Apple sued over iPhone locking, DRM patent violations

[AppleInsider]

Apple has been hit with two new lawsuits: one which charges the iPhone maker with antitrust violations for permanently disabling unlocked versions of its touch-screen handset, and another that accuses the company -- along with several other tech giants and adult media publishers -- with violating a DRM-related patent.

Suit over bricked iPhones

On Friday, California resident Timothy Smith filed a class-action lawsuit against Apple, alleging that the company is violating the state's Cartwright Act by prohibiting iPhone consumers from using and purchasing cell phone service other than through AT&T.

Filed on behalf of Smith by Damian Fernandez, the attorney who's been seeking plaintiffs for a class-action case against Apple over iPhone bricking, the suit claims that cell phone unlocking is completely legal and cites traditional copyright law as well as the more recent Digital Millennium Copyright Act.

The formal complaint, which does not yet seek monetary damages, asks the court to issue an injunction that would prevent Apple from selling the iPhone with any software lock. It also asks that Apple be enjoined from denying warranty service to users of unlocked iPhones and from requiring iPhone users to get their phone service through AT&T.

Suit over DRM patent violations

Meanwhile, AppleInsider has learned that Apple on Friday was also named in new patent infringement suit along with digital media heavyweights Microsoft, Blockbuster, Sony, and Macrovision, as well as adult content providers Playboy and Hustler.

The 11-page complaint, filed in the patent litigation-friendly district of Tyler, Texas, charges each of the firms with violating U.S. patent #6389541 for "Regulating Access to Digital Content," which was issued to Digital Reg of Texas, LLC in May of 2002.

"Upon information and belief, Apple has infringed and continues to infringe the [...] patent by making, using, providing, offering to sell, and selling (directly or through intermediaries), in this district and elsewhere in the United States, digital content incorporating DRM technology," the suit claims. "Apple provides such content through its iTunes Music Store and its iTunes Wi-Fi Music Store. Apple further provides controlled access and play out of digital content incorporating DRM technology through its iTunes Player. Apple also provides controlled access of digital content through its FairPlay Platform."

Digital Reg is seeking damages as a result of each defendant’s infringement, a permanent injunction barring the companies from further infringement, attorney's fees, and an award of enhanced damages "up to and including trebling" those deemed suitable by the Court as a result of each company's "willful and deliberate" actions.

Digital Reg is requesting a trial by jury.

[ View this article at AppleInsider.com ]

[SpamSandwich]

Steve is gonna have to warm up to the idea of using the mob to fight off these lawsuits.

[fraklinc]

what a dum ass law sue really, lol apple did not brick your phone dum ass you did it your self by ingnoring the warning, dum ass people really, I hope apple start counter suing these dum ass funboys. Its like suing for not being able to watch tv if you unplug the power cord

[Maestro64]

Originally Posted by fraklinc

what a dum ass law sue really, lol apple did not brick your phone dum ass you did it your self by ingnoring the warning, dum ass people really, I hope apple start counter suing these dum ass funboys. Its like suing for not being able to watch tv if you unplug the power cord

More like cutting the power cord and suing because your TV only picks up the network broadcast stations and you want to watch Martian News

[Rot'nApple]

Originally Posted by AppleInsider

Apple has been hit with two new lawsuits: one which charges the iPhone maker with antitrust violations for permanently disabling unlocked versions of its touch-screen handset... Suit over bricked iPhones -

On Friday, California resident Timothy Smith filed a class-action lawsuit against Apple, alleging that the company is violating the state's Cartwright Act by prohibiting iPhone consumers from using and purchasing cell phone service other than through AT&T.

Filed on behalf of Smith by Damian Fernandez, the attorney who's been seeking plaintiffs for a class-action case against Apple over iPhone bricking, the suit claims that cell phone unlocking is completely legal and cites traditional copyright law as well as the more recent Digital Millennium Copyright Act.

The formal complaint, which does not yet seek monetary damages, asks the court to issue an injunction that would prevent Apple from selling the iPhone with any software lock. It also asks that Apple be enjoined from denying warranty service to users of unlocked iPhones and from requiring iPhone users to get their phone service through AT&T.

Finally we'll let the courts decide on who's rights were violated - Apple's who created a product or as one poster commented - the 'mob rules' rights? Of course then, based on the court's decision, will another court have to decide if that court is right and if the court, deciding on the court is not right, then we'll have to let the Supreme Court answer. However, they have been known to be wrong on the issues of the day in the past... ie. slavery, separate but equal, etc. Little things like that...

[Buck]

what a dum ass law sue really, lol apple did not brick your phone dum ass you did it your self by ingnoring the warning, dum ass people really, I hope apple start counter suing these dum ass funboys. Its like suing for not being able to watch tv if you unplug the power cord

Well, people sure are dumb asses, aren't they.

[lfmorrison]

Originally Posted by Maestro64

More like cutting the power cord and suing because your TV only picks up the network broadcast stations and you want to watch Martian News

Exactly like, buying a television whose antenna is completely capable of picking up Martian News. but whose control software has been designed with the explicit intent of only picking up terrestrial broadcasts, making the necessary changes to the controller software to start picking up said Martian broadcasts, and then suing because the manufacturer decided to change its method of enforcing its Terran-only policy and released a resulting software update which depends on building on the baseline factory-default firmware - and incapable of functioning when added on top of certain versions of - but not all - modified Martian-friendly firmware.

At the end of the day, I don't think Apple can reasonably be expected to provide ongoing support for every possible divergence that they might encounter from their official factory-default firmware due to the many different unofficial unlocking techniques that might evolve over time. Therefore I don't think they did anything wrong in releasing firmware updates that aren't compatible with certain unlocking schemes.

Are they in the wrong for refusing warranty service to help customers get their phones back into a factory-authorized state? On the one hand, their stated reason for voiding the warranty - that the users have violated the EULA - has a reasonable chance of being disproved, since the EULA already has provisions which could very easily be interpreted as granting permission for certain kinds of firmware modifications as allowed by applicable law - specifically, the law allowing the kind of modification which would be required to allow a phone to be used on a different network.

On the other hand, warranty service wouldn't be required if the user hadn't made that modification in the first place. Even if the EULA hasn't been broken, there is an argument to be made that the reasonable man would have known that they might not be able to continue installing new Apple-approved software updates after adding some unauthorized ones of their own. Maybe the onus ought to be on the people who provided the hacks in the first place to provide a safe upgrade path.

On the third hand, the act of un-bricking the phone most likely can be done with a USB cable and appropriate software. At the worst, it most definitely doesn't require anything more involved than opening up the phone, attaching a JTAG probe, and about a minute of Flash formatting and re-programming.

I wish the the best of luck in the other part of their suit - essentially obtaining an injunction requiring Apple to furnish a legitimate means of obtaining a network-neutral iPhone. I don't think it has a snowball's chance in Hell, though, because there simply doesn't appear to be any law on the books in the USA on which to base a mandatory unlocking system.

It's one thing to say that such-and-such is not illegal. It's another thing entirely to then go on to say that, since it isn't illegal, such-and-such must by extension become mandatory.

[shetline]

Originally Posted by Maestro64

More like cutting the power cord and suing because your TV only picks up the network broadcast stations and you want to watch Martian News

Your analogy is terrible because wanting to use an iPhone on T-Mobile isn't anywhere near as exotic or unreasonable idea as expecting imaginary programming from distant planets. Further, while it would a totally unreasonable expectation for a TV to keep working after its power cord has been cut, it's actually the more natural behavior for a GSM cell phone to work with any carrier the user likes, just by changing the SIM card. Being locked to one carrier is an artificial restriction that the cellphone maker has to go out of their way to create.

Re-read this sentence:

"On Friday, California resident Timothy Smith filed a class-action lawsuit against Apple, alleging that the company is violating the state's Cartwright Act by prohibiting iPhone consumers from using and purchasing cell phone service other than through AT&T."

The devil is in the unstated details. Clearly an iPhone customer can get service from carriers other than AT&T if they like -- they'd simply have to purchase an additional cell phone to do so. Does the law stipulate specifically, however, that a customer has to be able to get service from any carrier using any cellphone that they own, or a least any signal-compatible cell phone?

If the law actually dictates the latter, it's Apple who's guilty of not paying attention to "the rules" and stupidly expecting to do things the rules say they're not allowed to do, of entering into a deal with AT&T based on terms that perhaps they aren't legally allowed to enforce, at least in some states.

It might even be to Apple's advantage to lose this particular law suit. If Apple were forced by law to unlock the iPhone from being bound to AT&T -- either that or simply not sell iPhones in California or any other state with a similar laws -- I think AT&T would have to see the light at some point when losing all customers in some states (including a big state like California) is a worse deal than keeping exclusivity in the remaining states. Then Apple would be free from AT&T lock-in, could start selling to T-Mobile as well, and perhaps sell unlocked iPhones too.

[Taskiss]

http://trolltracker.blogspot.com/200...efner-and.html

Is this a troll case? I'm not sure (although there are definitely signs - multiple defendants, multiple shells, blatant venue shopping, no connection to original inventors), and I don't care. It's just fun to muse that Bill Gates, Steve Jobs and Larry Flynt will be forced to share the stage in Tyler. If there were ever a case that illustrates the ludicrousness of forcing multiple defendants together in a single case, this one takes the cake.

[shetline]

Originally Posted by lfmorrison

On the third hand...

Does this third hand have anything to do with your opinions on reception of Martian news broadcasts?

[wizard69]

That is the way I see it, one useful lawsuit and another cap lawsuit.

As to the people defending their rights to use cell phones on the carrier of their choice all I have t say is hurray for those with the back bone to go up against Apple. The problem that many seem to mis in this thread is that Apple has behaved very badly with respect to the law and consumer rights. There is nothing wrong with trying to blunt a corporation that has gotten a little to big for its pants.

Dave

[Taskiss]

http://www.lectlaw.com/files/ant15.htm

CARTWRIGHT ACT

Horizontal Violations

Like its federal counterpart in Sherman Act 1, California's antitrust
statute - Bus. & Prof. Code 16720 - bars any agreement among competitors
that would serve to fix prices or allocate customers or markets, albeit
by way of a more detailed list of transgressions than is set out in the
Sherman Act's general prohibitions against "restraints of trade". For
recent court interpretations of what may constitute such proscribed
horizontal agreements and arrangements, the reader is directed to the
following cases: Rosack v. Volvo Corp. of America (1982) 131 Cal.App.3d
741; Mailand v. Burckle (1978) 20 Cal.3d 367; Kolling v. Dow Jones & Co.
(1982) 137 Cal.App.3d 709.

Tying Arrangements

Again like its federal counterpart in Section 3 of the Clayton Act,
California's antitrust laws - Bus. & Prof. Code 16720, 16727 - ban tying
arrangements. However, those statutes may apply to services where the
Clayton Act would not apply. Cases applying the tying laws are: Kim v.
Servosnax, Inc. (1992) 10 Cal.App.4th 842; Suburban Mobil Homes, Inc. v.
Amfac Communities, Inc. (1980) 101 Cal.App.3d 541.

Vertical Restraints

General Rules Governing Pricing Restraints

A buyer who buys a product or service generally may set the price at
which it resells the product or service to others. A seller, in the
absence of an anticompetitive purpose or effect, may independently (1)
announce minimum resale prices and decide to sell or not to sell to a
dealer who has not adhered to those prices; and (2) choose those to whom
it wishes to sell and refuse to sell to any other buyer. Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 719, 722. However, a seller of a
product may not by contract or coercion set the price at which the buyer
may resell the product. Such resale price fixing is always illegal
whether or not the price set is reasonable. Mailand v. Burckle (1978) 20
Cal.3d 367, 377.

Apple isn't a cellular phone service provider. Since the Cartwright Act specifically prohibits agreements "among competitors" I can't see the lawsuit having legs.

http://calbar.ca.gov/calbar/2cbj/97sep/97sep-14.htm

Tying may violate both §§16720 and 16727, and it is per se illegal only when the products are truly separate, and where either the seller has a dominant position in the market for the tying product or a not insubstantial amount of commerce in the tied product is affected. People v. National Association of Realtors, 155 Cal.App.3d 578, 583, 202 Cal.Rptr. 243 (1984).

I'd say a cell phone manufacturer and a cellular service provider are NOT truly separate.

[wizard69]

Originally Posted by lfmorrison

Exactly like, buying a television whose antenna is completely capable of picking up Martian News. but whose control software has been designed with the explicit intent of only picking up terrestrial broadcasts, making the necessary changes to the controller software to start picking up said Martian broadcasts, and then suing because the manufacturer decided to change its method of enforcing its Terran-only policy and released a resulting software update which depends on building on the baseline factory-default firmware - and incapable of functioning when added on top of certain versions of - but not all - modified Martian-friendly firmware.

That really isn't close neither. The difference is that Apple is blocking service to providers of essentially the same networking service. It is not an issue of Martian and Terran broadcast but an issue of GSM and GSM "broadcasts", where the primary difference is the service provider.

At the end of the day, I don't think Apple can reasonably be expected to provide ongoing support for every possible divergence that they might encounter from their official factory-default firmware due to the many different unofficial unlocking techniques that might evolve over time.

They may be compelled to offer a valid unlocking method though. Besides that they may be compelled to not to damage the iPhones with updates. This intentional damaging is a key issue with respect to the public madness that has resulted from this update. It is pretty difficult to imagine how this bricking is anything but a planed response to people choosing a carrier other than AT&T.

Therefore I don't think they did anything wrong in releasing firmware updates that aren't compatible with certain unlocking schemes.

That is not what people are complaining about. In fact the lack of compatibility would pretty much be expected. People understand and expect software compatibility issues

It is the mean spirited approach to the bricking of the iPhones that is the issue. If the updates bricking wasn't intentional then I don't think we would have seen every iPhone brick no matter how the unit was unlocked.

Are they in the wrong for refusing warranty service to help customers get their phones back into a factory-authorized state? On the one hand, their stated reason for voiding the warranty - that the users have violated the EULA - has a reasonable chance of being disproved, since the EULA already has provisions which could very easily be interpreted as granting permission for certain kinds of firmware modifications as allowed by applicable law - specifically, the law allowing the kind of modification which would be required to allow a phone to be used on a different network.

I see Apple as being responsible for the intentional bricking of the iPhones. Pretty hard to get around that.

On the other hand, warranty service wouldn't be required if the user hadn't made that modification in the first place.

There are already reports that this isn't the case. IPhones have been bricked without being carrier unlocked.

Even if the EULA hasn't been broken, there is an argument to be made that the reasonable man would have known that they might not be able to continue installing new Apple-approved software updates after adding some unauthorized ones of their own. Maybe the onus ought to be on the people who provided the hacks in the first place to provide a safe upgrade path.

The people providing the hacks are only offering what people are legally entitled to. I'm not sure why people get stressed over that idea.

In any event it is unreasonable for anybody to expect that Apple isn't capable of employing engineers that can produce a update that doesn't trash the iPhone. Due to Apples size and stature in the industry it is pretty obvious that they do have access to the best in the industry and is further evidence that the bricking is no accident.

On the third hand, the act of un-bricking the phone most likely can be done with a USB cable and appropriate software. At the worst, it most definitely doesn't require anything more involved than opening up the phone, attaching a JTAG probe, and about a minute of Flash formatting and re-programming.

I'm very much in agreement with that.

I wish the the best of luck in the other part of their suit - essentially obtaining an injunction requiring Apple to furnish a legitimate means of obtaining a network-neutral iPhone. I don't think it has a snowball's chance in Hell, though, because there simply doesn't appear to be any law on the books in the USA on which to base a mandatory unlocking system.

I'm not sure if a law is needed. We already know a person has the right to unlock their phone, by eliminating that ability Apple has effectively tried to infringe on individual rights through their software update. Seems like a liability to me.

It's one thing to say that such-and-such is not illegal. It's another thing entirely to then go on to say that, since it isn't illegal, such-and-such must by extension become mandatory.

True to some extent. The logical problem here is how can one have a specific freedom but then be enjoined from exercising that freedom due to corporate fiat. The rational logical response is that Apple needs to offer an unlocking program or an unlocked phone to meet these realities.

If the legal challenges are successful, Apples approach will likely to be to offer an unlocked iPhone for several thousand dollars.


Dave

[ros3ntan]

hey maybe i should file a suit against sony, hp, dell, gateway and all other PC computer manufacturer because they cannot install MAC OSX...

maybe i should file another lawsuit for all the game makers that have exclusive deals with Sony or XBox or nintendo..

Maybe i should file another lawsuit for Halo 3 makers for making it only for XBOX.. I WANT TO PLAY HALO 3 ON PS3 OR I'LL SUE YOU.

there are many other examples.

So what do you think of this lawsuit now?

[physguy]

Originally Posted by wizard69

That is the way I see it, one useful lawsuit and another cap lawsuit.

As to the people defending their rights to use cell phones on the carrier of their choice all I have t say is hurray for those with the back bone to go up against Apple. The problem that many seem to mis in this thread is that Apple has behaved very badly with respect to the law and consumer rights. There is nothing wrong with trying to blunt a corporation that has gotten a little to big for its pants.

Dave

Why does this go back to Apple? There are many phones out there that are locked so that doesn't appear to be illegal. None of my phones have ever been upgraded with software in any case (no 'smart phones') despite have numerous bugs - so no requirement to have updates and I'm not aware of any law that requires updates for bugs that don't interfere materially with the functions sold.

1) Apple sold a phone that, based on the actual result, could be used on multiple carriers - no foul here.

2) Apple provided an upgrade that, given that they don't know how the phones were unlocked, might break them - reasonable - and took the responsible step to warn people to not update if they unlocked the SIM. - good citizen effort.

3) Apple increased the security of their software (better hidden key, etc.), which they sell as non-extensible. - nothing illegal here.

Everyone in these complaints is basically saying they don't like the way the cell-phone industry in the US is run. That's fine, has absolutely nothing to do with Apple or the iPhone. At the moment these are a tiny fraction of the market. There is absolutely no monopoly position here to abuse. I'm believe I'm fairly safe in proclaiming that there are other choices of phones, even 'smart phones' to buy. Where is the legal foul that Apple did?? IMO, there isn't even much of an ethical foul but you don't (or shouldn't) involve the courts in ethical disputes that do not involve illegal activity.

What did Apple do that was illegal???????

[extremeskater]

Originally Posted by SpamSandwich

Steve is gonna have to warm up to the idea of using the mob to fight off these lawsuits.

People are interesting. First they want to sue over a price drop then they want to sue because they can only use ATT. They knew they could only use ATT before they bought the phone. Im amazed that lawyers take cases like this.

[extremeskater]

Originally Posted by ros3ntan

hey maybe i should file a suit against sony, hp, dell, gateway and all other PC computer manufacturer because they cannot install MAC OSX...



So what do you think of this lawsuit now?

Actually the lawsuit would be filed against Apple in that case they block OS X not the hardware manufacturers. Apple has always liked to create its own arena and then play only within that arena.

Now that more are switching to Apple products they do not like this approach because their use to a more open market. Im not saying these suits have merrit , not sure if they do or not but when people spend their money they don't want to function only in an Apple world.

[GQB]

Originally Posted by extremeskater

Apple has always liked to create its own arena and then play only within that arena.

Now that more are switching to Apple products they do not like this approach...

And Apple does not force anyone to come into the 'arena'.
If this nonsense gets pointed where it belongs (at the cell carriers and their tools in the legislature and regulatory agencies), then perhaps some good will come of it in the long run.
But Apple is just the most convenient 'deep pocket'.

You know, all of this pissing and moaning from the 'water to wine/whine' crowd (I want to put a V-8 Hemi on my lawn mower and want Apple to support it when I do) is really an interesting complement to Apple. Its the first device that actually is capable of doing all the things they want, and in the ultimate spirit of entitlement, the jailbreak crowd figures Apple somehow owes it to them to provide its platform as a playground.
That's the only thing I can think of that might result in the pathological ranting going on.

[GQB]

Originally Posted by physguy

What did Apple do that was illegal???????

Simple. They succeeded in creating a great product, and now the mob wants their piece of the action.

While I left the fold years ago, dig out your copy of Atlas Shrugged.
Ayn lays it out pretty well, bless her perverted little heart.

[Clive At Five]

In all honesty, I think Apple should at least be held responsible for creating a restore tool to unbrick iPhones.

Why? Because the unlocks that people used on their iPhones ARE ALLOWED by the DMCA, and Apple made unusable the phones of those who did nothing illegal.

Those shouting about the EULA and "warnings" from Apple, hear this: Apple's governing over people's use of iPhones cannot violate the rights they have, which, in America, include the ability to modify one's phone in such a way. They don't have sovereign rule over what iPhone users can and can't do.

It would be like a landlord selling a lot in a Mall but forbidding the tennant and all employees from silently praying before they eat their lunch, or any other form of personal religious practice.

Personally practicing religion is legal in the US, and no one can forbid you from doing so. Likewise with phone, no one can prevent you from unlocking. Just because the athiest tennant wants to snub out all religous folk, doesn't mean it's legal to do so. Likewise, just because Apple wants to enforce AT&T use doesn't mean they can forcibly snub out unlockers.

Thus, I don't find it at all unreasonable to demand that Apple provide a way to unbrick, therefore allowing users either a chance to sign up for AT&T, or attempt unlocking again, with a working unit (at their own risk, of course).

Let me make it perfectly clear that I do NOT think Apple should be charged with supporting unlocked phones or phones with 3rd-party programs. Those should be "proceed-at-you-own-risk" activites. I only approve of the "unbricker."

By the way, before you opponents begin to flame me, I do not own an iPhone, so no, I am not biased.

-Clive

[mdriftmeyer]

Originally Posted by shetline

Your analogy is terrible because wanting to use an iPhone on T-Mobile isn't anywhere near as exotic or unreasonable idea as expecting imaginary programming from distant planets. Further, while it would a totally unreasonable expectation for a TV to keep working after its power cord has been cut, it's actually the more natural behavior for a GSM cell phone to work with any carrier the user likes, just by changing the SIM card. Being locked to one carrier is an artificial restriction that the cellphone maker has to go out of their way to create.

Re-read this sentence:

"On Friday, California resident Timothy Smith filed a class-action lawsuit against Apple, alleging that the company is violating the state's Cartwright Act by prohibiting iPhone consumers from using and purchasing cell phone service other than through AT&T."

The devil is in the unstated details. Clearly an iPhone customer can get service from carriers other than AT&T if they like -- they'd simply have to purchase an additional cell phone to do so. Does the law stipulate specifically, however, that a customer has to be able to get service from any carrier using any cellphone that they own, or a least any signal-compatible cell phone?

If the law actually dictates the latter, it's Apple who's guilty of not paying attention to "the rules" and stupidly expecting to do things the rules say they're not allowed to do, of entering into a deal with AT&T based on terms that perhaps they aren't legally allowed to enforce, at least in some states.

It might even be to Apple's advantage to lose this particular law suit. If Apple were forced by law to unlock the iPhone from being bound to AT&T -- either that or simply not sell iPhones in California or any other state with a similar laws -- I think AT&T would have to see the light at some point when losing all customers in some states (including a big state like California) is a worse deal than keeping exclusivity in the remaining states. Then Apple would be free from AT&T lock-in, could start selling to T-Mobile as well, and perhaps sell unlocked iPhones too.

T-Mobile determines which Phones work with their backbone, not Apple.

Sue away. Perhaps this lawsuit will force the Telcos to open up.

It won't hurt Apple sales and only do the heavy lifting for them.

[GQB]

One more try.
1) Apple has no responsibility to build its business model around hand-holding geeks with nothing better to do than hack their phone, break it, and cry to mama.
2) "But its MY PHONE!!!"
Yup. Your phone, Apple's software/firmware. (Read your contract.) You can saw it in half and glue a propeller on it to try to fly, but that's not Apple's responsibility.
3) But they NEED US!!!
AAPL: 167.91 ( +6.4601 )
The market disagrees. In fact the case can be made that the more the Apple cat keeps bitch-slapping the trespassing mice, the more users with an interest in platform stability will embrace it.

[scottiB]

Originally Posted by GQB

Simple. They succeeded in creating a great product, and now the mob wants their piece of the action.

While I left the fold years ago, dig out your copy of Atlas Shrugged.
Ayn lays it out pretty well, bless her perverted little heart.

Indeed (an Objectivist that's left the fold, as well).

[physguy]

Originally Posted by Clive At Five

In all honesty, I think Apple should at least be held responsible for creating a restore tool to unbrick iPhones.

Why? Because the unlocks that people used on their iPhones ARE ALLOWED by the DMCA, and Apple made unusable the phones of those who did nothing illegal.

OK, one more time.
1) DMCA, as enacted, forbids unlocking of phones. A three year exemption from prosecution is in place for personal unlocking of phones. This is not ALLOWED by the DMCA in this respect.

2) Apple did NOT make the phones unusable. The users did by upgrading, despite the warnings.

Originally Posted by Clive At Five

Those shouting about the EULA and "warnings" from Apple, hear this: Apple's governing over people's use of iPhones cannot violate the rights they have, which, in America, include the ability to modify one's phone in such a way. They don't have sovereign rule over what iPhone users can and can't do.

See above. To my knowledge there is no US law or constitutional amendment which gives anyone the RIGHT to unlock their phone, it is simply exempted from any criminal (and probably civil) action at this time. Somehow I don't think anyone will argue that this falls into any inalienable rights definition.

Cheers.

[quinney]

Originally Posted by Clive At Five

Let me make it perfectly clear that I do NOT think Apple should be charged with supporting unlocked phones or phones with 3rd-party programs. Those should be "proceed-at-you-own-risk" activites. I only approve of the "unbricker."
-Clive

That seems contradictory. Unbricking unlocked or software modified phones
IS supporting them. Do you think users should pay a fee to have their bricked
phones unbricked, or are you saying Apple should have to eat the expense
of doing it?

[GQB]

Originally Posted by scottiB

Indeed (an Objectivist that's left the fold, as well).

There must be a 'recovered Objectivists' support group out there somewhere.
Appropriate nostalgia for post #100.

[Hiro]

Why do so many folks think here is any law in the US that expressly requires phones to be unlockable? There isn't. Period.

The only thing that is remotely close is an interpretation of an exemption to the DMCA which states it is not illegal to unlock your own phone. This ruling was made in direct response to cell providers suing their customers in court for customers unlocking their phones. Can't do that anymore, but there is no law or ruling requiring unlocking. Further, providing tools to others to unlock their phones is not covered in that ruling since it specifically refers to individual customers.

Nothing in there saying you can unlock a phone and force the manufacturer to support it. Nothing saying a cell carrier has to provide an unlock code by law. Nothing saying a phone even has to be unlockable or remain unlocked forever once unlocked. The ruling just says you can't be held criminally or civilly liable for unlocking YOUR OWN phone if you have the means to do so.

So now let's quit with the false legal posturing and get on with a reasonable discussion. If you think locking is morally reprehensible, that's totally fine. But separate your opinions from legal requirements, they are completely different things.

[SpamSandwich]

Originally Posted by extremeskater

People are interesting. First they want to sue over a price drop then they want to sue because they can only use ATT. They knew they could only use ATT before they bought the phone. Im amazed that lawyers take cases like this.

Lawyers want money. They'll sue anyone for anything you want to sue them for.

[Clive At Five]

Originally Posted by physguy

OK, one more time.
1) DMCA, as enacted, forbids unlocking of phones. A three year exemption from prosecution is in place for personal unlocking of phones. This is not ALLOWED by the DMCA in this respect.

2) Apple did NOT make the phones unusable. The users did by upgrading, despite the warnings.



See above. To my knowledge there is no US law or constitutional amendment which gives anyone the RIGHT to unlock their phone, it is simply exempted from any criminal (and probably civil) action at this time. Somehow I don't think anyone will argue that this falls into any inalienable rights definition.

Cheers.

Yes, as you said, there's a three-year limitation on the exemption, but it is saying that cell phone unlocking IS NOT ILLEGAL for that time period. If something isn't illegal, then it's legal. Therefore an US resident DOES have the right to unlock his or her cell phone, at least within the next 2 years and 1 month.

Originally Posted by quinney

That seems contradictory. Unbricking unlocked or software modified phones
IS supporting them. Do you think users should pay a fee to have their bricked
phones unbricked, or are you saying Apple should have to eat the expense
of doing it?

Since unlocking is legal, users who did so did nothing illegal and Apple shut them out of service. Users should not have to pay an extra fee to revert their phones back to an initial state. Notice I'm not talking about "support for bricked phones." I'm saying there should be a tool that will install a full working version of 1.1.1, not simply an update to 1.0.2. Even unlockers who have registered AT&T SIMs can't use their product and those who never used (but still own) their original SIMs can't activate with AT&T if they now want to.

Seeing as how they didn't do anything illegal, how is this just?

-Clive

[physguy]

Originally Posted by SpamSandwich

Lawyers want money. They'll sue anyone for anything you want to sue them for.

Here Here!!! Now if we could only get them to focus on suing each other we might create that snake that ate its own tail

[physguy]

Originally Posted by Clive At Five

Yes, as you said, there's a three-year limiation on the exemption, but it is saying that cell phone unlocking IS NOT ILLEGAL. If something isn't illegal, then it's legal. Therefore an American DOES have the right to unlock his or her cell phone, at least within the next 2 years and 1 month.



Since unlocking is legal, users who did so did nothing illegal and Apple shut them out of service. Users should not have to pay an extra fee to revert their phones back to an initial state. Notice I'm not talking about "support for bricked phones." I'm saying there should be a tool that will install a full working version of 1.1.1, not simply an update to 1.0.2. Even unlockers who have registered AT&T SIMs can't use their product and those who never used (but still own) their original SIMs can't activate with AT&T if they now want to.

Seeing as how they didn't do anything illegal, how is this just?

-Clive

Something being legal and conferring a RIGHT are two entirely different concepts. If unlocking a phone is a RIGHT granted or recognized by the gov't then no (ordinary) contract can abrogate that right. As a US citizen you have the RIGHT to be free from various, defined, forms of discrimination. This right cannot be removed by a contract.

This is not the case with unlocking a phone. You are perfectly free to enter into a contract along the lines 'I won't unlock this phone if you do XYZ'. In point of fact those who unlocked their phones did breach a contract to which they had agreed - the EULA with Apple. That breach relieved Apple of further responsibility wrt the upgrade.

Is this just? Maybe, maybe not. Various opinions abound. Does Apple have any legal responsibility - no.

[SpamSandwich]

Originally Posted by physguy

Here Here!!! Now if we could only get them to focus on suing each other we might create that snake that ate its own tail

http://en.wikipedia.org/wiki/Ouroboros

http://en.wikipedia.org/wiki/The_Worm_Ouroboros

[t.o.m]

Judges should start locking up stupid MF's like this who waste my money to get rich because of there unbridled greed. They need to be required to serve 1000 + hours of community service cleaning toilets for people who have the runs to make up for this greedy f*****g attempt at wealth. Hell, we all want to be rich, what we're willing to do to get it is the only difference. We'll see. I wish Apple and other company's would crush there soul and make them wish they'd never been born for this kind of sh*t. Including Microsoft!!!!

[johnqh]

Interesting .... nobody does the patent suit bashing on the DRM lawsuit this time?

Well, the patent's priority date was in 98. iTunes was released in 2001. Can anyone think of any prior art before 98? It looks like a solid patent to me.

[extremeskater]

Originally Posted by GQB

And Apple does not force anyone to come into the 'arena'.
If this nonsense gets pointed where it belongs (at the cell carriers and their tools in the legislature and regulatory agencies), then perhaps some good will come of it in the long run.
But Apple is just the most convenient 'deep pocket'.

You know, all of this pissing and moaning from the 'water to wine/whine' crowd (I want to put a V-8 Hemi on my lawn mower and want Apple to support it when I do) is really an interesting complement to Apple. Its the first device that actually is capable of doing all the things they want, and in the ultimate spirit of entitlement, the jailbreak crowd figures Apple somehow owes it to them to provide its platform as a playground.
That's the only thing I can think of that might result in the pathological ranting going on.

I never said anyone was forced, just that the population using Apple products is changing to a degree and many do not understand the switch. For those of us that have used Apple products in the past we understand the rules for a lack of better works.

As far as cell phones that doesn't matter to me I always buy mine at retail so I never get locked into a contract. Paying a few hundred for a cell phone has never bothered me, id rather have the freedom to use the provide of my choice and leave then when I chose.

As far as buying and iPhone anyone that didn't do their research before dropping down 600.00 in some cases are idiots. Some people just buy things based on a name not on needs. Im not saying the iPhone doesn't meet needs but I think people sometimes set their expectations to high for a first gen product.

As far as the whining I just believe the general population overall is stupid, they buy things before they think, they buy them based on a cool factor not based on what they really need. If a Mac Pro didn't suit my needs I would stop using one and ove to a PC, cool or not, if iLife, iWork, Photoshop CS3 didnt suit my needs I would find products that did. To me a phone, pc or whatever are tools I don't buy them based on how cool they look or a Steve Jobs keynote......


More people should take the approach. I still laugh when I read about people being pissed that Leopard still using aqua scroll bars, who gives a shit I could care less about how Leopard looks all I care about is what is offers me as an OS.

[physguy]

Originally Posted by johnqh

Interesting .... nobody does the patent suit bashing on the DRM lawsuit this time?

Well, the patent's priority date was in 98. iTunes was released in 2001. Can anyone think of any prior art before 98? It looks like a solid patent to me.

OK. There are 4 independent claims in the patent 1, 21, 32 and 37. In reading these, to me, they seem to be variation of cookie-based web access to a site, with and without encryption, etc. They involve an automated login process with a unique key. This is analogous to a cookie base login where the 'unique key' is your login information and the automated process is the web browser getting the information from the cookie and transmitting to the server. Then add ssl for encryption, etc. There are some differences but I could certainly argue obviousness based on the above analogy. What I can't say for sure (from my memory) is if the cookie based interaction was in place in 1998.

[Taskiss]

Originally Posted by johnqh

Interesting .... nobody does the patent suit bashing on the DRM lawsuit this time?

Well, the patent's priority date was in 98. iTunes was released in 2001. Can anyone think of any prior art before 98? It looks like a solid patent to me.

Originally Posted by AppleInsider

Suit over DRM patent violations

Meanwhile, AppleInsider has learned that Apple on Friday was also named in new patent infringement suit along with digital media heavyweights Microsoft, Blockbuster, Sony, and Macrovision, as well as adult content providers Playboy and Hustler.

The 11-page complaint, filed in the patent litigation-friendly district of Tyler, Texas, charges each of the firms with violating U.S. patent #6389541 for "Regulating Access to Digital Content," which was issued to Digital Reg of Texas, LLC in May of 2002.

"Upon information and belief, Apple has infringed and continues to infringe the [...] patent by making, using, providing, offering to sell, and selling (directly or through intermediaries), in this district and elsewhere in the United States, digital content incorporating DRM technology," the suit claims. "Apple provides such content through its iTunes Music Store and its iTunes Wi-Fi Music Store. Apple further provides controlled access and play out of digital content incorporating DRM technology through its iTunes Player. Apple also provides controlled access of digital content through its FairPlay Platform."

Here's prior art before '98...

Recordable Audio CD's use SCMS (Serial Copy Management System), an early form of digital rights management (DRM), to conform to the AHRA (Audio Home Recording Act).

Mon, 7 Apr 1997 01:02:57 +0200


Hello DAT-Heads ...

> >1) Are all commercially produced CDs bought from our local music store
> >(HMV, SAM the record man, TOWER Records, Sunrise or whatever) able to be
> >digitally transferred to DAT with NO PROBLEMS?
>
> Almost all CDs have the SCMS code 11, which means 1 more copy, so you
> can copy them digitally to a consumer dat deck (but you'll get a tape
> with 10, which cannot be copied digitally to a consumer deck). (The
> scms code for CDs was defined that way, which explains the unintuitive
> numbering scheme. CDs don't really have SCMS, but they have a
> "copyright asserted" bit (which is the first bit of their "scms"), and
> a "generation" bit (which is always 1, since CDs aren't masters)
> (which was used as the second bit of their "scms").)

http://www.fet.uni-hannover.de/~purnhage/dat/scms.txt

SCMS came before this patent.

[rjwill246]

Originally Posted by wizard69

That is the way I see it, one useful lawsuit and another cap lawsuit.

As to the people defending their rights to use cell phones on the carrier of their choice all I have t say is hurray for those with the back bone to go up against Apple. The problem that many seem to mis in this thread is that Apple has behaved very badly with respect to the law and consumer rights. There is nothing wrong with trying to blunt a corporation that has gotten a little to big for its pants.

Dave

A good thing there are actually people with brains here who can argue facts. You're not one of them....

[johnqh]

Originally Posted by Taskiss

Here's prior art before '98...
http://www.fet.uni-hannover.de/~purnhage/dat/scms.txt

SCMS came before this patent.

Did you read the patent claims? It is not about copy protection, which has prior arts all over the place. It is about having copy protection for online distributed materials.

Please, read and understand before you post.

[johnqh]

Originally Posted by physguy

OK. There are 4 independent claims in the patent 1, 21, 32 and 37. In reading these, to me, they seem to be variation of cookie-based web access to a site, with and without encryption, etc. They involve an automated login process with a unique key. This is analogous to a cookie base login where the 'unique key' is your login information and the automated process is the web browser getting the information from the cookie and transmitting to the server. Then add ssl for encryption, etc. There are some differences but I could certainly argue obviousness based on the above analogy. What I can't say for sure (from my memory) is if the cookie based interaction was in place in 1998.

Cookies were introduced in 1994. However, it is probably pretty difficult to argue it is obvious, because an average engineer in multimedia delivery (especially in 1998) probably is not an expert in web browser implementation, so this is not something "obvious" to an average person in trade.

To make it worse, I will bet that both Microsoft and Apple applied for patents for their version of DRM, which will in turn validate this particular patent.

This is the second patent lawsuit against Apple which I consider valid (last one was the one against Nike/Apple).