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We need updated law for technology governanceApple Users Talking Class-Action Lawsuit Over iPhone Locking
You bought the iPhone, you paid for it, but now Apple is telling you how you have to use it, and if you don't do things they way they say, they're going to lock it. Turn it into a useless "brick." Is this any way to treat a customer? Apparently, it's the Steve Jobs way. But some iPhone users are mad as heck, and they're not going to take it anymore.
In a Saturday post on Apple's own iPhone discussion forums, a user who goes by the handled of "myndex" has posted the provocatively entitled message "iPhone Class Action Lawsuit." Despite its title, it's not notice of an actual lawsuit. Rather, myndex is seeking comments from other forum users on what they think of suing Apple over its refusal to service users who've unlocked their iPhones or loaded them up with "unauthorized" applications. [Update, Sun 1:40 pm. As commenter "Poli," below, notes, myndex's entry on Apple's discussions.apple.com forums appears to have been removed by Apple some three hours after this Wolfe's Den post appeared. For that reason, at the end of this entry I've added screen captures of mydex's mirror post from the macrumor board.]
Here's an summary of the post:
"To: iPhone Owners denied warranty service. Seeking respondents for possible class action lawsuit against Apple Inc. relating to refusal to service iPhones and related accessories under warranty...There are three potential classes in this case: 1) Persons who own an iPhone and used software to access the available flash drive space on the iPhone [iPhoneDrive]; 2) Persons who installed 3rd party software on the iPhone for the purpose of expanding its functionality; 3) Persons who unlocked their iPhone to allow for its use on networks other than AT&T (NYSE: T)."
Should Apple be worried? Perhaps more for the groundswell myndex could create than an immediate legal action.
A quick search indicates that "myndex" likely isn't a lawyer. More probably he's a Mac guy. You get this from his Web site--mydex.com—which is something called Myndex Technologies. "We are a research and devlopment organization," the site says. A WhoIs search reports the site is registered out of Carson City, Nevada.
The other, more troubling, reason his suit might not fly is that some respondents on the site seem to be suffering from Apple-induced Stockholm syndrome. Writes one: "I would love to tinker with my iPhone, but it's not worth bricking it or voiding my warranty. Anyone who turns his shiny new phone into an iBrick by messing with the firmware AFTER he was warned and demands compensation... well... I have no sympathy."
Here's another: "I'm not saying what this new [Apple] update did was right but then again neither was modifying the phone to do what it was not intended to do no matter how useful the modifications were."
Personally, I'm with this poster, who shows some backbone:
"I'm afraid I'm not with Apple on this one. Seems to me that Apple's usage terms are onerous and unreasonable (can't put a file on your iphone which is as much a handheld computer as it is a telephone or an ipod?) What, we live in the digital equivalent of the iron curtain?"
I'm not averse to Myndex succeeding, because Apple's stance really bothers me. It seems like Jobs has turned the famous "Pottery Barn" rule on its ear. In the iPhone world according to Apple, it's "You bought it, we [might] break it."
The sheer hypocrisy of it all rankles. Here's a company whose CEO has railed again the inclusion of digital-rights management (DRM) encryption software on competitors' music files. Many people supported Jobs in his stance, assuming it was, at least in part, a philosophic nod in favor of consumer's rights. However, in light of the latest iPhone fiasco, a sober observer would say that was probably just a cynical business move to get onboard where he figured consumers were heading with or without Apple. (That's on top of the first iPhone mess: Jobs's precipitous early price cut, which blew a big raspberry at early adopters.)
Here's some background on what specifically Apple is doing. As InformationWeek reported on Sept. 24:
"Apple warned that unlocking programs used to connect the iPhone to cellular networks other than AT&T's causes 'irreparable damage' that would likely result in the modified device becoming inoperable when this week's Apple-supplied software update is released."
Sadly, as The New York Times noted on Saturday, Sept. 29, in its story Altered iPhones Freeze Up, this has indeed come to pass:
"Joel Robison, a systems network engineer near Seattle, said his phone stopped working immediately after he installed the upgrade. He said that when he took it to an Apple store, he was accused of having unlocked the phone. But he said that with the exception of one aborted attempt to install a piece of outside software, he had made no modifications to the phone. 'Their accusation was very damaging to my opinion of Apple’s service,' Mr. Robison said."
Damaging to his opinion? Heck yeah! What additional message do consumers need that Apple's iPhone arrogance has run amuck?
Still, one has to admit that Apple's stance is not unexpected. Nor is the corporate speak emanating from Cupertino in response to consumer concerns. This quote, in the Times' story from Apple spokeswoman Jennifer Bowcock, is priceless:
"If the damage was due to use of an unauthorized software application, voiding their warranty, they should purchase a new iPhone."
You can't buy this kind of publicity, can you?
In light of myndex's threatened suit, it's relevant to examine whether Apple's position that it totally controls the iPhone after a customer has bought it, opens Apple up to any legal action. An iPhone isn't software, so Apple can't hide behind a EULA or the position that customers are only "renting" or licensing the device and don't really own it. Or can they?
AT&T, the only wireless carrier offering the iPhone, has volleyed the issue back into Apple's court. An AT&T customer document entitled "Essential information before you buy," contains this gem: "iPhone is covered by the Apple Warranty. There is no eligibility for the wireless phone insurance program." The iPhone box says an AT&T contract is required for use and activation of all features of the phone, which makes for something of a round-robin situation here.
The iPhone manual (download, here) has this: "Apple is not responsible for damage arising from failure to follow instructions relating to the product’s use."
I'm not a lawyer, so don't know whether all this stuff puts Apple in a completely defensible position. To a layperson, it seems like there's a difference between damage that's out of Apple's control and Apple going out of its way to mess up your phone.
However, at least one lawyer doesn't agree with me. Here's Noah Funderburg, an assistant dean at the University of Alabama School of Law, quoted in the Times' story. "Anyone who hacks must know that they are taking certain risks," Funderburg told the paper. "If they aren’t willing to assume the risks upfront--like a brick iPhone--then maybe they should not hack the device."
There's been at least one prior iPhone suit, but it was about the fact that consumers can't get at the battery. Myndex's missive seems to be the first chatter about a "brick" suit.
What's next? Will Mr. Jobs tell iPhone users who they can and can't call, and when.
Hey, here's an idea, which comes by way of analogy with the way Apple treats iPhone hackers: If anyone messes around with stock-options, then their job turns into a "brick."
Back STORY
Hackers Get their iPhones (Back)
Annie Oakley (played by Steve Jobs): Anything you can hack, I can lock better. I can code anything better than you.
Frank Butler (played by a chorus of anonymous hackers): No you can’t!
Oakley: Yes I can!….
So it stretches the brain to think of Ethel Merman wearing a black turtleneck and jeans. Then again, “There’s No Business Like Show Business” could just as well have been written for Mr. Jobs.
In any case, there is certainly a battle of the egos between Apple and the hacking community over the iPhone. And this weekend, some sharpshooting coders have been able to restore at least some of the modifications to their iPhones that Apple had wiped away.
To recap the story: Last Thursday Apple released an upgrade to the iPhone firmware (the code that controls the phone operations). Users that had installed unauthorized software, found their new programs unusable. Those who had unlocked their phones to use networks other than AT&T—in violation of their agreement with apple-could not use their phones at all. In other words, their iPhones had been bricked.
Then, a user of the Hackintosh Forum who goes by the screen name KMAC1985 discovered a rather peculiar maneuver: If you hold down the power button and the home button on the phone for 10 seconds, then release the power button, the phone will enter a state that will allow it to restore the 1.0.2 software from a connected computer. (The details are here. For the visual, here is a music video tutorial.)
Users are reporting in forum comments that this can take several hours, and that it works for some phones but not others. (See coverage from The Unofficial Apple Weblog and Gizmodo.)
The forums seem to indicate that by downgrading the firmware to the previous version, iPhones can again use third-party applications. If a phone had been frozen by Apple’s firmware update, this procedure will allow it again to operate as music and video players and connect to a Wi-Fi network. The restoring the 1.0.2 firmware alone will let a phone connect to AT&T or any other cellular network.
Jesus Diaz, a reporter for Gizmodo, reports that he has been able to make calls again from his previously bricked iPhone. This involves, among other steps, using a modified SIM chip called a Turbo SIM. Commenters here seem to think this is a difficult solution.
Meanwhile the IPhone Dev Team, a loose collection of hackers organized through this Web site, says it is hard at work creating new hacks that will make it easier to install unauthorized applications, fix bricked iPhones, and continue to unlock iPhones.
The comment sections to our previous posts on the iPhone upgrade (here, here and here) have seen active debate over the legitimacy of modifying iPhones. Some argue that the hackers are simply defending their rights to use the hardware they bought. Others say that since Apple made clear that the iPhone could be used only on the AT&T network and only with its official software, the hackers simply shouldn’t have bought one expecting an open device.
From a literal point of view, I see the point of the latter argument. I’d have a hard time arguing that Apple misled iPhone buyers.
Even so, I’m not sure that Apple needs to be playing so tough. Apple’s policy is that if your iPhone has been turned into a brick, buy a new one. But couldn’t the company, at least, release software that restores iPhones to their original subservient state?
More important, I’m not sure it is a tenable position in the long term to maintain such an adversarial role with a group of customers. The iPhone captures people’s imagination because it offers a flexible interface on a small device, and there have been dozens of nifty applications developed for it so far.
If Apple doesn’t create a way for developers to create new applications, this war will get uglier. But we’ve seen this musical before
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