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Two-Top Tuesday by jigordon
September 25, 2007, 1:55 pm
Filed under: contract terms, copyright, EULA, law, license grant, warranty

Thanks to Apple’s press release yesterday regarding iPhone unlocking tools and the iPhone’s warranty and license agreements, you get a special second-post (I’m also still feeling guilty about last week).

“CUPERTINO, Calif., Sept. 24 /PRNewswire-FirstCall/ — Apple has discovered that many of the unauthorized iPhone unlocking programs available on the Internet cause irreparable damage to the iPhone’s software, which will likely result in the modified iPhone becoming permanently inoperable when a future Apple-supplied iPhone software update is installed. Apple plans to release the next iPhone software update, containing many new features including the iTunes Wi-Fi Music Store (www.itunes.com), later this week. Apple strongly discourages users from installing unauthorized unlocking programs on their iPhones. Users who make unauthorized modifications to the software on their iPhone violate their iPhone software license agreement and void their warranty. The permanent inability to use an iPhone due to installing unlocking software is not covered under the iPhone’s warranty.”

This was the perfect opportunity to go read Apple’s iPhone license. At seven pages in 7-point font, it was a treat. Apple has taken the license to a state of one-sided nirvana (though I must admit that Apple isn’t the only vendor to have found Valhalla on this).

First the good news. There is no specific license prohibition on unlocking software. If a third-party application can unlock the iPhone without violating the terms of what most competent folks would consider a standard one-sided agreement, you’re still in the clear.

Now the bad news. As with almost any license, there are specific restrictions about reverse engineering, decompiling or otherwise taking things apart to figure out how they work. Based on the various announcements from places like Gizmodo and Engadget, it appears that the people developing these cracks are having to do at least SOME deconstruction. They, then, are violating the terms of the agreement. But if the unlocking software itself doesn’t decompile the iPhone software (and the end-user doesn’t have reason to suspect that the creator of the unlocking tool violated the terms of the license – which, unfortunately, most of them do as a result of the heavy-duty detailed articles in Giz and Engadget, among others), use of the tool by an unknowing end-user would not necessarily be a violation of the agreement.

There is also nothing in the agreement that will prevent Apple from releasing a product update that will “brick” (kill) an iPhone with unlock software on it.

But, if there is an unlocking tool that is 100% software, was created and runs like any other third-party application, Apple’s iPhone updates could still brick the iPhone, but use of the software wouldn’t be a violation of the agreement… and restoring the iPhone to its original state would be a simple fix – one which Apple should do under warranty.

As usual, though, there is another wrinkle. The DMCA (Digital Millennium Copyright Act) prevents circumvention of any copy-protection devices implemented (for an extreme situation, consider the Zune – which, even for music that you created from scratch still wraps with a copy restrictive time-bomb that you can’t disable, and is thus illegal to remove for your own self-created music). If the iPhone uses such device(s), avoiding them is a violation of the DMCA in addition to any pure copyright issues that would already exist. And each USE of the tool to do so would be another violation.

Overall, I make no recommendation here, but merely suggest, as with all licenses, that you understand the licenses you’re under so that you know what you can and cannot do.

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