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
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:
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.
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.
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.
quote: As with everything legal it means they can't stop you.
quote: If it's "all up to the lawyers" then why the hell are we all arguing about it here on a website?
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.
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.
quote: But if you want I will stop commenting on this particular thread if it makes you feel any better about it.
quote: The intent was to protect unlockers from legal litigation
quote: however you could argue that it protects their right to unlock and fair use of the device.
quote: I thought there was a provision in the DMCA(?) that *required* wireless providers to allow unlocking of phones.
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.
quote: No, it protects them from criminal prosecution under the DMCA. Quite a different thing from civil litigation.
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.
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?
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. "
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).
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).
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.
quote: Monopolies are defined by markets, not products.
quote: Now Apple can by judged a monopoly by having less than 1% share of the total cellphone market?
quote: It asks the court to issue an order to Apple to unlock iPhones
quote: and support hacked iPhones.
quote: Finally, it is seeking unspecified monetary damages.
quote: Even companies like Intel and AMD don't support the overclocked CPU's
quote: 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.
quote: 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.
quote: Unlocking your cell phone is now fully legal here in the U.S.—at least for the next three years. Last week, the Register of Copyrights released the latest list of exemptions to 1998's Digital Millennium Copyright Act (DMCA), and along with it, some welcome news for cell phone users.Of the six proposed exemptions (the largest number to date), the one that arguably affects U.S. consumers the most is number five on the list, which covers:"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."