With One Billion Apps Downloaded, Should Apple Be Worried About iPhone Hackers?
As I write this post, about 965,000,000 iPhone applications have been downloaded from Apple's App Store. Apple is celebrating by giving away a variety of free Apple products to the lucky billionth downloader. Nevertheless, Apple wants the right to sue iPhone owners who jailbreak their phones.
However, as law professor Mark Roark points out in a column published in the Daily Journal (subscription required) yesterday, [t]here is just one problem. The law does not necessarily afford Apple a remedy. See Mark L. Roark, Will iPhone Network Hacking Shake Apple to Its Core?, L.A. Daily J., Apr. 15, 2009, at 5.
Presently, according to Roark, Apple cannot sue under the Digital Millennium Copyright Act ("DMCA") (that may change in October). However, Roark suggests that Article 2 of the Uniform Commercial Code ("UCC"), may allow Apple to maintain control of endusers' behavior through the terms of the iPhone's warranty. In short, Apple's warranty for the iPhone could include enforceable terms stating that if a user alters the hardware or software, the user loses the warranty. See Id.
Finally, Roark discusses some empirical research he conducted with 150 individuals. The results essentially suggest that the threat of losing the warranty is enough to deter a decent percentage of consumers from altering their iPhones, depending on how valuable the consumer perceives the warranty to be. See Id.
In essence, Apple, or any other device-maker, can lawfully maintain a certain level of control over their products, without resorting to threats of litigation because it can still reduce the value of the device post-purchase. But, for Apple it doesn't seem to be enough.
- Apple's warranty for the iPhone most likely already prohibits jailbreaking.
The Genius Bar at your local Apple Store probably won't provide service for an iPhone that is obviously jailbroken because the warranty is already rather restrictive.
The relevant terms of the iPhone 3g's warranty already includes the following language:
This warranty does not apply...to damage caused by operating the product outside the permitted or intended uses described by Apple; [or]...to a product or part that has been modified to alter functionality or capability without the written permission of Apple. See Apple's Limited Warranty for the iPhone 3g (warning: pdf).
Apple also has similar provisions in its warranties for its other products although they generally aren't quite as strict with regard to software.
- Jailbreaking an iPhone is not the same thing as unlocking it.
One thing that Roark overlooks in his column is that there is a distinction between jailbreaking and unlocking an iPhone. The process of jailbreaking entails altering the iPhone so as to allow it to run applications other than those from Apple's official App Store. Unlocking, on the other hand, refers to enabling the iPhone to be used on other cellular networks. Presumably, unlocked phones threaten the profits of both Apple and AT&T whereas jailbroken phones really only threaten Apple's monopoly over the software distribution channel.
- Apple contends that merely jailbreaking an iPhone should be illegal under the DMCA.
In February, the Electronic Frontier Foundation ("EFF") submitted exemption requests to the U.S. Copyright Office as part of the 2009 DMCA Triennial Rulemaking. One of them pertains specifically to jailbreaking.
- Proposed Class #1: Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset. (The entire text is available here as a PDF).
In its opposition, Apple argues that the EFF is trying to use the DMCA exemption to change Apple's business model.
Specifically, [the EFF] seeks through the proposed exemption to clear the path for those who would hack the iPhone's operating system so that a proprietary mobile computing platform protected by copyright can be transformed into one on which any third party application can be run, without taking account of the undesirable consequences that would ensue from the transformation. (The entire text of Apple's Comment is available here).
The Copyright Office will issue its final rulemaking order in October.
- So, should Apple have the right to sue individuals who run unapproved third-party software on their iPhones?
I'm still somewhat undecided. In any case, I don't think it would be particularly worthwhile for Apple to start suing its customers. I doubt that the threat of litigation will prove an effective deterrent to iPhone hackers. Moreover, both the EFF and Apple agree that there are only a few hundred thousand jailbroken iPhones even though millions have been sold.
At best, Apple may get a few popular websites to shutdown. At worst, Apple will find itself in a position similar to that of the RIAA.
