Like many cell phone customers, you might be irritated that your service
provider locks you in. Shortly after Apple released its iPhone, hackers
developed unlocking software so the popular phone could be used on
networks other than AT&T. Since it has not been made official that the
iPhone is coming to Canada, many buyers are happy that they can unlock the
iPhone for use on networks like Rogers and Fido. However, should we
really be unlocking the iPhone?
Most people agree that unlocking the iPhone is a good thing. It is not
surprising in this era of users’ rights, but this development demonstrates
that perhaps society has progressed too far in the direction of user
rights. It is always important to remember the fine balance between the
users, the creators, the exploiters and industries, the public, and
governments. In this case, the scales are tipping too far in the
direction of user rights.
Apple has a legitimate right to strike exclusive arrangements with certain
carriers for use of the iPhone. After all, it created the iPhone – no one
is disputing that. However, as the argument goes, once a person buys an
iPhone, he or she takes ownership of the iPhone and should be able to use
it in whatever manner he or she sees fit. Indeed, corporations have no
moral rights. Still, having a locked iPhone is similar to other
applications created by Apple in the past. For example, Apple will not
let its Mac operating system run on any computer except ones made by
Apple, and it locks up songs that customers purchase from the iTunes music
store with digital rights management technology. Why, then, is the iPhone
creating such an uproar when “locking” has been in place for some time?
An analogy is helpful here. When people purchase Bell ExpressVu satellite
receivers, they do not expect to receive Rogers or Starchoice programming
through those receivers. Similarly, how can purchasers of the iPhone
expect to receive service through a provider that was not intended to
provide service for the iPhone from the very beginning?
Does the locked iPhone “lock” people out of their own digital devices?
Apple made it clear from the outset that if you buy an iPhone, you must
subscribe to a two-year contract with AT&T. Purchasers knew the iPhone’s
warranty would be void if it were unlocked. Why did they purchase the
iPhone if they were so concerned about this?
Some argue Apple wants to keep the iPhone locked because it reaps profits
from the service contract. If so, a solution could be to emulate what
companies like Rogers and Bell are doing: charging a lower price when
selling phones with service plans, and charging a higher price when
selling phones without service plans. Apple could sell its unlocked
iPhone for $800, but that leaves AT&T in a poor state, since it makes
profits off the service plans and pays to have the exclusive iPhone rights.
It is simply better to keep the iPhone locked. It benefits the owner,
Apple, because Apple gets a cut from each AT&T subscriber. It benefits
AT&T, who worked with Apple to develop some features of the iPhone. It
also benefits the user, because the warranty remains valid and updates are
readily accessible. Additionally, keeping the iPhone locked increases the
spirit of innovation and creativity. Other phone networks see the demand
for the iPhone, and they will say “Let’s make a phone that is just as good
or better” instead of simply allowing the unlocked iPhone to be used on
their networks. Lastly, keeping the iPhone locked helps prevent any
Unlocking the iPhone encourages service providers to piggyback on the
efforts AT&T made in developing the iPhone with Apple. It discourages
improvement on the existing iPhone, since Apple will not be receiving any
money from the plans that customers have with other service providers.
Lastly, it does not give proper acknowledgment to the creator of the
iPhone. If the iPhone’s rights were owned by an individual instead of a
corporation, would we feel differently about whether the creator deserved
We must always remain mindful of the balance between users’ and owners’
rights, which it seems we have forgotten with the iPhone. One thing is
certain, however: all this hype about the iPhone has increased demand, and
now the iPhone is the eighth most wanted Christmas present in Canada.
Maybe the unlock is not so bad for Apple after all.
Whereas Jennifer Schwass argues that Apple ought to be free to keep iphones locked, I note that this argument is not as simple as she makes it.
The Apple iphones locked versus unlocked issue represents an interesting legal issue wherein intellectual property, competition and criminal law intersect, and public and private domains collide.
In the public domain, governments can choose to legislate against the locking : this has recently taken place in Germany. In France, in a similar vein, the French National Assembly wished to compel itunes to share the code(s).
Governments could support the ‘locking’. For example, in Canada, users of the iphone, or hackers who enable the iphone to be used on other than licensed networks on behalf of iphone users, could arguably be prosecuted under the Criminal Code for theft, theft of telecommunication service, or possession of telecommunication device, under section 322, 326, or 327, respectively, of the Code. Whether such a prosecution would succeed would in turn depend upon the terms of the ‘contract’ between Apple iphone, and the iphone purchaser. Likely the government would prosecute as they do when people pirate copies of movies, etc.
In the private arena, Apple could sue iphone users, and/or hackers who violate the terms of the contract, whether such lawsuits would depend upon the terms of the contract and/or whether or not such a contract was contrary to public policy or other defences. Equally, iphone users could launch a lawsuit against Apple, either individually, or more likely on a class action basis. Here are all the legal issues it raises, IP is not the only issue.
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