Law is often tri-state. For instance, at one time it was not legal to sell property to black people in certain neighborhoods in the US, because of legally binding covenants. This is the first state: prohibited.
The law was changed so that such covenants were not enforceable. However, that didn't mean black people could actually buy property in those neighborhoods. The property owners were still free to refuse to sell to black people. This is the second state: not prohibited.
The law was again changed, so that discrimination in real estate on the basis of race was illegal, and a seller could get in trouble if the seller used race to decide who to sell to. This is the third state: protected.
Lack of case law affords no protection. It just makes it hard to predict the outcome in advance.
So even in a situation where a court would award damages if a case was filed and malicious or negligent harm were proved, I'm not really sure it makes sense to say that anything was "prohibited" in advance.
New torts are invented, albeit rarely. Every so often there's a new duty of care in negligence. There are, I'm sure, other examples and the point is this: the lack of case law wasn't much help to the first defendant to lose on that point.
If an ecosystem for adapting and jailbreaking phones or cracking DRM for fair use grows up, then it will start drawing customers in if that's what people want.
At some point some of the original sellers will realize that if they remove the original locks themselves, their customers will get their unlocked phone with less money (just buying price instead of buying price + unlocking price), and eventually the markets make the shift because they are no longer constrained by the old legal monopoly.
I'm actually fine with losing service contracts and stuff for jailbroken devices. What I'm interested to see is how much ammunition this actually gives youtube to say "fuck you" when media companies send cease&desist notices and takedown letters and such to fair use youtube videos and that sort of thing. If there are no consequences for that sort of corporate bullying then it probably won't stop.
It would really be interesting for someone to try to make an argument under this law that Apple must show that jailbreaking the device caused the malfunction before refusing service.
That said, mentioning the guy who dropped his iPad and was pretty much asking for a favor (Apple does not cover accidental damage) is silly. In practice, Apple actually /does/ ignore jailbroken-nes ls of phones when it comes to serious hardware errors, and they have even stated as much in their DMCA commentary.
edit - Why was I voted down? Is it bad to ask questions? I thought others might be curious about this too. (BTW, thanks for the answer.)
Whether companies can implement things like eFuse or whatever is generally the realm of antitrust law, which is another ball of wax entirely.
"On EFF's request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones."
These things have existed on the grey market for a while, but legitimate businesses can't trade in such things. Now they can.
> Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls, which are governed by a different part of section 1201.
Edit: I think I'm confusing jail breaking with just untying a phone to a carrier. You can, of course, buy phones untied to a carrier already from Apple. However, you must still install apps via the App Store.
The change means that, i.e., Google, or TMobile, or some other legitimate competitor to Apple could use jailbreaking or unlocking as a competitive strategy in a way that Apple wouldn't like. For instance, Google could operate their own app store, and consumers could use Google software to unlock their device and install Google's app store.
While Apple does offer unlocked phones in some countries, they typically don't do so willingly. All of the unlocked phones that I am aware of come from countries that forbid locked phones to be sold.
(and given their decisions lately, I'd rather not see this particular court address these issues)