Apple sued over iPhone locking, DRM patent violations
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.
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.
Comments
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
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...
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.
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.
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.
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.
On the third hand...
Does this third hand have anything to do with your opinions on reception of Martian news broadcasts?
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
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.
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
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?
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???????
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.
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.
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.
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.
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
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.