Apple Sued Over iPhone Bricking

An anonymous reader writes "The week's debate over the iPhone 1.1.1 has finally resulted in legal action. InfoWeek reports that on Friday, California resident Timothy Smith sued Apple in a class-action case in Santa Clara County Superior court. The suit was filed by Damian Fernandez, the lawyer who's been soliciting plaintiffs all week for a case against Apple. The suit doesn't ask for a specific dollar amount, but seeks an injunction against Apple, which prevents it from selling the iPhone with any software lock. It also asks that Apple be enjoined from denying warranty service to users of unlocked iPhone, and from requiring iPhone users to get their phone service through AT&T."

OfCOM

[SimonTheSoundMan (1012395)]

I just can't wait for OfCOM to get their hands on Apple when the iPhone launches in the UK. I know I will be the first to complete a complaints for to them on the day of the release.

Re:OfCOM

[RDW (41497)]

It'll be interesting to see how this plays out in other EU countries where unlocking must legally be provided on request, or where it's banned altogether, e.g.:

http://www.unlockiphone.info/2007/07/iphones-in-france-law-says-they-must-be.html [unlockiphone.info]

Will Apple be prepared to allow unlocked phones in these countries (presumably leading to a free European market in officially unlocked phones), or will they choose to lose sales and not sell where they can't enforce a lockdown and get the revenue that goes with it?

Re:OfCOM

[R.D.Olivaw (826349)]

That won't be so complicated. They will sell the phone with a contract. The same thing they do with any other phone. It won't be locked but you've already signed the multiple year contract when you get it.

Re:

[RDW (41497)]

I don't know the details of the law, but it's been claimed that in (e.g.) Belgium, it's not legal to tie even an unlocked phone to a subscription:

http://mindthegeek.blogspot.com/2007/03/great-idea-from-belgium.html [blogspot.com]

http://www.ibert.be/2007/08/looks-like-iphone-wont-be-in-belgium.html [ibert.be]

Re:

[maxwell demon (590494)]

Is there also a law that an unlocked phone must be cheaper than a locked phone plus contract?

Re:OfCOM

[RDW (41497)]

According to several reports, a big chunk of Apple's profit is coming from the locked-in service providers:

http://www.thestreet.com/s/huge-iphone-fees-juice-apple/newsanalysis/techtelecom/10369581.html [thestreet.com]

http://www.guardian.co.uk/technology/2007/sep/17/mobilephones.apple [guardian.co.uk]

To make the same profit without a lock, Apple would have to raise the retail price significantly. Looks like a subsidy to me.

Re:OfCOM

[SimonTheSoundMan (1012395)]

Yes, when purchasing an iPhone you are under no obligation to sign a contract.


What Apple want is for the customer to own the phone and not the service provider. Steve Jobs said many times he wishes to change the business models of mobile phone service providers where they provide the service, and the customer owns the device (iPhone). Now this is where it gets into a dodgy area in the UK. Contract phones are locked in the UK because the device is owned by the service provider until x amount of payments are made - payments that cover the subsidy costs. Because the service provider owns the device, they can do whatever they want to your phone; they can lock it to their network, block the phone, or even take it off you. The contract will state this, and if you want the device to be unlocked the contract will have to be terminated, you will have to pay all the payments for the term of the contract (to cover the subsidy). When the contract ends, the service provider will usually give the ownership of the phone to the customer, so if the customer wishes they could unlock their phone, a small and reasonable administrative charge may be made (£15 is what O2 charges). Now, the iPhone is not owned by service provider, with what OfCOM have stated (telephones must be unlocked on request and small admin fee may be charged), the iPhone should be allowed to be unlocked from day one of ownership. O2 are stating you will not be allowed to unlock the phone for 9 months and doing so will terminate the contract so the rest of the last 9 months contract will have to paid off, however the phone is not owned by O2 in any way, so what they are doing is going against what OfCOM have said. 'Yeah what contract, there was no contract when I bought the phone' will be in my head when it is launched. I have asked at three O2 stores and they have confirmed the iPhone will not be owned by O2 however their HQ is pushing for the iPhone to not be unlocked. One stored offered to unlock it, but do not know of any means to at the moment. I will stay with O2 but do not want that awful contract they offer for the iPhone, I get a better offer on PAYG. Notice the contract is "for the iPhone" and not "with the iPhone". The O2 stores believe a PAYG method will be available just like AT&T if you have a poor credit rating. I asked I could have the PAYG and they said yes if it is offered as they cannot say no because it would break discrimination laws. If PAYG is offered, they for sure cannot keep you locked in. You do pay full whack for the iPhone, they have a nice table that was printed that states how much each handset will cost on certain contracts, the iPhone was listed and it said, "£269. (none subsidised)".

Re:

[m2943 (1140797)]

One of the reasons for having unlocked phones is precisely that people can buy cheap sim cards when they travel and thereby create some competition.

So, I think "unlocked" means "unlocked".

Re:OfCOM

[Stevecrox (962208)]

For our international friends OfCOM is the government watch body for communications, a few years back they made the statement that unlocking your phone so it will work on different networks is perfectly legal and carriers have to unlock a phone if asked to do so (not tried it myself.) Apple's recent american update would fly in the face of that and OfCOM aren't afraid to fine companies and force them to follow their rules. OfCOM is currently looking into forcing broadband adverts to be more truthfull so marketing speak like "upto 8MBPS" or "unlimited" won't be allowed (even if they are legal) for Americans out there this is to protect consumers and is a good thing.


I doubt its going to sell many units to the teenage "cool and hip" crowd because every teenager I know in the UK doesn't want to bring an expensive phone out on the town and I doubt your "power manager" type will end up with one because, from my albiet limited expearence with O2 stores. The staff are actually quite good at matching the phone to the individual, it may not necessarily be the most expensive phone they have on offer nor might it be the coolest looking but it will be roughly what the customer is after.

Re:OfCOM

[GPL Apostate (1138631)]

The staff are actually quite good at matching the phone to the individual, it may not necessarily be the most expensive phone they have on offer nor might it be the coolest looking but it will be roughly what the customer is after.

It sounds like the sales staff are active advocates for the needs of the customer, like they listen to what the customer needs and earn their salary by tailoring a package to meet those needs.

That isn't allowed in the U.S. No Sales Manager would allow such a salesperson out on their retail floor. Here 'sales' is about maximizing return to the retail establishment at whatever expense. The customer is treated like a consumable.

Re:

[xaxa (988988)]

But if the customer thinks they got a good deal -- what they needed and wanted -- they'll probably go back to the store next time they need something it sells.

Last time I went into an O2 store they had the cheap £20 pay-as-you-go phones, and they didn't try to sell anything more expensive to my grandma -- in fact, they recommended it since it had larger buttons than most other phones.

obligitory

[Gary W. Longsine (124661)]

Soylent green is peeeeeopleeeeee!

You wrote:
"The customer is treated like a consumable."

Re:

[by Anonymous Coward]

That's ok, but can we have our jet engine back? (And the programmable computer).

Re:

[by Anonymous Coward]

how about we keep them, train some orthodontists for you and call it even.

Re:OfCOM

[drsquare (530038)]

Why is it that every single thread about American businesses not having their own way in Europe ends up with comments like this? Is it a prick to the American ego that your beloved mega-corporations can't steamroll over the rest of the world like they can in the US?

Stupid lawsuit again...?

[cavac (640390)]

If you modify an embedded system in a non-vendor approved way and then install a vendor update and the update brakes cause you did something incompatible.... Then it's your fault, not the vendors...

While i agree that Apple should be forced to sell unlocked phones, modifying a product in a non-approved way DOES invalidate your waranty. Why should the vendor be held reliable if YOU break his software?

Re:Stupid lawsuit again...?

[cbunix23 (1119459)]

Exactly. There hasn't been any information as to exactly what the nature of that update from Apple was. All we know is after the update unlocked iPhones were no longer usable after the update was applied. The tech-ignorant media has been suggesting the purpose of the update was to turn unlocked iPhones into iBricks, but there has been no proof of that.

Apple did not release an iPhone SDK or API that could be programmed to. Why should they be held responsible for what happens when iPhone updates break iPhones with arbitrary software on them.

It would be like changing the linux kernel for some special project you are workin on and then complaining that your unapproved changes no longer worked when the next kernel release came along. That's why there are API and SDKs and manual pages. Go beyond them at your peril.

Re:

[Aqua OS X (458522)]

Bah. We're talking about software here. It's not like little gnomes entered the iPhone and physically started destroying the hardware. At the very least Apple should allow people to wipe everything and begin anew.

Re:Stupid lawsuit again...?

[jcuervo (715139)]

It's not like little gnomes entered the iPhone and physically started destroying the hardware.

Or is it?!

Re:

[uglyduckling (103926)]

The tech-ignorant media has been suggesting the purpose of the update was to turn unlocked iPhones into iBricks, but there has been no proof of that.

And how could we go about getting proof... hmmm... maybe... how about a lawsuit? Isn't that what they're for - a group of people have a strong suspicion of foul play and would like to know if it indeed happened as they believe and if there is a legal remedy for it.

Bricking not intentional

[tgibbs (83782)]

What is now becoming clear is that many unlocked phones come through the upgrade unbricked [engadget.com], albeit re-locked. Considering that recognizing an unlocked phone should be a simple matter of a checksum, it seems clear that Apple was not intentionally "bricking" phones. There are reasons to believe that this is likely an unintended side effect [brockerhoff.net] of an update designed primarily to enhance iPhone security. If it was not intentional, Apple is in the clear [wired.com], as they are under no legal obligation to debug an update to work with phones that have been modified in violation of warranty. And indeed, it seems that while Apple is under no legal obligation to do so, Apple sotres are restoring "bricked" iPhones. [tuaw.com] Moreover, it is not as if Apple failed to warn owners of unlocked iPhones that applying the update would likely harm their phones.

Re:Bricking not intentional

[makomk (752139)]

The phone in general isn't exactly bricked - though it is heavily locked down that it might as well be. However, as far as anyone can tell the baseband chip - which is used to communicate with the mobile network - does get bricked in many cases if the phone has been unlocked.

In fact, he article you've linked to doesn't say that many unlocked phones have come through unbricked. It says that jailbroken (modified to run third-party software) don't get bricked, but people who've unlocked their iPhone definitely shouldn't upgrade because they're likely to end up with a bricked phone that doesn't even work on AT&T anymore.

Also, the important security updates are to the main iPhone itself and don't require a baseband firmware update - I'm guessing that's aimed at closing whatever hole allowed the unlocking in the first place. If it bricks a few unlocked phones, well, what do Apple care?

Re:Stupid lawsuit again...?

[suv4x4 (956391)]

Why should the vendor be held reliable if YOU break his software?

Indeed, why?
Let's find out!

*flips out a cell phone and dials his lawyer*

Re:Stupid lawsuit again...?

[speaker of the truth (1112181)]

Then it's your fault, not the vendors...

Unless of course writes code that does nothing EXCEPT break modded phones. It would sort of be like Microsoft detecting you have open office installed on your computer while giving you a patch for Microsoft Word and then bricking your computer.

Now I've seen nothing but insinuations that Apple did this myself. But some lawyer obviously thinks there is a bit more then insinuations. Whether or not he's hoping to confuse the courts or has a good case remains to be seen.

Re:

[s4ltyd0g (452701)]

So If I void my warranty, that gives Apple the right to break my phone?

Re:Stupid lawsuit again...?

[peragrin (659227)]

actually the guys looking at the code are saying that apple did a complete rewrite of the software. Maybe Apple didn't want third party applications because the first version of the software while functional was ugly from an internal standpoint

Think OS X 10.0 versus 10.2 they work the same yet the code itself has been cleaned up.

Re:Stupid lawsuit again...?

[janrinok (846318)]

Apple deliberately made the update brick the phone if third party applications were installed

How do you know? The upgrade might have had that effect but it might not have been deliberate, but simply the result of trying to apply an update to software that was in an unknown state because it have been modified by the user.

Re:

[alshithead (981606)]

"Wasn't it announced *ahead of time* that the upgrade would brick unlocked phones?"

I think I remember seeing that magic word "could" thrown in there in Apple's release. That "could" relieve them from some/any liability in a lawsuit. Of course, my personal opinion is that if you modify your device and then update it after being warned that the update "could" conflict with changes you have made, you have taken that possibility upon yourself. Tinker all you want if you are willing to take responsibility for

Testing for the unknown

[Midnight Thunder (17205)]

Wasn't it announced *ahead of time* that the upgrade would brick unlocked phones?

That sure sounds like premeditation to me.

Nah, that sounds more like them taking into account that if you do some unsupported random modification, then there is no way for them to know what you did. And if they don't know what you did, how is the testing process going to know what to test for? Private APIs are always going to be changing, since they don't need to take into account third-party applications are using them and if they are they shouldn't be.

If you hack something then you should accept the risks associated with it. Yes I believe Apple should be making the iPhone more open, but until it is anything you do which is not officially supported is at your own risk.

BTW Haven't a number of people come up with solutions to unbrick the iPhone?

Re:

[digitalchinky (650880)]

Your analogy is completely broken. What people have done is simply modify their firmware along with the addition of a few new 3rd party applications. Keeping this in mind, why is it so hard for Apple to release an update that clears all memory first, then installs itself fresh. No bricked phones. Certainly everything may be reset to factory defaults, but that is a good deal more preferable than the situation people find themselves in now.

Nokia updates work this way - Sony Ericsson is very similar.

I really h

Re:Stupid lawsuit again...?

[alshithead (981606)]

"What *was* deliberate was the encryption of the firmware to lock out third party apps/mods. That's a deliberate step to lock down the phone, as with the touch, not an unintended consequence."

They have every right to try to lock out third party apps/mods. I could create a machine that sucks dicks. Don't come crying to me if it bites your dick off if you modify the firmware to try and let it toss your salad too. My warranty would state that the alshithead dick sucker is specifically for sucking dick and alshithead will not repair, replace, or sew dicks back on if modified in any way. :P

Re:Stupid lawsuit again...?

[ciw42 (820892)]

I stand to be corrected here, but is there any *actual* evidence (apart from hearsay) that the bricking was deliberate. It seems to me perfectly understandable that if the software and configuration files on the phone aren't exactly as they were shipped, then an update could quite reasonably fail, and as the iPhone isn't a consumer product which allows the user to install new software, then there is no reason for Apple to develop updates which work with anything other than the default software shipped with the unit. It's entirely their baby, and unless the update causes problems on phones with their default install, they're not responsible for any problems you may have.

We're not talking physical materials or workmanship here, we're talking about people changing the software on their phones, and that is something which goes against the terms of Apple's warranty for the product. Your car analogy isn't a particularly good one, as Apple aren't saying they won't repair a phone which has physical faults or non-software related issues. Apple are in no way responsible for the software if it's been modified by the end-user. This is fairly standard stuff in software development/support terms.

Unlocking an iPhone isn't a simple process, and it's not something you'd do accidentally or casually without understanding what you were doing. Anyone unlocking their phone did so on purpose, and knew at the time they were invalidating their warranty. It's made very clear on every single website I've seen which details one of the approaches to doing this. If you got the instructions, then you knew the risks. Simple as. Anyone who's unlocked their iPhone is no longer entitled to support either, as they're not using their iPhone for the purpose for which it was intended.

Re:Stupid lawsuit again...? -xts

[by Anonymous Coward]

Warnings were given multiple times. Apple release a press release, posted a warning before your computer downloads the new software and then posted an aditional and seperate warning (completely seperate from the EULA) before you could CHOOSE to install the software.

Watch them lose the case....

[3seas (184403)]

... and this will settle the matter once and for all.

I mean when you have to buy numerous formats of a song because you are not allowed to pirate what you buy, to yourself for use on another device.... then of course At&T iphone lockin is acceptable.... If you want to use a different carrier you need to use a different format/device.

Anticompetitive practices is the only thing to argue here, but if you bring in a bunch of other non-issues then you can make the case lose.

Re:

[MikeBabcock (65886)]

Speaking of re-purchase, I'm thoroughly annoyed, having just got a new phone from the same provider as my last one, that I have to repurchase the games I downloaded to my last phone. Same phone number, same contract and everything, but I'd have to repurchase the games to get them onto my new phone. That makes just /so/ much sense.

Caveat Emptor

[Nymz (905908)]

Caveat Emptor [wikipedia.org] - let the buyer beware.

Honestly, Apple has not attempted to deceive anyone on this issue, and they make it clear that service is with AT&T only. If you don't want to be locked-in with AT&T, then don't buy an iPhone. Period. If you still must absolutely have a class-action lawsuit, then do it against the Steve Jobs backdating accounting scandal.

DMCA Confusion

[Nymz (905908)]

Except mobile phone vendor lockin is against the law.

Is it? I think the current situation is as follows:

• The DMCA has an exemption for users to unlock their own phone
• But the DMCA still prevents sharing of code that circumvents locks
• So while you may unlock it, you must be able to do it all on your own
• Leaving Apple free to use DRM, to make exercising your rights very difficult

Bloody idiots.

[ciw42 (820892)]

This lawsuit is just absurd.

OK, so I'm with everyone else hoping that before long the practice of locking phones to specific networks gets outlawed, but in this particular case, Apple haven't done anything wrong.

They are only responsible for providing updates which work with their software as supplied, and not software and iPhones which have been hacked specifically against Apple's advice, to get them working on other networks.

If your phone gets bricked by an Apple update after you've unlocked it, then it's entirely you fault. No-one else's. You did something that you knew full well at the time you shouldn't have done, and let's face it, it's not a simple process, so there can be no possible claim that you didn't know the consequences of your actions, and if you didn't understand this process and the implications, then you're even more of a fool for doing it. You've learned valuable lesson here - don't mess with things you don't understand. You immediately voided your warranty, again something you were fully aware that you'd be doing, and began using it in a way it was never intended or designed to be used, so you're not entitled to support. And now you've came out of it looking like a cock. With no phone. You bloody idiot.

Lockin won't fly in Europe

[Morgaine (4316)]

You believe that Apple's actions are OK, and maybe they are in the US. But that won't fly in Europe.

The GSM standard expressly provides for cross-vendor compatibility through simple SIM change, and unlocking of locked phones is entirely legal in most if not all European countries. In fact, it's a substantial business to provide unlocking services, and to sell ready-unlocked phones.

That doesn't mean that it's free (a cellphone service provider will charge you for unlocking, since it carries the risk for them that you might defect to a competitor if their service is bad). But it does mean that unlocking is supported.

If the accepted and legal position in the US is that providers are allowed to deny GSM service mobility by not offering unlocking and by bricking unlocked phones on purpose (allegedly), then those providers are about to face problems when they try to do the same thing in European jurisdictions.

Re:

[bigstrat2003 (1058574)]

If your phone gets bricked by an Apple update after you've unlocked it, then it's entirely you fault. No-one else's.

Not if, as people have claimed, Apple deliberately caused the update to do that. This would be difficult to prove, but I really don't put it past Apple, so it's possible. If Apple deliberately bricked people's phones, they should pay.

In addition, I hope this suit goes through even IF Apple didn't deliberately brick people's phones, as it could help move the cause of mandated unlocking forward.

You've learned valuable lesson here - don't mess with things you don't understand. You immediately voided your warranty, again something you were fully aware that you'd be doing

As someone else pointed out, the warranty should not be void for all things because you messed with the software

Re:

[ciw42 (820892)]

You moron.

I'm not an Apple fanboy. I don't own any Apple products, but I do know software and embedded development rather well (after 20+ years experience) and I also like to think I have sensible and objective opinions on matters like this. Something you obviously don't.

Oh, and stop swearing, it makes you come across as borderline illiterate and definitely someone in their early teens with a lot to learn about the world.

Different than everyone else?

[mgkimsal2 (200677)]

Do Apple users think they're different than everyone else? I guess that question is silly - of course they do ('think different' and all that). Well, looking at it now, perhaps this is more organized by the lawyer (does he use Apple products?) than the Apple users directly. I understand their frustration, but suing to have the phone unlocked from AT&T? OK, perhaps this will be a 'fight the good fight' and perhaps they'll actually win. Perhaps this is the only group that feels this passionately about the subject. But why not sue Blackberry for only allowing the Curve 8830 on the TMobile network? I want an 8830, but on AT&T. Should I buy it, sign up for TMobile, then sue RIM? Or TMobile? Or both? I guess I don't quite understand the notion of throwing these other extraneous issues in to the suit, unless they're hoping for *something* to stick.

Why is the iPhone any different than a computer?

[LwPhD (1052842)]

I really see no true difference between using your iPhone (with a carrier OF YOUR CHOICE) and hooking your landline (with a carrier OF YOUR CHOICE) through your computer's modem so you can use a software phone and answering machine. Also, how is it any different from using your laptop with a cellular card (with a carrier OF YOUR CHOICE) to get internet connectivity on the go?

To my layman eyes, the law in this area seems ad hoc and gives special attention to handheld cellular devices. Fortunately, it seems likely that unlocking is legal [slate.com]. I seriously hope this case will be the first of many to push regulation of companies that maliciously sabotage their customers after they bought the product to maximize profit.

I'm currently a very satisfied Mac user (I'm writing this post from a 3 year old PowerBook G4 17" that still runs like a spotted assed ape) but these sorts of moves sour me on AAPL. I'll give them a few chances to mess up and be forgiven, but as a computer savvy person who's primary love of Apple is for how they've beautifully wrapped what's under the hood, I can just as easily go right back to Linux where I came from. After all, that's what I use on the desktop and in the server rack already. Why is it, just when Microsoft seems to have shot itself in the foot with Vista and controlling what users do with their hardware, that Apple jumps right of the cliff with them?

Apple's gonna win, as they should, if they fight

[sirwired (27582)]

Apple bricking the phone is not illegal, nor should it be. When Apple sold the phone, they were crystal clear that its only supported use was with AT&T and Apple-approved apps. Those that disagree with the policy should not have bought the phone.

Now, if Apple was suing folks for unlocking the phone, that would have been something else (and certainly brings to the forefront debates on shrinkwrap, reverse engineering rights, etc.) but they have not. The proper response to this bricking is another hack, not a lawsuit.

Apple is also perfectly within their rights to not give warranty service to those that modded their phone. The Magnuson-Moss Act only provides protection to those whose aftermarket bits did not cause the phone to die. If these folks had not modded their phone, the update would not have killed it. The act was meant to protect those that say, bought ordinary aftermarket headphones... automatically denying warranty service for THAT would be a blatant violation of the Act. For folks that would avail themselves of the Act, even a liberal interpretation would mean they would have to prove that Apple's update deliberately disabled the phone. Given how many things that can go wrong with code updates, I would be surprised if Apple simply just did not test on an unlocked phone, and the process just happens to brick the thing. Apple probably bricked many legit phones during their testing process until they got the bugs worked out...

SirWired

iPhone in Europe

[d3m0nCr4t (869332)]

I wonder how Apple will sell their iPhone in Europe. It is forbidden by the European consumer laws to sell a phone where you force users to a certain provider. I'm really curious.

New Twist on an Old Trick

[stewbacca (1033764)]

the lawyer who's been soliciting plaintiffs all week for a case against Apple.

Man, and attorneys used to just chase ambulances.

Apple could have avoided this

[jdc180 (125863)]

If the software in the phone is in an unknown state, then don't allow the upgrade to run.

Apple obviously wanted to brick the phones. Just about every other upgrade i've ever run checks the bits it's upgrading to make sure it's good to go.

Re:

[mark-t (151149)]

That's all very well and good, but it's not too hard to imagine cases where an installed application (such as a firmware upgrade app) would not be capable of detecting that it had been unlocked.

Apple probably wants this

[imadork (226897)]

Am I the only person who thinks that Apple probably does not mind this lawsuit? Apple doesn't seem like the company who would want to sell service tied to one provider anyway, they would either want to sell devices that work with any provider or provide the service themselves. They were likely forced to lock the phones as a condition of getting on anyone's network, and starting their own network is impossible until more spectrum gets auctioned off. I'll bet that Apple was counting on a reaction like this, and has a provision buried in their contract with AT&T that says if a court forces them to unlock the phones, they can do so without invalidating their access to the network and AT&T can't complain.

I Filed an FCC Complaint

[OS24Ever (245667)]

I got bored and one site recommended filing a FCC complaint so I did, saying that they wouldn't unlock my phones after 90 days of service like their other phones.

I got a call from the office of the president for AT&T. Unfortunately I was downstairs celebrating my daughters birthday so haven't been able to talk to them to see what happens, but I was pretty dang surprised.