Apple sells you an iPhone with a contractual restriction that limits you to using one and only one telecom carrier.Â You hack the iPhone to unlock it, so that you can choose a different carrier, or use the iPhone without choosing a carrier at all.Â Apple swiftly delivers a software “upgrade” to the iPhone, rendering some hacked iPhones inert.Â According to the Times:
Since Monday, Apple officials have been warning iPhone owners that using unlocking software could cause the phone to become â€œpermanently inoperable when a future Apple-supplied iPhone software update is installed.â€ But in many cases those warnings went unheeded.
People who had unlocked their phones to use them with another carrier ran the greatest risk of, in techie terms, having them â€œbrickedâ€ â€” rendered about as useful as a brick. Most of those who committed the lesser transgression of installing programs not authorized by Apple simply had those programs wiped out.
Whether or not this is “legal” on Apple’s part isn’t the interesting question.Â The interesting question is whether the seller of a product should have the power to redefine the character of an object that the buyer paid for and took possession of.Â (This need not even be seller and buyer; we could make it licensor and licensee, or donor and donee.)Â Assume that Apple gave wide and clear warnings and that iPhone buyers freely and knowingly assented to terms that prohibited unlocking and hacking the devices.Â Does Apple nonetheless have an obligation to ensure the basic integrity of the “thing” that iPhone buyers purchased?Â Once an iPhone always an iPhone, so to speak, so that any later “upgrades” might tweak it from a feature or security standpoint but not make it “not an iPhone”?Â I’ll save until later the challenging problem of expressing the point in conventional legal doctrine — because I’m not sure that it can be done.Â But it’s pretty odd to imagine that the seller of your refrigerator might lawfully find a way to “upgrade” the machine so that it doesn’t cool food.