Tuesday, May 4, 2010

How Apple is breaking the law with the App Store

Yesterday we learned in the New York Post that the Federal Trade Commission and The Department of Justice may be considering investigating Apple regarding its 3.3.1 decision which essentially says that developers can only use Apple tools to build apps sold in the App Store. The question is on what basis might the government move forward. What would be valid grounds for a serious government investigation?

Yesterday, John Paczkowski at All Things Digital, wrote that he didn’t think there was much of an opportunity for a government suit because Apple is not big enough in the cell phone business to be considered a monopoly, a requirement for invoking antitrust law. I agree that Apple is not big enough for the issue to be viewed in the context of antitrust. But I do think that there is a case here, outside the antitrust context.

Let me explain.

The problem is not that Apple refuses to sell apps made with non Apple tools, but that to jailbreak your phone to run non App Store apps is grounds for voiding your warranty. This is problematic because if there were no fear of voiding warranty, undoubtedly many customers would jailbreak their iPhone, There would be alternate markets for iPhone software, and there would be a truly competitive marketplace.

Ok, but why is this a problem legally?

Voiding a customer’s warranty must be made on some reasonable basis. Every consumer has a common law right to a warranty on a non-discriminatory basis. For example, if Apple said your warranty would be breached if you bought software from a woman, or a black person, or from someone who we don't think is attractive, that would clearly be a problem.

So the question is where is the line? Clearly racial or gender discrimination would be problematic. But it is also problematic if the basis for voiding the warranty is purely to prevent competition.

In other words, a warranty voiding offense needs to be, on some level, reasonable. It must be tied to some reason why Apple couldn't service your phone. But clearly, in a few seconds, an iPhone can be wiped clean, no matter what software was put on it, so what software vendor you buy from, or whether that software is sold through the App Store cannot be a valid basis for warranty voiding.

Effectively, Apple is using the iPhone warranty, a right you have as a purchaser regardless of their stated policy, as a competitive, or should I say, anti-competitive weapon. I don’t think there is any case law on this, because I don’t think using competitive, or “aesthetically unpleasing” software has ever been used as a basis for voiding a warranty, but I strongly believe that Apple would be on the losing side of this as a test case, because it is clearly what is known as restraint of trade.

Restraint of trade is, essentially, preventing someone from engaging in reasonable commerce in order to prevent competition. You do not need to be a monopoly to be considered to be engaging in restraint of trade. Restraint of trade is perfectly legal when the entity being restrained has been compensated. For example if you sell your business the contract can state that you can't open another competing business within 50 miles for five years.

But in the Apple case, consumers and third party vendors are being restrained from buying and selling apps other than through Apple, at risk of voiding their warranty, and neither group is getting any compensation. It is not reasonable for warranty decisions to be made on the basis of from whom you have purchased software, unless there is some good reason that purchasing that software actually makes the hardware unserviceable.

Additionally, I think that Apple's continuing efforts to "break" jailbroken phones with each new software update is legally problematic. Its one thing if, in the process of upgrading a phone's software, they happen to break something. Its another thing if Apple engineers are being instructed to analyze jailbroken phones in order to purposely break them. Effectively, they are purposely breaking their competitors applications.

As I see it, Apple’s actions here certainly constitute reasonable grounds for government investigation. Some may argue that Apple has the best intentions here and only wants to protect its customers from bad applications. But good intentions do not always mean lawful intentions, so even Apple’s defenses, silly as I think they are, don’t really address legality in the context of restraint of trade.

50 comments:

  1. xbox, ps3, wii?

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  2. @anonymous

    hmm... not familiar with running software voiding warranty on any of those systems.

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  3. Where did this come from?

    "But clearly, in a few seconds, an iPhone can be wiped clean, no matter what software was put on it, so what software vendor you buy from, or whether that software is sold through the App Store cannot be a valid basis for warranty voiding."

    And why would wiping an iPhone be justification for anything you state after?

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  4. @anonymous. if you dont understand it, I suggest you read it again.

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  5. Wii warranty for US & Canada says: "THIS WARRANTY SHALL NOT APPLY IF THIS PRODUCT: (a) IS USED WITH PRODUCTS NOT SOLD OR LICENSED BY NINTENDO (INCLUDING, BUT NOT LIMITED TO, NON-LICENSED GAME ENHANCEMENT AND COPIER DEVICES, ADAPTERS, AND POWER SUPPLIES)"

    Which is very much like "you must use software from the App Store" and yet no-one is bitching at Nintendo.

    Additionally, when you do a system update, it specifically warns you that unauthorised modifications to save games will be removed:
    Screenshot

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  6. Screenshot of the "may cause inoperability" warning - very much like "jailbroken iPhones might break with this update".

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  7. @rjp why wouldnt they include the item "game software" in the list if they meant to include it. That sounds like a list of hardware attachments.

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  8. "This is problematic because if there were no fear of voiding warranty, undoubtedly many customers would jailbreak their iPhone"

    Oh, really? How do you know that? I call BS #1 on this.

    "Effectively, Apple is using the iPhone warranty, a right you have as a purchaser regardless of their stated policy, as a competitive, or should I say, anti-competitive weapon."

    That's BS #2. Just as speculation and a pretty weird one.

    "Additionally, I think that Apple's continuing efforts to "break" jailbroken phones with each new software update is legally problematic. "

    No shit! You mean jailbreaking is legal and bootleg apps are legitimate competition?
    I don't know what are you smoking, but don't try to bring that stuff through customs.

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  9. Looks like a few Apple trolls have found their way on to your website. However, their arguments are (like the arguments of most Apple apologists) a little out of left field.

    It's possibly that Apple is verging into antitrust territory, and with various issues around iPhone lock-in, Apple may very well be found to have broken the law. Good post, and let's hope somebody pursues this angle.

    In the meantime, I can only hope that Apple doesn't send their SWAT team goons to break into all of hour homes and unlawfully seize our equipment the way they did with Gizmodo's Chen. Gangland politics, baby. Welcome to the new Apple.

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  10. It's cliche, but I like car analogies. Ford may not restrict where I drive my car; it's a purchase and property rights transfer is clearly defined by the UCC, no Ford license can override it. Apple products are the same. Jailbreaking and apps not approved by Apple ("bootleg"?) are simply an owner exercising property rights and are clearly legal.

    However, Ford has every right to say "you exceeded the towing capacity of the car, so we're not fixing your transmission." Similarly, Apple has a right to say they're not offering support or warranty for OS mods or apps they know nothing about. The difference is that Ford doesn't stop you from trying to tow something too big, nor do they use that as an excuse to avoid fixing an unrelated item under warranty. Apple's design restricts your property rights and then looks for excuses to shed responsibilities.

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  11. Interesting post. It seems to have made some people really *angry* at you. [raises eyebrows]

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  12. If this applies to xbox, ps3, wii, they should be sued too. Its time to clean the market.

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  13. But Ford will void your warranty if you remove the rev limiter on your truck. The reason: they put the limiter in there to stop you from wrecking the engine by over-revving it. If you show up at the shop with a worn-out engine after 10k miles and you've still got the limiter on, they know it was their fault (bad build quality) and will fix it. If you show up with a worn-out engine and they know you're removed the limiter, they know there's a good chance you broke the thing yourself by abusing it.

    That's the situation with the iPhone. Bad software can do bad things to the phone: keep the radio power jacked way over design limits; burn out the flash memory with constant write cycles; even burn the whole unit by keeping the processor pegged despite overheating. It's the software itself that protects the hardware from abuse.

    In short: it's probably legal to jailbreak your phone in the same way its legal to change the valve timing on your car, but it's also completely legal for Apple to say that the consequences are not their problem.

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  14. Rob is right.
    It is possible to break hardware using software, even software that is not meant to break hardware. Current terms makes Apple non-responsible for developers selling something outside itunes and breaking your iphone.
    If you want to use equipment that is not meant to be used that way (jailbroken) you take full responsibility for its condition. Thats sounds fair for me.

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  15. I think the most likely cause of a investigation is the way that Apple are attempting to prevent people from developing software that works on more then just their systems.

    The comparisons with the games console market don't make sense as while the main three do require all software to be signed by them (and pass certain requirements to do so) they do not actively try to prevent developers from building abstraction layers to make targeting multiple devices easier.

    In the console world companies sell products that hide the console specific code from the developer so you can decrease the cost of producing a game on multiple platforms, and while these aren't perfect they help developers keep their costs down.

    The recent changes to Apple's legal agreement attempt to ban any such tools. So, for instance, creating an app for the iPhone and an Android device pretty much requires writing two apps. Adobe's cross-compiling tool aimed to enable this which is why the license change was made just before the release.

    Assuming for the moment that the iPhone has a larger share of the market, this restriction makes it less likely for a company to produce an android app, thus helping Apple to maintain their current position.

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  16. Very clever analysis. Kudos.

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  17. A long and detailed and well written analysis, but totally wrong.

    Another commenter came close to saying this, but let's ask the question clearly. There are now millions of iPhone 3G phones that are out of warranty. Is there any evidence that those users are jailbreaking their devices more than say 3GS users who are still under warranty? If the evidence exists I haven't seen it even anecdotally, and given that I develop iPhone apps for a living I watch this space pretty closely.

    You are also completely wrong about updates that fix jailbreaks as legally problematic. Do you even know what you do when you jailbreak a phone? You exploit a known vulnerability in the software to force it to run different code than intended. Of course Apple patches those holes. Not only should they, but they have a duty to their customers and vendors (Content suppliers) to put forth a best effort to keep the device safe and secure.

    So you might think I'm anti-jailbreak, but I opened up my original iPhone once I got a newer model. My point is your legal analysis is completely wrong, and I don't think average consumers are terribly interested in cracking their device in or out of warranty.

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  18. It's an interesting view Hank. I'm not sure it will hold in a court of law, but I do think that Apple is a monopoly in App sales. They've cornered the market in terms of the number of mobile applications distributed in this way. This is the reason it's so problematic that they are locking out software development tools that allow one to target multiple platforms. Doing so creates an unfair advantage to their already dominant position, making it cost prohibitive to target any other App store other than Apple's.

    Chris Allen

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  19. @Russell

    I think your game console comparison is a little off. Basically games use a common set of libraries such as physics engines that are common across multiple platforms. Developers of the games also use common assets and source code (written in c) across all versions of their games. Then they layer on the specific code for the given platform.

    All of this is still done in the iPhone space as well. In fact, the SDK itself ships with many common libraries such as libxml and libsqlit, which are c based libraries for common functions needed by many developers. Even games on the iPhone use some common c based engine code just like on the console, although someone somewhere has to compile those libraries for the given architecture of the system.

    As far as I know, you can't create games for any of the consoles without using the development kit from the console maker. When the console is new, those kits can cost thousands of dollars. Typically, the price falls into the consumer range once the platform runs out of steam and the company doesn't care about that platform anymore.

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  20. I'm not that familiar with jail breaking, but doesn't it involve overwriting the firmware? If so, couldn't a bad attempt at jail breaking render your device a brick? I could see where Apple would be justifiably weary of that...

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  21. Why does your title emphasize the App Store as the cause for criminal activity then almost exclusively refer Apple's policy that jailbreaking voids the warranty?

    The App Store and jailbreaking are two completely separate issues. Sure both involve putting software on your phone but not letting a vendor in your store is different from not letting a user put whatever software they want on their device.

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  22. You need to brush up on your legal knowledge. First, look up what the "common law" is. Here's a hint: it was the state of the laws prior to their codification.

    Second, there was no common law right to a warranty.

    Third, if by installing a jailbroken OS onto you iPhone, Apple determines that you have sufficiently tampered with the operation of the device, they can void your warranty. There is a reason. Jailbroken phones can be hacked by sending emails, sms messages, etc. to them to obtain information for the phone. If Apple upheld the warranty for a jailbroken phone, it's possible that they could be joined in a lawsuit under FRCP 13, 14, 18 and 20 and subject to liability for "allowing" phones to be jailbroken. It's pretty obvious why they void warranties for jailbroken phones, and it's not because they are trying to eliminate the competition. If anything, having a more open OS would attract more people from the iPhone and away from Android.

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  23. @Ed

    The most important bit in the changes is: "Applications that link to Documented APIs through an intermediary translation or compatibility layer or tool are prohibited".

    This clearly states that you are not allowed to have have any layer in your code that tries to wrap the iPhones API in a way that makes cross platform development easy.

    Your physics engine example is fine as it doesn't wrap any functionality of the SDK, it adds a new feature instead.

    If however, you had an abstracted sound API that wraps around the one that Apple provides to make it easier to port a game from another device this would not be allowed.

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  24. It seems like Apple may well be changing the license to prevent any action:
    http://www.electronista.com/articles/10/05/03/apple.could.dodge.ftc.complaints.with.sdk.change/

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  25. @Hank: Rob is right, jail breaking an iPhone opens the possibility that something can damage the iPhone. This is possible in so many ways that it's not practical to list here...or in the Apple warranty.

    In answer to the question you pose as your email address (Why does everything suck?): You need an attitude adjustment. Take a look at:
    http://www.ted.com/talks/lang/eng/david_logan_on_tribal_leadership.html

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  26. I'm totally against Apples policy, but there is nothing illegal about it if its not antitrust. I can sell you a product and say and long as you use this product in a manner that I approve, I will provide you with a warranty. Warranties are not a right.

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  27. """"Every consumer has a common law right to a warranty on a non-discriminatory basis."""""

    Honestly, I don't see how what Apple is doing is in any way discrimination in this context. To me this is no different than what video game consoles makers and others have done over the years. But because this is Apple, everybody all of a sudden has to have an opinion on this. I strongly disagree with Apple's App store policies, but I think they have a right to do what they want in this instance. Note that Apple isn't sending the police after you if you jailbreak the phone, just that they're not going to service it if you do something wrong that breaks it. Seems very reasonable and legal to me from their perspective.

    The government should spend more time investigating real threats to our lives and privacy; Google Buzz, DirtyPhoneBook and Facebook and less time interfering with the operation of the free market. Just my opinion.

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  28. Three years ago Apple wasn't selling an iPhone, naysayers were all over it saying it would not work, would not be as enticing as Jobs described it, would fail, would never catch on in meaningful numbers. Now, with, what, 20% market share of SMART phones, Apple should be sued because they have become successful and they actually care about the customer's experience?

    I will never understand people. You have the right NOT to buy an iPhone. You have the right NOT to develop for the iPhone. Use it if you don't like it. It's pretty simple.

    I'm sorry Apple is so successful now, after everyone said they wouldn't be. I guess Apple can't win.

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  29. Hank, you are logically chasing your tail; your arguments are delusive.

    Apple is following a long history of business practices which have been confirmed by law. Apple, like any other manufacturer, can set the conditions under which it determines abnormal usage which invalidates its warranty.

    The demand that developers use Apple's IDE tools will not be found illegal. The demand that users not jail break their iPhone is not illegal. The demand that users purchase their applications from Apple's App store is not a monopoly; there are too many examples in history, sustained by the courts, where businesses expected exclusive rights. Apple need not be reasonable as you defined the term. It has a warranty contract with you.

    You are letting your desires overwhelm your judgement. Any court would look at your arguments and say, "If you don't like Apple's conditions, then buy elsewhere." If you say that the iPhone is a unique product, then the judge would say that, "It is unique because Apple controlled it from beginning to end. If you choose to adulterate the product, then you must do so by taking on all risks. " Thus, your warranty is void. Apple owes you nothing, because you broke your promises.

    The problem is that America is filled with self important, selfish, amoral people like you. They want to hold other people to contracts which they reserve the right to break, willy nilly.

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  30. Apple has claimed that Flash on their mobile devices drain battery life, is a security risk, and segments their developers into camps causing their development and upgrade cycles to slow down Apple software innovation. These reasons may be enough to fight the argument that they are being anti-competitive, especially when companies such as Microsoft are backing this idea and promoting HTML5 (they have their own motivations for doing so).

    I don't really agree with Apple's assessment but you only need to look as far as Android to demonstrate some of the claims they make against Flash. Android apps do lack much of the visual quality of iPhone apps, the hardware is so-so (IMO this is the manufacturers issues), and the developer community is segmented and held back (IMO this is simply because updating the Android OS is far less consistent then the iPhone, less than 1/3 of the Android users have the latest version of Android). It's not direct evidence but it may be enough to make their case. Combine that with the fact that Apple still has large competitors with more / equal market share and I have a real hard time seeing the DOJ being able to argue that this speedy and highly innovative market is being held-back by anti-competitive practices.

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  31. The author writes: "The problem is not that Apple refuses to sell apps made with non Apple tools..."

    It is inaccurate to say that Apple refuses to sell apps made with non Apple tools. This is as common misinterpretation of Apple's guidelines. According to Apple, apps can be made with Objective C, or C, or C++. If the author expects to be taken seriously, he should either remove the clause (which implies that Apple restricts developers to using only its own tools) or correct the information.

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  32. Your argument relies on the premise that Apple is only selling a piece of hardware. I think they would claim (rightly) that what they are selling is a system composed of hardware, software, and services. (Thus, if you visit an Apple store with a software problem, they will help you under the warranty.)

    Given that, if you jailbreak the phone and install unauthorized software, you are tampering with the product as a whole, and it is reasonable to void your warranty.

    Now, it could be argued that if you wiped your jailbroken phone and restored it to standard software, there would then be no grounds for voiding the warranty. In reality isn't that that the case already?

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  33. I think there is ground for on antitrust case because apple does have a monopoly on the smartphone and tablet device industry

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  34. I agree with most of you logic except I find one flaw. All of it is predicated upon a narrow definition of "Market" that does not exist in the real world. And that, is what the IP lawyers will use.

    Apple is indeed a monopolist in it's own world, that world must be much bigger before it becomes wrong.

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  35. I do not agree on the voided warranty issue. I know most phones void warranties if you open them or you cannot mod a game console without voiding the warranty. Most products do not let you temper with them and hacking the OS is surely tempering.

    I am also thinking that locking developers into using their developer tools, which are completely free, is a gray area. I have done work with Java and .NET and while Java has many developer tools, .NET typically works around their single developer tool Visual Studio. Having one strong IDE with strong support for the platform does help me build better apps. And Xcode and Interface Builder are actually pretty good tools I am happy to use them.

    I would say that blocking some types of apps from the App Store and ultimately the consumer is the real issue. Google Voice is a good example. I personally would like Apple to do basic technical tests on an app to verify an app does not use private APIs which are not stable and finalized and prevent apps which are just garbage and crash a lot from being in the App Store. But I would like that done with automated tools so it is done quickly. (instantly) In the 3.2 version of the developer tools do some of these automated testing are now available to the developer. It is a good step forward.

    Once the review process is based purely on technical grounds, which is not subjective at all, I would like apps that pass that criteria to make it into the App Store. From there I would put very new apps into a probationary period that allows consumers to pass judgement on the new apps. They would have a certain amount of time (maybe 30 days) in order to get their 5 star rating to at least average 2 stars. If it falls to just a 1 star rating (due to consumer ratings) I would make it available to be cleared from the App Store. This is how it works in retail stores where there is limited shelf space and weaker products are removed from the floor.

    I personally do not want a bunch of junk apps in the App Store that distract from the good apps. Some may argue that this is not necessary. But for Apple they have worked hard to delivery a better user experience than what you get on other platforms. I want them to keep that distinction.

    With these adjustments the consumers would have a say. But I am not sure if I would still want Apple to block Flash generated apps or even Mono Touch apps. I wish there really was a strong multi-platform option, but until Flash can solve the high cpu and battery usage. If those technical issues were eliminated maybe the only thing left would be the platform abstraction.

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  36. Some of you are laboring under the misconception that a monopoly is illegal in the US. That is not so. A monopoly can be attained legally through the incompetence or bad judgement of your competition.

    Alcoa Aluminum held 94% of the world market in Aluminum from 1898 to 1942. Every time that Alcoa developed a technique which lowered the manufacturing cost of Aluminum it dropped its price enough so that it paid no one to invest in a start up Aluminum plant. Despite this, the FTC investigated and attempted to prosecute Alcoa for thirty years without success

    The Sherman Antitrust Act is quite clear. Having a monopoly is not enough; you must also misuse your power to exact exorbitant prices from customers while punishing trading partners and competitors. Alcoa never did this so they were safe from prosecution. Apple is not doing this either, so it should be safe despite a hostile attitude toward businesses at the Justice Department.

    The closest correlation to Apple's Application store is the third party parts market in manufacturing. A manufacturer will publish the specifications of parts used in its products. If the part supplier does not meet the specs or it has too high a price, then the manufacturer will not purchase from them. If the part proves to have hidden flaws, then the part will be recalled and the third party supplier will bear most of the cost.

    The manufacturer needs to be equitable between these vendors, but the final decision is the manufacturer's. What would happen if these third party vendors got up in arms and disputed the manufacturer's right to set specifications, prices and terms? Most likely, the manufacturer would dismiss them all and start up making the parts themselves.

    Do you want Apple to disallow third party applications? It is in their legal power to do so. The developers who want to dispute Apple's authority need to get busy creating some competition for the iPhone or iPad. If these disgruntled people really have a case then they should be able to out compete Apple. I would guess, instead, they are merely jealous incompetents.

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  37. Jailbreaking an iPhone allows untested code to be put in control of the baseband RF hardware. This can cause problems on the cellular network and voids the FCC license for the phone. The FCC license is granted for the tested configuration of the phone's hardware and software and Apple is obligated to ensure that the software updates to the phone continue to keep the phone within FCC limits for things like transmit power and cellular network compatibility.

    Once an iPhone is jailbroken, Apple can no longer guarantee the phone meets FCC certification. I'd argue that it is almost mandatory for Apple void the warranty under such circumstances.

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  38. I don't see how Apple is breaking any laws when you're not even forced to use an iPhone. They don't have a monopoly in that market, and even if they did, that's not illegal either.

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  39. If there is no law or case law against Apple's actions - as you clearly state - then you are completely wrong. Apple has done nothing illegal. Period.

    Everything you say is completely speculation and opinion. You have a right to your opinion. But it does not at all prove that Apple is breaking the law.

    There is zero case for restraint of trade. Any app developer can easily sell their wares on Android, Symbian, Blackberry, Palm, and any other platform. The iPhone, after all, is only a small fraction of the cell phone or smart phone market.

    Being unfair is also not illegal. Its business.

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  40. What a wild ride. I especially like the comment about being amoral for pointing out a (possible) legal problem of someone else. Brilliant! Ah, yes, and I seriously like the original analysis; it's probably worth digging (I'm not even remotely a lawyer).

    Voiding iPhone warranties might work in USA, but is problematic in Europe, where customers have a right for a warranty by law. Apple can enforce their policy with the iPhone, since they claim a jailbroken iPhone might threaten the safety and integrity of the wireless phone service network (being a radio transmitter, with all the special licenses attached). Its a whole different story with iPods and iPads, since that trick would not work for WLAN. We'll see what will happen here.

    And of course AppStore and jailbreak are connected, just not as simply as some people think: Jailbreaking is the only way to get your own software on your own device without getting it thru AppStore. That's one of the two fatal flaws of the iPhone (the other is the carrier lock-in).

    Finally: The German Apple partner, Deutsche Telekom, was successfully sued to provice unlocked iPhones if requested. They do sell unlocked iPhones now, prohibitivly expensive.

    So, even if something is written in a contract, it might not really be legally binding. Because unfair sometimes means illegal.
    :)

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  41. This socialist agenda seems to be catching on even in the dev community. It's pretty sad too, as once upon a time, the dev community was looked up to for their high regard to logic and reason.

    Anymore, if someone doesn't like something, they run to their government, to get their government to hold guns to people's heads, to force them to make the product the way you want it.

    Why not "give peace a chance" ? At least try and ponder a non-violent method to get what you want. Maybe make your own company with the products you would like ? Seems alot more peaceful than quickly jumping to the "hold the gun to their heads" option.

    The market does not lie. It tells you exactly what the people want. If you don't like Apple's products, then simply don't buy them.

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  42. After reading all 41 comments I'm appalled at those who almost seem to enjoy the limit to their personal property rights. Property rights IS the issue here, not antitrust or anti-competitiveness. Hank I thought your post was insightful but ultimately missed the mark in that respect.

    It is historically difficult to find an actual example of a monopoly in history that didn't result from government subsidy or regulation in the first place, including the original train barons. That said, the most effective bullies and dictators tend to be those who a good chunk of people LIKE. I thought Grant K's comment was the most...disturbing... in this respect. If you want to keep "bad" software off a device, the market solution is called antivirus software... then you, the consumer, can decide what "bad" actually is. I don't need a "tribal leader" to tell me that.

    Apple does seem to me to have quite a lot of bullying characteristics. But a lot of people apparently want well-designed products and don't care that much about their freedom or about platform openness. That is their choice, I guess.

    Apple may be operating within the law. What we *should* be asking is: is the law just? Sticking up for Apple because jailbreaking really does put the iPhone "at risk" misses this question.

    I support true free markets, and I think that the concept that you can do whatever you want with your property is paramount. Free speech and other rights ultimately rest on inviolable property rights. Apple would probably counter: we can do whatever we want with our warranty.

    And that may be true, although (a)I think it is righteous to set standards on what kind of "magic contracts" you can have people sign when buying a device, like EULA's, and require something like a signature if those standards are going to be changed; and (b)many of these big companies support laws like the DMCA which actually make it illegal to do things like jailbreaking (if not jailbreaking itself...yet).

    These complexities are why we need good lawyers.. hopefully freedom-loving, market-loving, consumer-friendly lawyers who can give us a framework for dealing with this. Unfortunately the good guys seem to have been losing a lot lately, and I do fear the manipulation of the system by big companies and their armies of lawyers

    My bottom line is this: antitrust is stupid; people should not buy Apple products if the platform violates their own preference for openness. If everyone just thought about how much their digital freedom is worth, Apple might get some positive market pressure and the world might be a happy place.

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  43. Just to be clear Hank, you have no legal background or expertise, correct? So this is just some random theory you made up. You did manage to get a few hits on your otherwise dormant blog, so nice job riding Apple's infamous coattails of free publicity.

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  44. Chase -- That is the problem with our society in general. In general, most Americans believe that rights are synonymous with privileges.

    It doesn't matter if 100% of the people vote to infringe on our individual, inherent rights. It doesn't matter if SCOTUS upholds unconstitutional legislation. Laws that are repugnant to the Constitution are void, and are not to be followed.

    Too many folks believe We the People live in a democracy, which is nothing more than tyranny by many. We the People live in a Republic, where the major difference from a democracy is the people cannot vote to infringe on our individual, inherent rights.

    All of our individual, inherent rights are derived from our individual, inherent right to own property, beginning with our own bodies. The Constitution acknowledges the existence of our individual, inherent rights. Therefore any legislation that infringes on that topmost right in the hierarchy, our individual, inherent right to own property, is clearly unconstitutional.

    The 16th amendment is clearly unconstitutional.

    You can't have *both* a construct which acknowledges the individual, inherent rights of Homo sapiens, and then have amendments to those constructs which infringe on the individual, inherent rights of Homo sapiens.

    Your property is just that. It is your property. Your body, your home, your land, and the fruits of your labor are all your property, and therefore it is completely under your jurisdiction. If it wasn't completely under your jurisdiction, then you wouldn't truly own it.

    If you would like to keep the fruits of your labor, it is entirely up to you. You have complete jurisdiction over your property, as there is simply no one else to ask. Who would you ask if you could keep your own property ?

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  45. We each, as Americans, have an unlimited (as with all rights), individual, inherent right to contract.

    Read the fine print, and vote with your dollars, and the free market will give you EXACTLY what you would like.

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  46. Apple's definitely spitting on the spirit of anti-trust laws, if not legally large enough to be considered a monopoly

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  47. Great article. The Cult Of Apple's presence made reading the comments less enjoyable. :)
    You are spot on with you conclusions. Apple is most definitely engaged in restraint of trade. And I have heard rumblings that a few states are looking into this same thing but are currently paused waiting to see what the FTC/DOJ might do.

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  48. @leef I totally agree! If it was Microsoft doing this then it wouldnt be allowed at all, but because it's Apple then it's completely fine. Think back to the furore MS had with the EU over IE being bundled with Windows...Apple seem to be able to do whatever they please. I know it's down to market share, but hypocrisy is still hypocrisy.
    Companies dont like to lose their control. Apple makes money off the app store so they're just trying to make sure they get paid.

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  49. Stupidest article I have ever read.

    Manufacturers have a right to create and 'warrant' their SYSTEMS. That is what the iphone is. It isn't just a piece of hardware that apple have created. It is a digital system that relies entirely on the software to function.

    Suggesting that apple is breaking the law because they will only warrant the software they have created and developed FOR THEIR HARDWARE is just plain ignorant. No company has the resources to allow anyone to hack the software component of their product with third-party (and often dubious) software then say "Ok, you broke it... we will replace it".

    The legal issue ends with your purchase power. If you don't want to use the iphone as it was designed and sold... don't buy it! If you choose to ignore it, buy an iphone then fuck it up by hacking it... tough titties.

    You can't piss on intellectual/copyrighted/patented technologies and expect the law to defend your activities.

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