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9/30/2007
09:02 AM
Alexander Wolfe
Alexander Wolfe
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Apple Users Talking Class-Action Lawsuit Over iPhone Locking

You bought the iPhone, you paid for it, but now Apple is telling you how you have to use it, and if you don't do things the way they say, they're going to lock it. Turn it into a useless "brick." Is this any way to treat a customer? Apparently, it's the Steve Jobs way. But some iPhone users are mad as heck, and they're not going to take it anymore.

You bought the iPhone, you paid for it, but now Apple is telling you how you have to use it, and if you don't do things the way they say, they're going to lock it. Turn it into a useless "brick." Is this any way to treat a customer? Apparently, it's the Steve Jobs way. But some iPhone users are mad as heck, and they're not going to take it anymore.In a Saturday post on Apple's own iPhone discussion forums, a user who goes by the handle of "myndex" has posted the provocatively entitled message "iPhone Class Action Lawsuit." Despite its title, it's not notice of an actual lawsuit. Rather, myndex is seeking comments from other forum users on what they think of suing Apple over its refusal to service users who've unlocked their iPhones or loaded them up with "unauthorized" applications. [Update, Sun 1:40 pm. As commenter "Poli," below, notes, myndex's entry on Apple's discussions.apple.com forums appears to have been removed by Apple some three hours after this Wolfe's Den post appeared. For that reason, at the end of this entry I've added screen captures of myndex's mirror post from the macrumor board.]

Here's a summary of the post:

"To: iPhone Owners denied warranty service. Seeking respondents for possible class action lawsuit against Apple Inc. relating to refusal to service iPhones and related accessories under warranty...There are three potential classes in this case: 1) Persons who own an iPhone and used software to access the available flash drive space on the iPhone [iPhoneDrive]; 2) Persons who installed 3rd party software on the iPhone for the purpose of expanding its functionality; 3) Persons who unlocked their iPhone to allow for its use on networks other than AT&T."

Should Apple be worried? Perhaps more for the groundswell myndex could create than an immediate legal action.

A quick search indicates that "myndex" likely isn't a lawyer. More probably he's a Mac guy. You get this from his Web site--myndex.com--which is something called Myndex Technologies. "We are a research and devlopment [sic] organization," the site says. A WhoIs search reports the site is registered out of Carson City, Nev.

The other, more troubling, reason his suit might not fly is that some respondents on the site seem to be suffering from Apple-induced Stockholm syndrome. Writes one: "I would love to tinker with my iPhone, but it's not worth bricking it or voiding my warranty. Anyone who turns his shiny new phone into an iBrick by messing with the firmware AFTER he was warned and demands compensation... well... I have no sympathy."

Here's another: "I'm not saying what this new [Apple] update did was right but then again neither was modifying the phone to do what it was not intended to do no matter how useful the modifications were."

Personally, I'm with this poster, who shows some backbone:

"I'm afraid I'm not with Apple on this one. Seems to me that Apple's usage terms are onerous and unreasonable (can't put a file on your iphone which is as much a handheld computer as it is a telephone or an ipod?) What, we live in the digital equivalent of the iron curtain?"

I'm not averse to myndex succeeding, because Apple's stance really bothers me. It seems like Jobs has turned the famous "Pottery Barn" rule on its ear. In the iPhone world according to Apple, it's "You bought it, we [might] break it."

The sheer hypocrisy of it all rankles. Here's a company whose CEO has railed again the inclusion of digital-rights management (DRM) encryption software on competitors' music files. Many people supported Jobs in his stance, assuming it was, at least in part, a philosophic nod in favor of consumer's rights. However, in light of the latest iPhone fiasco, a sober observer would say that was probably just a cynical business move to get onboard where he figured consumers were heading with or without Apple. (That's on top of the first iPhone mess: Jobs' precipitous early price cut, which blew a big raspberry at early adopters.)

Here's some background on what specifically Apple is doing. As InformationWeek reported on Sept. 24:

"Apple warned that unlocking programs used to connect the iPhone to cellular networks other than AT&T's causes 'irreparable damage' that would likely result in the modified device becoming inoperable when this week's Apple-supplied software update is released."

Sadly, as The New York Times noted on Saturday, Sept. 29, in its story Altered iPhones Freeze Up, this has indeed come to pass:

"Joel Robison, a systems network engineer near Seattle, said his phone stopped working immediately after he installed the upgrade. He said that when he took it to an Apple store, he was accused of having unlocked the phone. But he said that with the exception of one aborted attempt to install a piece of outside software, he had made no modifications to the phone. 'Their accusation was very damaging to my opinion of Apple's service,' Mr. Robison said."

Damaging to his opinion? Heck yeah! What additional message do consumers need that Apple's iPhone arrogance has run amok?

Still, one has to admit that Apple's stance is not unexpected. Nor is the corporate speak emanating from Cupertino in response to consumer concerns. This quote, in the Times' story from Apple spokeswoman Jennifer Bowcock, is priceless:

"If the damage was due to use of an unauthorized software application, voiding their warranty, they should purchase a new iPhone."

You can't buy this kind of publicity, can you?

In light of myndex's threatened suit, it's relevant to examine whether Apple's position, that it totally controls the iPhone after a customer has bought it, opens Apple up to any legal action. An iPhone isn't software, so Apple can't hide behind a EULA or the position that customers are only "renting" or licensing the device and don't really own it. Or can they?

AT&T, the only wireless carrier offering the iPhone, has volleyed the issue back into Apple's court. An AT&T customer document entitled "Essential information before you buy," contains this gem: "iPhone is covered by the Apple Warranty. There is no eligibility for the wireless phone insurance program." The iPhone box says an AT&T contract is required for use and activation of all features of the phone, which makes for something of a round-robin situation here.

The iPhone manual (download, here) has this: "Apple is not responsible for damage arising from failure to follow instructions relating to the product's use."

I'm not a lawyer, so don't know whether all this stuff puts Apple in a completely defensible position. To a layperson, it seems like there's a difference between damage that's out of Apple's control and Apple going out of its way to mess up your phone.

However, at least one lawyer doesn't agree with me. Here's Noah Funderburg, an assistant dean at the University of Alabama School of Law, quoted in the Times' story. "Anyone who hacks must know that they are taking certain risks," Funderburg told the paper. "If they aren't willing to assume the risks upfront--like a brick iPhone--then maybe they should not hack the device."

There's been at least one prior iPhone suit, but it was about the fact that consumers can't get at the battery. Myndex's missive seems to be the first chatter about a "brick" suit.

What's next? Will Mr. Jobs tell iPhone users who they can and can't call, and when? Hey, here's an idea, which comes by way of analogy with the way Apple treats iPhone hackers: If anyone messes around with stock options, then their job turns into a "brick."

P.S. Here are the aforementioned screen captures of myndex's macrumors post. Click to see larger, readable images.



The forums.macrumors.com version of Myndex's call for an iPhone class-action lawsuit, part 1 of 2. (Click picture to enlarge.)





The forums.macrumors.com version of Myndex's call for an iPhone class-action lawsuit, part 2 of 2. (Click picture to enlarge.)

[Update, Tuesday, Oct. 2, 11:30 am. See my follow-up post, Apple Sticking To Guns Amid iPhone 'Bricking' Fiasco, as well as California Lawyer Seeking Plaintiffs For iPhone Class-Action Suit.]

[Update: Friday, Oct. 5, 7:00pm. See Apple Class-Action Suit Filed By California Man Over iPhone Bricking.]

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