Apple sells you an iPhone with a contractual restriction that limits you to using one and only one telecom carrier. 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. Apple swiftly delivers a software “upgrade” to the iPhone, rendering some hacked iPhones inert. According to the Times:
Since Monday, Apple officials have been warning iPhone owners that using unlocking software could cause the phone to become “permanently inoperable when a future Apple-supplied iPhone software update is installed.†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 “bricked†— 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. 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. (This need not even be seller and buyer; we could make it licensor and licensee, or donor and donee.) 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. Does Apple nonetheless have an obligation to ensure the basic integrity of the “thing” that iPhone buyers purchased? 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”? 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. 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.
Fascinating questions all. Is there some “implied warranty of merchantability” that is left unbreached by the buyer’s decision to hack the phone?
I’m wondering if courts in the patent context have allowed licensors to unilaterally repossess (or remotely destroy) licensed patented objects when the licensee violates the license agreement. I would think the law would frown on such severe self-help. And even if that self-help were specified in the license itself, would that amount to a liquidated damages provision? As one source notes, “Courts will typically not uphold “liquidated damages” clauses if the damages are disproportionate to the injury, or if the amount of liquidated damages appears to be intended as punitive as opposed to fair compensation for the injury.” (http://www.expertlaw.com/library/business/contract_clauses.html#10
Also, didn’t Orrin Hatch play with the idea of letting content owners erase your hard drive remotely if they found pirated content on it? see
http://www.theregister.co.uk/2003/06/18/us_senator_would_destroy_mp3/
If I might argue a bit with the closing analogy: I think it would be better expressed as
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 unless the electricity used to power it comes from a coal-fired generating plant.
And that makes things that much clearer, at least to me: International Salt. In other words, this is about tying, albeit tying to a partner’s product (in the nontechnical sense of “partner”) for purely commercial reasons, as opposed to technical ones.
“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.” Phrasing the question that way makes it sound like “distraint” — a common law legal remedy allowing someone, usually a landlord, to take personal property in order to enforce an obligation (e.g., rent). Distraint is pretty much dead, I believe, and with good reason too. (The only reason I know about “distraint” is because my wife is currently researching it.)
But is that the right view? Apple isn’t changing the character of the *update*, and it’s the update that brick-ifies the phone, not Apple directly. So don’t install the update if you’ve modified the phone. Surely there’s some mechanical-world equivalent to this situation, where someone sells a machine and replacement parts or inputs for it, but the parts/inputs will jam the machine if it’s been modified. Outside of the magical world of cyberspace, I think the metaphor would seem less attractive that the part/input manufacturer is somehow virtually “reaching inside” the machine unbidden when the machine owner installs the part/input and it jams.
Bruce, you may be right, but I’ll have to think about whether it’s Apple or “Apple’s update” that’s the agent here. Is that splitting hairs too finely?
More food for thought:
The fact that a machine may turn into a “brick” is a sufficiently widespread problem that it has its own Wikipedia entry.
And consumers may not have a choice regarding whether or not to install the updates. When TiVo sued Echostar for patent infringement recently, the district court awarded TiVo a remedy that required EchoStar to push a software “upgrade” to consumers’ machines (DISH Network DVRs) that disabled the functionality that used infringing technology. This did not “brick” the machines, but the fact that a manufacturer might reach into the home and modify the functionality of a legitimately purchased machine, without the consent of the consumer, has to be troubling from a consumer standpoint. The Court of Appeals stayed the order, and the appeal was later dismissed. (Did the case settle? I’m not sure.)
It’s possible to separate these situations into common doctrinal boxes (antitrust goes here, patent infringement goes there, distraint and bailment and security interests of various sorts go into the thing [oops — meant to write “third”!] place). If we do that, does public policy miss a bigger social and especially consumer interest?
Mike, that’s a good question, although as I hinted I think these debates for electronic devices tend to get warped by the (seemingly) mysterious nature of modern gadgets. However, I’ve got another question for you: in an increasingly networked and service-oriented world, what’s so special about thingy-ness? So the consumer bought and took possession of a piece of fiberglass and silicon encased in plastic — so what? That’s so 20th-century!
I think that it’s pretty 19th century, myself!
Actually, and seriously, the persistence of our obsession with things is, at one level, quite puzzling. What explains it? A hypothesis: Anxiety over the integrity of things reflects anxiety about the future more generally. Sure, the network will deliver the services we want, but how can we be sure? Trust? People want to verify, which (I hypothesize) is a key function of objects.
“Does Apple nonetheless have an obligation to ensure the basic integrity of the “thing†that iPhone buyers purchased?” In the art world there are some contexts where the owner of art has to insure the “basic integrity” of a piece for the creator. I don’t know how well that crosses over to software and hardware. I am sure some enterprising attorney will find a way. Read more about it here:
http://online.wsj.com/article/SB119101266764543043.html
Re “Anxiety over the integrity of things reflects anxiety about the future more generally.”
This essay on Forster’s “The Machine Stops” is great:
http://www.prospect.org/cs/articles?article=connecting_with_em_forster
“Written in 1909 partly as a rejoinder to H.G. Wells’s glorification of science, “The Machine Stops” is set in the far future, when mankind has come to depend on a worldwide Machine for food and housing, communications and medical care. In return, humanity has abandoned the earth’s surface for a life of isolation and immobility. Each person occupies a subterranean hexagonal cell where all bodily needs are met and where faith in the Machine is the chief spiritual prop.”
Faith in the machine? surely you jest….:
http://gizmodo.com/gadgets/apple/is-the-cult-of-the-jesus-phone-really-a-cult-272194.php
One last question: how does intention matter here? Commentators are now saying Apple did not intend to brick the iPhone:
http://www.wired.com/gadgets/mac/commentary/cultofmac/2007/10/cultofmac_1003
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