
How Apple is Breaking The Law With The App Store - bdfh42
http://whydoeseverythingsuck.com/2010/05/how-apple-is-breaking-law-with-app.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+WhyDoesEverythingSuck+%28Why+does+everything+suck%3F%29&utm_content=Google+Reader
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lutorm
Sounds a lot like the Magnuson-Moss act. From Wikipedia:

"Warrantors cannot require that only branded parts be used with the product in
order to retain the warranty.[2] This is commonly referred to as the "tie-in
sales" provisions[3], and is frequently mentioned in the context of third-
party computer parts, such as memory and hard drives."

~~~
illumin8
I'm not sure why Apple gets so much hate for this. I can think of at least 3
other companies that do exactly the same thing and have done for years:

\- Microsoft - Xbox and Xbox360 \- Sony - PS1, PS2, PS3, and PSP \- Nintendo -
NES, SNES, GC, Wii, DS

Why should Apple be treated any differently than any game console
manufacturer? Every one of those game console manufacturers void your warranty
if you mod them. Every one of them restricts which development tools you can
use to develop on them, and has very stringent application approval processes.

Why is it that Apple all of a sudden deserves special anti-trust attention? Is
it because they developed a game console that also happens to be a phone? Or
maybe it's because they developed the first phone that doesn't suck.

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krschultz
I've seen this analogy before and it is completely nonsensical.

If Microsoft and Sony were like Apple, you wouldn't have titles like Call of
Duty on both platforms. Everything would have to have been created originally
for one console, and one console only. Otherwise it wouldn't have been
"originally" created for it.

Is that what we see in the console world? Of course not. Sometimes the console
makers compete for exclusives, but they are exclusive because the company
writing the game is doing it that way, not because the console makers are
forcing them to.

Apple specifically tries to prevent that kind of cross platform thing from
happening on the iPhone.

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czhiddy
Apps like Mint and Facebook exist across the various mobile platforms (namely
Android + iPhone). Apple doesn't seem to ban apps that are cross-platform as
long as they're written with native APIs.

Now imagine if you took Call of Duty on PS3, and did a hacky port where you
stubbed DirectX code for the PSGL calls, and used some common denominator
between PS3's online service and XBox Live. I'd highly doubt Microsoft would
let this go to market, given how poorly it'd perform. Now imagine if these
ports were all automated by a third party layer.

In fact, I'm curious to see how many successful games out there use something
like Unity to allow PS3/XBox/Wii ports without any code changes.

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rauljara
What an exceptionally well argued point. I particularly like the author's
argument, because the only behavior that apple would have to change would be
its warranty policy; it wouldn't force apple to tear down it's walled garden,
apple just couldn't void your warranty if you chose to leave it.

~~~
stcredzero
I think it's reasonable to have Apple to honor its warranty on the _hardware_
if you can restore your jailbroken device to its standard configuration.
Unlike running a car with 3rd party components, there are almost no effects on
hardware that caused by running 3rd party software. The two exceptions I know
about being flash memory and the battery. Software can have a direct effect on
these. I would accept a waiver of warranty on these two components for running
non-Apple tested jailbroken software.

Oh wait, the baseband has a direct bearing on the functioning of the 3G or
mobile telephony hardware. Hmmm. I guess we'd have to waive the hardware
warranty on that part too for jailbreaks.

~~~
lutorm
This has been addressed for car parts. If you use aftermarket parts and your
car breaks, they can't void the warranty unless they can show that it was
reasonably caused by the non-standard part.

For example, if you "chip" your car and then blow a head gasket, they can
justifiably argue that this was caused by running the engine at higher power.
If the catalytic converter or the suspension breaks, they can't.

So if they can establish a case that the radio broke because the jailbroken
software ran it at too high power or whatnot, then they might have a case. If
it just fails, on the other hand, I don't think they can.

~~~
illumin8
The problem with modding a car is this:

\- If I mod a car such that it performs better, but violates emmissions and
safety laws, is such a modification legal for street use? The law says no.

Similarly:

\- If I mod the baseband firmware in my iPhone such that it lets me use it on
other carriers, but isn't approved by the FCC and might cause interference
with approved devices, is it legal to use it on the airwaves? The law also
says no.

Also, flashing the baseband firmware on a radio could definitely cause
permanent, irreversible damage. How can you legitimately expect any hardware
vendor to honor a warranty after this?

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sfall
I think that FCC approval is based on the frequencies of the antenna not the
carrier.

~~~
illumin8
The FCC approval is based on lab-testing of a specific hardware and firmware
configuration. They test it in the lab to make sure it doesn't step on other
licensee's frequencies.

Sometimes, just by putting a different antenna and hardware configuration on
the same radio, you can cause interference, harmonics, etc, that were not
present on a past model. This is why every new model of iPhone/iPad needs FCC
approval before it can be sold to the public.

Telling the general public that they can load whatever firmware they want on
their radio ignores the fact that these radios have highly complex software
algorithms affecting frequency hopping, collision detection, etc. It would be
like saying "anyone on our network can modify their Ethernet firmware" and
then wondering why someone took down the entire LAN because their custom
firmware did a broadcast storm.

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DenisM
Ok, so this guy really has no clue about antitrust law, so why even write
about "How Apple is Breaking The Law With The App Store"?

According to Sherman's Act, restrain of trade is only illegal when it can
serve to create or further a monopoly. You and I can agree to never deal with
particular Joe Shmoe, but as long as Joe has plenty of other choices in his
life it's ok.

The crucial point in defining monopoly is defining "the market". Apple is
nowhere close to monopoly in cell phones, so it's not possible no nail them
from restrain of trade in e.g. accessories using Sherman's act. Magnuson-Moss
act is another story, though (the same act makes illegal for car manufacturer
to void warranty if you use alien spare parts in repairing your car).

It gets a lot more interesting if you consider digital download music to be
it's own market - a clear near-monopoly and any anti-competitive tactics will
serve "to create or further a monopoly". Now would the court decide that
"digital music download" is a separate market from "plain old music
retailing"? This question is impossible to answer without litigation.
Similarly, "application software for mobile phones" may or may not be a
separate market from "plain old computer software". Apple is a near-monopoly
in the first and a blip on the radar in the second. Another interesting area
is "mobile internet access" - Apple is a near-monopoly in that "market" as
well.

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bobbyi
You are arguing with a strawman. Nothing in the article mentioned the Sherman
Act or said that Apple is a monopoly. If you think that the FTC and DOJ exist
solely to enforce that one law, you are incorrect.

~~~
DenisM
Restraint of trade (argument used in the article) is illegal pretty much only
under Sherman's act, and even then only in set circumstances. I don't see how
this argument can be about anything else other than Sherman's act.

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iamcalledrob
If US consumer law was stronger, these things wouldn't even need to be
debated.

In the UK the manufacturer's warranty is a nice bonus, but we have a legal
right from the _retailer_ the item was bought from to a
repair/replacement/refund.

If the act of you jailbreaking the phone caused it to stop functioning, you'd
have no claim.

But if the issue is a hardware issue, and the phone happens to be jailbroken,
the retailer would still have their obligations. You haven't damaged the
hardware, it's broken, you have a right to a repair.

UK consumer law also dictates that any product you buy should last for a
reasonable length of time, which can be up to 6 years. I think it'd be
reasonable to expect luxury electronics to last several years.

So the 1 year warranty? Sure, Apple can give you it, but it's in addition to
your consumer rights, which it can't change.

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ErrantX
The problem with this line of reasoning is that Jailbreaking does remove a lot
of protection built into the phone. I am guessing Apple could successfully
(and probably legitimately) argue that jailbreaking has to void warranty -
because any damage resulting from installing jailbroken apps is not their
responsibility. Say a virus targets jailbroken phones and rips into/destroys
the hard drive. Is it reasonable to expect to be Apple responsible for
replacing these phones under warranty?

If jailbreaking didn't void your warranty would more people do it? I suspect
not a huge amount more.

Also; while this is well argued it is essentially wrangling a legal point -
this kind of thing ends up getting stuck in court for years being decided.

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iamcalledrob
If hardware is properly designed, then software should not be able to break
it.

It would be exceptionally difficult to write software that manages to
physically damage a hard drive.

The only thing I could think of would be constantly writing to the SSD, using
up the write cycles, but that's a long shot too.

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butterfi
Woz would like to speak to you about his Prius.

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JunkDNA
The one issue I see with this line of reasoning is that Apple might make a
convincing argument that with a jailbroken phone, users could somehow disable
the hardware protection software that prevents the phone from being damaged
when used in excessive heat. I'm not fully up to speed on what other
protection mechanisms they have built into the phone (and whether or not you
can override them by jailbreaking), but I wonder if that isn't one of the main
reasons they would have this clause in there to begin with.

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confuzatron
Yes, that excuse occurred to me too. Obviously not the real reason for the
rule, but arguably a plausible enough excuse.

~~~
stcredzero
More than just an excuse. Software has been an integral part of heat
management in devices for over a decade. Also, the li-ion battery and the
flash RAM could be _physically damaged_ by incorrectly functioning software.

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joshwa
A few different ways the DOJ could approach the anti-competitive issues:

1\. Section 3.3.1 enforces monopoly in app development tools (GM won't allow
parts made using CNC milling, only hand-milled parts)

2\. App Store policies enforce monopoly over 175k+ apps/$1 billion+ iPhone App
market (can only buy 3rd-party parts for your car at a GM dealership, and
nowhere else)

3\. Apple approval needed to get on devices (GM has to approve all parts
before they go in your car)

4\. Apple takes 30% of developer revenues (non-OEM part manufacturers have to
pay GM to sell parts for your car)

5\. Using a payment mechanism other than iTunes is prohibited - e.g. a free
app that you pay for with paypal (can only use GMAC credit card to pay for
your car parts)

6\. Apple doesn't approve applications that compete with Apple's apps -
"duplicate existing functionality" (can't put aftermarket rims on your car)

7\. Installation of non-Apple-Approved software voids warranty (installing a
3rd-party part voids entire warranty)

(Many of these claims could, and should, apply equally to game console
manufacturers. The homebrew scene just lacks a public profile like Adobe, a
public enemy like Steve Jobs, and attorneys.)

Not sure if this is a valid legal heuristic, but as an exercise, imagine what
would happen should each of these restrictions be lifted. Would there be many
entrants into that market? Would innovation and value creation result? The
answer is unequivocally yes.

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psyklic
Why isn't this as simple as: If you don't like Apple's policies, then buy a
different phone next time? There are comparable Android-based phones ...

I still don't see a legitimate reason why people want to hang on to their
iPhones so badly, in light of this policy. Sure, the App Store has some good
apps, but obviously they don't have everything wanted since everyone wants to
jailbreak ...

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rimantas
Hint: you won't find the answer in the post. Just some speculation based on
(wierd, IMHO) assumption:

    
    
      This is problematic because if there were no fear of voiding warranty,
      undoubtedly many customers would jailbreak their iPhone, There would be
      alternate markets for iPhone software, and there would be a truly
      competitive marketplace.
    

Are apps in Cydia all coded in Flash, or Haskel? What does he mean by "truly
competitive"? Is it all because of the warranty clause, really? You can put
mp3 on your iPod from any source without voiding the warranty. Does not hurt
ITMS a bit.

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racketman4
This guy is neither an economist nor a lawyer, why should I listen to him?

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yxhuvud
Why do you think you should listen to economists?

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racketman4
"Economics is the social science that studies the production, distribution,
and consumption of goods and services."

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doron
Of course they can limit the grounds for Jail Breaking, if they allow side
loading of applications without the app store.

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nessence
Does warranty case law supersede DMCA?

Nope, didn't think so.

Blame IP law, and blame the DMCA, but don't blame Apple for being diligent.

~~~
hank777
actually the courts have explicitly said that the DMCA can't be used to
prevent interoperability. This is a well known case
[http://en.wikipedia.org/wiki/The_Chamberlain_Group,_Inc._v._...](http://en.wikipedia.org/wiki/The_Chamberlain_Group,_Inc._v._Skylink_Technologies,_Inc).

