Apple Claims Jailbreaking An iPhone Is Copyright Infringement
from the jailbreak-this dept
Apple has remained pretty quiet, on the whole, concerning the fact that people "jailbreak" their iPhones to allow them to run non-Apple-approved software on the devices (or to use them on other mobile carriers). However, in responding to an attempt by the EFF to get jailbreaking (and other phone unlocking efforts) declared clear of any potential copyright claims, Apple has now officially said they believe that jailbreaking the iPhone is infringing on their copyright. This is troubling for a number of reasons. It's the same sort of argument that has been used by garage door opener makers and printer makers to prevent competition and interoperability -- which has been struck down repeatedly in the courts.As the EFF notes, if jailbreaking is determined to be copyright infringement, it opens up a whole host of problems. Automakers could, conceivably create "software" in their cars that only lets you fill up at their approved stations. Breaking that "software" to allow for "interoperability" would then be seen as infringement. Hopefully the Copyright Office sees through this claim and makes it official that jailbreaking is perfectly legal. It's almost ridiculous that we even need to have this discussion. If you buy the device, it should be yours -- to do with it what you want, including putting "unapproved" software on the device.
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Filed Under: copyright, dmca, jailbreaking
Companies: apple, eff
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We need another "Act"
http://en.wikipedia.org/wiki/Magnuson-Moss_Warranty_Act
We have the Magnuson-Moss warranty act, which among other things, kept car makers from invalidating warranties/requiring the use of OEM only or branded parts.
I don't understand why we don't to the same thing with technology and EULAs, esp for OSX only on Mac hardware, and only Apple approved apps on iPhones.
God knows, this clear fails the first sale test.
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Re: We need another "Act"
It does apply to the phone among other things as well. If they offer a warranty and claim is it broken by jailbreaking the phone (and it's not in the contract), magnuson moss would have been thrown around instantaneously.
We need one that is well done, to deal with preventing anti-competitive actions....that or just repeal the one that says that it's legal for corporations to lobby for their own anticompetitive benefits...I forgot the name of the letter for it.
that would stop so much of this industry BS.
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Re: We need another "Act"
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Re: We need another "Act"
Since the Magnuson-Moss warranty Act was passed there has been a major rise in corporatism in the US and it is unlikely that anything like it could be enacted today. There are even those who want to see it repealed because they believe that it interferes with the "free market". The theory is that manufacturers should be allowed to place whatever restrictions they want on products and that if people don't like the restrictions then they don't have to buy the products. In other words, "whatever the market will bear".
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Class Action Suit Against Apple and AT&T... maybe
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That's the only message being sent here. Any attempt to class them as illegal or destructive is only a distraction from the truth - there are useful apps that Apple doesn't wish to approve, and people are willing to hack their device in order to obtain them.
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They lock the phones with AT&T because AT&T agreed to cover part of the purchase price of the phone if they did. Otherwise an iPhone would cost 600+ dollars. AT&T makes their money back by locking you into a two year agreement that will gross between $1900-$2500 depending on your data plan.
As far as applications go, Apple is not a software company per say. They can't produce a shitty product like Microsoft, and then blame third party vendors or hardware manufacturers. Apple manufactures and supports the hardware and software; and they survive by virtue of being able to say things like "it just works."
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Oh...you mean like the original pieces of crap they sold as iPhones?
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As far as the article goes ... jumping from the Apple's layers to what an automaker might do it a huge stretch. Also you really need to get your story straight. Automakers, at least in the US, undergo a lot of scrutiny and I don't think that there has been a single case of anyone *jailbreaking* or even hacking the software that comes on their car. Considering how much of a modern car is controlled by the onboard computer, messing with it is close to insane.
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To say that consumers would show their dissatisfaction with a product by not buying it ignores the existence of various markets. This is consumer electronics, and more importantly, a wi-fi enabled, large-screen, touch-screen device that is basically a computer - so yes, people buy it knowing that it may lack functions out of the box, but with their own work and the work of others, they can get the machine to work the way they want.
In this instance, you can see how hacking really does increase the value of the device, how it represents lack of addressing the software market and how ignorant you are with the simple idea that a product must remain the same way it came from the box.
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Re: Re:
The device is still excellent, even if you have to use the locked version. But, additional applications really do unlock some fantastic features.
As an example: last.fm used to have a great feature available for "scrobbling" tracks you listen to on an iPod. This is currently not possible on a standard iPod Touch or iPhone because of some overbearing security features.However, it is possible again on a jailbroken iPhone. This app makes the device a lot more useful. It's not a deal breaker if this feature was not available, but my Touch is better for having jailbroken and installed this app.
I'm not doing anything illegal by jailbreaking the device, nor am I using pirated software. I simply want a useful application that Apple makes impossible for me to obtain through standard channels. In order to obtain this, I perform a modification to my legally owned hardware. I fail to see the problem with this.
As for the car reference - you have the right to modify your car in any way you wish. You will lose the warranty on the car and may lose the right to drive on public roads if you make dangerous modifications. But you should still have the right to do so without interference from the original manufacturer.
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My guess is that Apple wants to directly sue those people and companies creating the unlocking software and techniques, as those entities would not be parties to any license or contract. Thus, they could not be sued for breach of contract.
Obviously, copyright should not be extended for the sole purpose of allowing entities to sue non-parties under breach of contract.
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The point is if I sell you a license that says you can use my math instructions (software) in ways only I approve. Doing something not approved does not mean I have infringed on your copyright, its another issue that is just as bogus, but again it is not an issue that is about copyright.
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I can understand voiding warranties under, and having terms of sale. But the purchase of a physical item should be just that, an implicit transfer of rights over said object.
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Why do they care?
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Re: Why do they care?
It's understandable in a business point of view, but it really has bugger all to do with copyright.
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Re: Why do they care?
As far as applications go, Apple is not a software company per say. They can't produce a shitty product like Microsoft, and then blame third party vendors or hardware manufacturers. Apple manufactures and supports the hardware and software; and they survive by virtue of being able to say things like "it just works."
Also this gives them the ability to control what you can do on the phone, take tethering for instance. AT&T would be pissed if I wrote an app that routed the iphones wifi connection through the cell phone internet connection, and every computer in my house was running of my phones wifi.
They specifically forbid for the longest time third party browser for fear of security holes, a flash or active x engine ect ect ect.
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Re: Why do they care?
If you buy a subsidized phone from one carrier, you using this same carrier is factured into the price. That's why unlocked phones are more expensive. Unlocking a subsidized phone is thus stealing.
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Mac
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Re:
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Make it work for them..
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iToaster
The Apple iToaster(tm) has been around for years now, and they have successfully sued and/or jailed countless criminals for using bread products outside the iBread(tm) line. Hell, I remember the first time I broke the conventions of the DMCA by subverting my iToaster software and rigging it to toast a bagel...
The toast police were at my door within the hour, and I went through a lengthy interrogation with them until I was able to convince them that the bagel incident was a simple misunderstanding of the device's features, due to a lack of any real instruction manual. All that I had was that glib black pamphlet showing a bread slice with one bite taken out of it.
I got a slap on the wrist with the admonition that I'd not be treated so gently next time. Needless to say, all my toast these days is made from pure, unadulterated iBread(tm). And I LOVE it!
Sorry Steve, I was totally joking when I said cancer was God's way of punishing you for being such a close-minded corporate robber-baron.
Long live the toast police.
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Goodbye subsidized phones
Who is going to sell you a $500 phone for $200 upfront when you can immediately terminate the contract and switch the phone to another carrier?
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Re: Goodbye subsidized phones
Um. No. It would not. You can still be required to sign a long term contract on the service in order to get the subsidy.
That has nothing to do with jailbreaking.
Who is going to sell you a $500 phone for $200 upfront when you can immediately terminate the contract and switch the phone to another carrier?
Again, that has nothing to do with copyright.. but.. um. Ok.
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Re: Re: Goodbye subsidized phones
http://www.eff.org/cases/2009-dmca-rulemaking
Okay?
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Re: Re: Re: Goodbye subsidized phones
That doesn't support your point at all. Yes, you will be able to break the contract and switch your phone to a different provider (tech permitting), but doing so will then mean that you have broken the contract and need to pay the subsidy back. That's fair. And has nothing to do with the copyright question.
No one is saying you can't offer a subsidy to go along with a long term contract. They're just saying if you offer that, there should also be a fair and legal option to NOT accept the subsidy and unlock the phone.
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Re: Goodbye subsidized phones
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Re: Re: Goodbye subsidized phones
And modern phones are expensive because they contain color LCD touch screens, miniaturized processors, 3G, GPS, and WIFI chips, LiPo batteries, and so on. They're no longer phones, they're pocket computers.
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Re: Goodbye subsidized phones
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Apple #1 - Their goal, their belief, their attitude. Anyone and everyone comes dead last to their bottom line. Nevermind the people that actually buy their products, any complaints they may have on that front are irrelevant. Their bottom line is all they care about.
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jail breaking
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Reality Check time
It's a good thing there are no aftermarket devices that can be used to improve fuel efficiency, increase horsepower and torque, and increase overall engine performance. Oh wait, I can replace the 'fixed' chip in my Ford truck with a device that 'hacks' (or replaces) the signal and allows me to tune the engine performance to the task at hand (towing, freeway, fuel efficiency, etc). Guess I must be Insane in the Membrane...
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Re: Reality Check time
All of these discussions turn into fits of emotion rather than discussion of what the actual law is. If you want to rail against the law, fine, but you can't fault a company for pursuing their legal rights. Who started this fight? It wasn't Apple. They were happy letting people fly under the radar until someone ELSE decided they were going to push the envelope and agenda.
Oh wait, that isn't as sexy as screaming Apple sucks! God smote Jobs with cancer!
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Apple knows this, Jobs himself grew up in this very culture of tinkering. The trick now is not to get consumers to buy your gadget, it's how to get them to keep on paying for it. THAT is Apple's problem with jailbreaking of phones and iPods. It simply means that they don't get to charge you for software updates, or apps and they want the Government to protect that revenue stream. Jobs obviously forgets where he comes from because he should have known better than to think that this business model would fly unopposed in this day and age. It's a battle they're just not going to win. You can not go to war with hackers and expect to come out on top. Not gonna happen. Next they'll be fighting for the right to disable devices that don't conform.
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Trial balloon
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Re: Trial balloon
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what a bunch of crybabies
Corporations have a fiduciary responsibility to their shareholders to care most about the bottom line. Whatever idiot said that was a bad thing for Apple to do should really go move to a socialist commune. And the jackass with the cancer comment, scum.
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jailbreaking
I do consumer rights class actions cases (google my name to see some of the cases I have brought, e.g. the original Blockbuster Late Fee case, the original American Family Publisher Case, the U.S. Robotics 56k modem case, the Sony 1080p case, etc.) and I believe the problem is not addressed by copyright infringement but by good old fashion consumer unfair trade practices.
I believe that Apple maybe engaging in unfair competition by tying software designed by it to its products.
Basically by restricting the ability for 3rd parties to design and develop software for their devices they are crushing competition and damaging consumers.
There may be a claim under § 5 of the Federal Trade Commission Act, 15 U.S.C.S. § 45 , § 3 of the Clayton Act, 15 U.S.C.S. § 13a, § 1 of the Sherman Act, 15 U.S.C.S. § 1 as well as State law.
See for example the case of Jefferson Parish, 466 U.S., at 12, 104 S. Ct. 1551, 80 L. Ed. 2d 2, "[o]ur cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms."
A tying arrangement is defined "as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier." Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958); Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461-62, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992).
Tying arrangements have been found to be "unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected." Northern Pac. Ry., 356 U.S. at 6.
A tying claim under the Sherman Act requires that the plaintiff prove that a seller had substantial economic power in the tying product's market, and an anticompetitive effect in the tied-product market. Highland Capital, 350 F.3d at 565 (citations omitted), Eastman Kodak, 504 U.S. at 462 (arrangement constitutes impermissible tie under § 1 of Sherman Act "if the seller has 'appreciable economic power' in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.").
The Supreme Court has "condemned tying arrangements when the seller has some special ability -- usually called "market power" -- to force a purchaser to do something that he would not do in a competitive market. . . . When 'forcing' occurs, our cases have found the tying arrangement to be unlawful." Jefferson Parish Hospital v. Hyde, 466 U.S. 2, 13-14, 80 L. Ed. 2d 2, 104 S. Ct. 1551 (1984).
"From the standpoint of the consumer -- whose interests the statute was especially intended to serve -- the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package." Id. at 15.
The Sixth Circuit has adopted the following three-step analysis for determining whether a tying arrangement is likely to cause such an anticompetitive effect: "(1) the seller must have power in the tying product market; (2) there must be a substantial threat that the tying seller will acquire market power in the tied-product market; and (3) there must be a coherent economic basis for treating the tying and tied products as distinct." Hand v. Central Transp., Inc., 779 F.2d 8, 11 (6th Cir. 1985).
Under traditional per se analysis, restraints of trade were condemned without any inquiry into the market power possessed by the defendant. However, under current per se analysis, the antitrust plaintiff must show the seller possesses substantial market power in the tying product market and that the arrangement affects a substantial volume of commerce in the tied market. Kodak, 504 U.S. at 462, 478-79. The two theories differ in only one respect - the per se analysis dispenses with proof of anticompetitive effects. PSI Repair Services, Inc. v. Honeywell, Inc., 104 F.3d 811, 815 n.2 (6th cir. 1997) (citing 10 Phillip E. Areeda et al., Antitrust Law P1760e, at 372 (1996)).
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