Apple can by judged a monopoly by having less than 1% share of the total cellphone market?


I couldn't agree more, masher. These guys are inflating their lawsuit with BS in an effort to give Apple enough bad PR that they'll cave. Bearing in mind Apple's recent attitudes, there's a good chance they won't cave - and jurors will not be sympathetic to such a power play if this gets to court.

They're playing with fire.


Welcome
By Master Kenobi (blog) on 10/11/2007 9:37:51 AM , Rating: 5
Welcome to Microsoft's world, Intel's world, Dell's world, just Welcome. Welcome to what its like to be a real player in the market Apple. Now you know why Microsoft employs an excellent legal team.




RE: Welcome
By mmcdonalataocdotgov on 10/11/2007 11:01:59 AM , Rating: 2
Exactly. Choose your enemies wisely for that is who you shall become.

Apple Inc., which regained leadership as a mainstream tech firm by portraying an rebellious outsider image, will now have to face unpleasant comparisons to its corporate rivals, whom it once poked fun at.


RE: Welcome
By jhinoz on 10/11/2007 11:26:52 AM , Rating: 2
Didn't the unlock do the damage?

http://code.google.com/p/iphone-elite/wiki/iPhoneB...

in which case google won't need too much of a legal team?

Like if i put a turbo in my car i'll void the warranty, then if i get a factory ECU upgrade and my motor blows up, i can't sue the car company.


RE: Welcome
By xti on 10/11/2007 11:50:55 AM , Rating: 2
the software isnt going to melt the chips in the phone...


RE: Welcome
By jhinoz on 10/11/2007 11:57:30 AM , Rating: 2
true, but it will render the phone useless, much like a car without a motor...


RE: Welcome
By omnicronx on 10/11/2007 12:04:19 PM , Rating: 2
how so? If software changes are made to the firmware, how would this render the phone useless. All the apple firmware update should have done replace the firmware fully, meaning any previous changes should be gone (any modification to unlock the phone would be included in this).

Someone gave a perfect example before, if you put a supercharger in your car it only voids the engine warranty, if something like say your windows locks were to break, you would still be covered under warranty, even though the supercharger voids the warranty on the engine.


RE: Welcome
By Master Kenobi (blog) on 10/11/2007 12:10:09 PM , Rating: 3
True. This should simply make people unlock the phones again, rather than brick them. It would be childs play for Apple to basically do a "Fresh OS Install", instead it bricks them. That's a no go.


RE: Welcome
By tjr508 on 10/11/2007 12:25:26 PM , Rating: 2
So from now on, service packs for windows should replace the whole OS and wipe out all your data? That is silly.
I doubt the iPhone even supports a full firmware flash outside of the factory.


RE: Welcome
By Master Kenobi (blog) on 10/11/2007 12:38:57 PM , Rating: 2
Why not? The iPod does, and the iPhone is just an iPod with cellular features.


RE: Welcome
By Motley on 10/11/2007 1:11:37 PM , Rating: 2
Lol, that would bring a whole new meaning to patch tuesday.


RE: Welcome
By omnicronx on 10/11/2007 3:11:13 PM , Rating: 2
Great.. compare a windows update to a flash of a solid state disk. Most firmware updates actually erase the current data and replace it with new data. I know the ipod supports it, and i can think of countless other devices that work in the same way (routers, psp, smartphones, etc etc etc..). Updating firmware and not totally replacing it is more susceptible to corruption than replacing the entire thing.