Originally Posted by physguy
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.
But there's the kink in your argument. People who have modified their software for the purpose of operating on a different network have not
violated the language of the EULA.
The pertinent section of the EULA reads like this:
(c) Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the iPhone Software, you may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the iPhone Software, iPhone Software Updates, or any part thereof.
The key words here are "Except as ... permitted by applicable law..."
Since SIM unlocking is currently specifically permitted by applicable law, such an act is exempted from the EULA.
I still don't think Apple is doing anything wrong with the simple act of releasing a firmware upghrade that isn't compatible with certain modifications. I don't think that Apple is obliged to provide ongoing support for all the myriad different techniques of unlocking that have sprouted up so far.
However, I do think that Apple has a duty to provide a mechanism for reverting these legally modified, EULA-compliant,
phones back to a factory-approved (SIM-locked, if absolutely necessary) state.
If Apple could find some way of providing a legitimate means of unlocking the phones through official channels, even for a fee, then they would close the loop-hole that the DMCA exemption provides. Then, they'd no longer need to worry about any of this because at that point there would only remain one possible legitimate mechanism for SIM unlocking (therefore it would be easy to provide official support). Everybody else would unambiguously be in violation of the EULA, and Apple would no longer have any duty of care for them.
Hell, even if Apple would admit that the hardware really is subsidized (via the ongoing cut that AT&T is paying back to Apple from the monthly service fees), then I'd feel a little better about all of this, because then it would be clearly established that the iPhone hardware itself is still Apple's property and therefore the end-user doesn't have any property rights to it at all until the end of the contract. (Yes, I understand that the software itself always has remained Apple's exclusive property, and that it was only licensed to the end-user despite the end user's ownership of the physical hardware. That's the reason why the EULA, and the rights conferred by the EULA, exist.)