by
October 12th, 2007

"We believe that to err is human. To blame it on someone else is politics." -- Hubert H. Humphrey

A lot of people appear to think that Apple is on the wrong side of the iPhone unlocking and bricking affair and is rotten to the core. I believe they are wrong. In fact, I believe Apple to be totally blameless and well within its rights, the law, and even good sense.

The arguments so far have been that Apple is acting either illegally or unethically. At the very least they are abusing their customers. In fact, none of that is happening.

To analyze the situation properly, it's necessary to look at the various classes of users, look at their rights and what has transpired.

Class #1. The typical customer with a pristine iPhone. I will argue that 99.9 percent of Apple's 1.25 million iPhone customers have activated their phone, are paying their bills, are using their new mobile phone productively.

Of the remaining customers, there are several possibilities.

Class #2. Researchers who buy an iPhone, never activate it in the intended fashion, and take it apart to see what makes it tick. They may engage in hardware or software experiments to unlock the iPhone and liberate it to be used with another carrier's SIM. Certainly, that is an interesting technical challenge, and any such researcher who's smart enough to tackle such a project knows that there is some possibility they could brick the iPhone. Solution: requisition a few more and continue experimenting.

Class #3. Individual technologists who want to develop their expertise, but who are not particularly well funded They can only afford one iPhone, and it has to double as their working phone. They want want to revel in the use of the iPhone, take advantage of all its cool features, and desperately hope that they'll not make a mistake with their new toy that bricks it.

They buy the phone, activate it, agree to the all the licenses, terms and conditions, use the iPhone for communication, then cautiously experiment with it. Installing third party software is fairly harmless, and they know that Apple neither blocks or condones 3rd party native apps.

Then, for the sake of experimentation, they may try to unlock the iPhone. As this point, they've violated Apple's warranty, but that's okay. They're free to do that. They're also free to break their contract with AT&T and pay whatever fees are required.

Class #4. Customers who intended to unlock the iPhone all along. They buy the iPhone, enter 999-99-9999 as their SSN, fail the credit check, sign up to pay by the month, then terminate service. They then read up on how to unlock the iPhone, and do so successfully, paying lawful charges to their new carrier. So far, so good.

However, they then decide that they want the new features offered to Class #1 customers. a) They apply the next Apple update without resetting the iPhone back to its original pristine condition. It gets bricked. b) Or, the customer does reset it, applies the update, and then finds that their original procedures to re-unlock the phone doesn't work so well. They're greatly annoyed.

All the fuss is surrounding customers in Class #3 and #4, so I'm going to analyze the situation by appealing to precedent and analogy in a related industry, the car, which has been around for 100 years as opposed to the iPhone which has been around for about 100 days.

Adventures with Bill

Let's take a look at a BMW customer named Bill. He's bought a new BMW 335i. It's drop dead gorgeous, and he loves it.

After the sale, the BMW dealer tells him about the Dinan racing group. It's a serious group of professionals, and they've developed a software patch for his car that will give him 20 more hp, requires premium fuel, is blessed by BMW, won't violate his warranty, but will cost him $450. Bill thinks about it, but declines.

One day, Bill finds a Website called JoesSuperBimmer.com. There, he finds some software, v 0.9, that claims to give him 15 more horsepower, but allow for mid-grade fuel. Bill hates paying for premium. So he downloads the software, connects his Macbook to the 335i's engine, and uploads the software to computer "A." All seems well, and Bill is happy to be paying for mid-grade gas. He has a zippier car than other 335i owners, and that pleases him also.

Soon thereafter, BMW is required to do a safety recall. They've tested the fix for his engine's computer "B", and apply the fix when Bill takes the car in for the recall.

After the technician applies the BMW update, he starts the engine, and there's a loud crack, small explosion, smoke, and the engine seizes up. Bill gets a phone call.

BMW: Bill, your engine is gravely damaged. The car won't start. It's never going to start.

Bill: It's your fault! You were working on my car!

BMW: It's certainly not out fault. We know our cars.

Bill: You did it on purpose!

BMW: No, we simply applied our own tested update. Something else went wrong.

Bill: Then you should fix it under warranty!

BMW: In fact, we know what went wrong. We noted that the engine software has been tampered with. Your warranty is void.

Bill reflects for a moment. He needs his car to get to work.

Bill: What are my options?

BMW: Well, you can pay us $4815.84 for a new engine. Then we'll reload all the factory software. Your car will be as perfect as the day you bought it. Or... you can have your car towed to your house, put up on blocks, and you can admire its beauty daily.

Grudgingly, Bill agrees to pay the repair fee. However, the next day, driving to work, he thinks about suing BMW. He suspects they destroyed his engine on purpose. Worse, they're trying to force him into paying for premium fuel. He smolders.

That night, when he gets home from work, he goes to JoesSuperBimmer.com and discovers v 0.92 of the software. Super Joe's comment about the new version is, "...worked all night on it. Seems better."

Bill thinks about installing the software. He has every right to do so.

What would you do?

Exclusivity

It seems to me that mobile phones tied to one carrier have been around for a long time. No federal or state law, no legal judgement that I am aware of has set a precedent that says Apple cannot tie its phone to a single carrier partner.

Just because the situation with unlocking a mobile phone is more flexible in Europe and Asia, a more desirable situation for most of us, doesn't mean that Apple cannot engage in what every other mobile phone manufacturer has been doing all along: building desirable phones and making them available exclusively with a partner, for a period of time, in order to help both prosper in the market place.

Most certainly Apple's attorneys have scoped that out, and until U.S. law changes, it'll continue. If we don't like it, we have to somehow convince our Representatives to enact a new law.

On the other hand, it's been pointed out that under the DMCA, we have the right to unlock our phone. The law doesn't say much, so far as I've read, about the manufacturer's legal obligation to make unlocking easy and painless. Eventually, those matters will have to be settled in court. Even so, I believe Apple will prevail because Apple is following ample precedent in tying its phone to one carrier. Until U.S. law specifically requires a mobile phone manufacturer to make unlocking as simple as replacing a SIM card and requires phones to be usable with any carrier, Apple's attorney's can just stand up in court, point to the current U.S. laws, or their absence, as well as precedent and be home in time for an early dinner.

What does all this mean for Class #3 and #4? They're perfectly free to try to unlock the iPhone that they own. If they achieve an unlocked iPhone and settle their account with their carrier(s), they're probably in good shape. However, if they then, desiring to take advantage of the features offered to Class #1 customers, ignore Apple's warnings about what could happen, then they don't really have anyone to blame but themselves if that update bricks the iPhone. After all, Apple cannot take into account what experimental software may have been installed that effectively terminated the customer's license agreement. Even the customer wasn't sure about all the side effects. The experimental code is too new and complicated.

I should point out here that no evidence has been presented that proves Apple wrote code to intentionally brick phones. Given the obscurity, security and complexity of Apple's own code, I doubt anyone ever will prove that. Moreover, Apple is blameless if some exotic technique used for unlocking results in damage to the iPhone at the next update because the full impact of the experimental software was never explored nor warranteed.

On the other hand, I believe that Apple may have to backtrack on the Magnuson-Moss Warranty Act. After all, if a customer lawfully unlocks their iPhone and otherwise pays all required fees to their old and new carriers, then Apple should attend to their side of warranty against defects and poor workmanship. However, a customer shouldn't expect, after warranty service, to have the repaired iPhone returned in other than Apple's own factory condition. And if new parts replaced under warranty prevent further unlocking, Apple should have no liability. After all, the iPhone is fixed and ready to be used as intended according to Apple's design specifications.

Monopoly

Apple doesn't have a monopoly by any means; that's a absurd proposition and will be laughed out of court. Anyone can go out and chose from many different mobile phone carriers, AT&T, Qwest, Sprint, T-Mobile, Verizon and many others. A wide variety of phones and services are available from all of them.

Back to Bill

Bill has installed version 0.92 of the software. He's worried about taking the car in for service in the future but is crossing his fingers that nothing will go wrong. And while he's happy about paying for mid-grade fuel, he's still blindingly mad at BMW for taking his $4800 and some change.

In fact, he's so mad that he's thinking about selling the BMW and buying a Corvette. He calls Toyota and finds out that he can't get a Corvette from Toyota. Now, Bill's really mad.

Monopoly! GMC is evil. Bill hates the idea that he has to buy the Corvette from GMC, a company he doesn't like. But that Corvette is oh so beautiful. If only Toyota made one. Bill now believes that BMW and GMC are both out to get him.

Conclusions

I believe that only a small percentage of Apple's customers are responsible for all the fuss, but that small percentage creates a selfish, emotional sensation of injury that tries to irrationally rally the rest of the users to their unjustified cause.

Apple is engaging in activities that every other mobile phone manufacturer engages in. Apple doesn't have a monopoly; that's laughable. Customers who believe they've lawfully unlocked their iPhone should continue to use it in that state and not expect to install any further updates from Apple. If, however, the display or audio jack fails, they should get warranty service. If they've altered their iPhone in a fashion that Apple cannot anticipate and then insist on applying Apple's updates, unanticipated problems of their own doing should be expected.

The key here is that we have a complex device, a mobile phone or a car. There is tested and approved software that maintains the warranty and the proper operation of the device. And then there's experimental software, downloaded from a fly-by-night Website, that neither the developer nor the user can validate 100%. If it's installed by the user, he has the right to do that. He also has the right to put a bricked iPhone up on a pedestal and admire it daily.

John Martellaro is a senior scientist and author. A former U.S. Air Force officer,he has worked for NASA, White Sands Missile Range, Lockheed Martin Astronautics, the Oak Ridge National Laboratory and Apple Computer. During his five years at Apple, he worked as a Senior Marketing Manager for science and technology, Federal Account Executive, and High Performance Computing Manager. His interests include alpine skiing, SciFi, astronomy, and Perl. John lives in Denver, Colorado.

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